Increasing Discretionary Prosecutor’s Powers: The Pivotal Role of the Italian Prosecutor in the Pretrial Investigation Phase

This essay considers the increasingly prominent role played by the prosecutor in the Italian criminal justice system, focusing on the investigation and pretrial phase. The assumption is that in the past two decades the trial phase has lost its relevance and that the crucial decisions for the outcome of criminal proceedings are made more and more often during the investigation and pretrial phase, where the prosecutor enjoys considerable discretion, although formally the legality principle still rigidly rules in the Italian system. Two steps need to be taken to improve the current situation and to fill the gap between reality and theory. The first is starting to interpret the principles of the constitution as allowing discretionary choices by the prosecutor. The second is to strengthen prosecutors’ accountability, but without affecting their independence from the government.