Introduction
Effects of criminal judgment of conviction in trials for civil or administrative damages
Effects of criminal judgment of acquittal in trials for civil or administrative damages
Effects of criminal judgment of conviction or acquittal in other civil or administrative trials
Comment
The principle of "res judicata pro veritate habetur"(1) means that, in most legal systems, final judgments no longer subject to appeal or revision are definitively binding upon the parties and their heirs and the ascertainment of truth contained therein is considered irrefutable.
Judges and scholars have been discussing the objective and subjective limits of the res judicata effects of judgments and Italian lawyers make no exception: while the effects of a final judgment rendered in civil proceedings have been widely studied by Italian scholars, specific rules exist when it comes to the effects of judgments rendered by criminal courts in subsequent civil or administrative proceedings.
With the Code of Criminal Procedure 1988 (CCrP) and the abandonment of the centrality of criminal jurisdiction, the principle of reciprocal autonomy of civil and criminal proceedings was introduced, with the consequence that criminal judgments have res judicata effects in subsequent civil or administrative proceedings only under the conditions set forth in articles 651 ff of the CCrP. Being exceptions to a general principle, these rules are subject to restrictive interpretation.
According to these provisions, the scope of the res judicata effects of criminal judgments significantly differs from the effects of a civil decision. Whereas the latter may finally ascertain or deny the existence of rights, obligations or other legal situations protected by law, criminal judgments are binding only as far as they ascertain or deny the existence of objective facts and whether such facts amount to a criminal offence, as specified in the following paragraphs. Moreover, it has been stated that the res judicata effects are limited to the ascertainment of objective facts (actus reus) and do not extend to the subjective element of the crime (mens rea) due to the different notion of the culpability applicable in civil law.(2)
Before addressing the issue in further details, it must be remembered that, in Italy, a person injured by a criminal offence that also constitutes a tort can bring a civil action for restitution or compensation for damages against the tortfeasor by either joining criminal proceedings before a criminal court as a civil party (articles 74 ff of the CCrP) or initiating separate civil proceedings before a civil court. This choice is not neutral as long as it triggers different rules on the applicable standards of proof and on the res judicata effects of criminal judgments in subsequent actions.
Effects of criminal judgment of conviction in trials for civil or administrative damages
Article 651(1) of the CCrP deals with criminal judgments of conviction, and it states the effects of such judgments in civil and administrative proceedings for restitution and compensation of damages as follows:
The final criminal judgment of conviction delivered after a trial shall have binding effect, with relation to the ascertainment of the criminal act, of its criminal unlawfulness and its commission by the accused, in the civil or administrative trial for restitution and compensation of damages brought against the convicted person and the person with civil liability for damages who has been summoned or has intervened in the criminal proceedings.(3)
Therefore, under article 651 of the CCrP, the defendant is bound by the final criminal judgment of conviction rendered after a full trial(4) as regards the ascertainment of the existence of the fact, its criminal illegality and the statement that the defendant committed it.(5)
It worth noting that, according to this provision, anyone may invoke the res judicata against the convicted person, who is thus exposed to the adverse effects of the judgment erga omnes.
Such a rule favours the person injured by a crime, who can rely on judgments of conviction even when they chose not to join the relative criminal proceedings as civil party. At the same time, it constitutes the most relevant exception to the principle of reciprocal autonomy of civil and criminal jurisdictions.(6)
Effects of criminal judgment of acquittal in trials for civil or administrative damages
Article 652 of the CCrP deals with criminal judgments of acquittal, and it states the effects of such judgments in civil and administrative proceedings for restitution and compensation of damages as follows:
The final criminal judgment of acquittal delivered after a trial shall have binding effect, with relation to either the ascertainment that the criminal act did not occur, or the accused did not commit it or the act has been carried out to perform a duty or to exercise a legal right, in the civil or administrative trial for restitution and compensation of damages brought by the injured person or in his interest, provided that the injured has joined the proceedings as a civil party or has been given the possibility to join the proceedings, unless the injured has already brought the action in civil court, under Article 75, paragraph 2.(7)
Accordingly, in civil proceedings for restitution or compensation of damages, a final judgment of acquittal rendered by a criminal court has res judicata effects in civil proceedings provided that:
- the judgment was rendered after a full trial;(8)
- the injured party had joined the criminal proceedings as a civil party or was otherwise given a chance to participate in such proceedings and chose not to file a separate civil complaint under article 75 of the CCrP; and
- the defendant was discharged with one of the acquittal formulae mentioned in article 652 of the CCrP, which expressly indicate that "the criminal act did not occur", "the accused did not commit it" or "the act has been carried out to perform a duty or to exercise a legal right".(9)
However, even in the presence of acquittal formulae such as those considered above, the Italian courts have denied the res judicata effects in cases where the acquittal appeared to be based on the "insufficiency of proofs", rather than on a full acknowledgment that the crime did not occur or that the defendant did not commit it.(10)
In cases like those considered above, the res judicata effects of the criminal judgment preclude the possibility of claiming restitution or compensation for damages in civil proceedings. However, based on different circumstances, other forms of civil liability of the defendant are not intrinsically precluded.
Moreover, the injured person can choose to avoid the effects of a judgment of acquittal by bringing a civil complaint before a civil court by the time limits set in article 75 of the CCrP. By doing so, the injured party renounces to avail themselves with the proof collected by the public prosecutor, but also avoids the higher standards of proof of criminal proceedings which are imposed to issue convictions only when the defendant is found guilty beyond any reasonable doubts.(11)
Effects of criminal judgment of conviction or acquittal in other civil or administrative trials
Concerning civil proceedings other than those for restitution or compensation of damages, article 654 of the CCrP states the following:
The final criminal judgment of conviction or acquittal delivered after a trial shall have binding effect in the civil or administrative trial on the accused person, the civil party and the person with civil liability for damages who has appeared or intervened in the criminal proceedings. Such effect shall be valid only if the trial concerns a right or a legitimate interest that may be recognised by ascertaining the same material acts that were under prosecution, provided that the ascertained facts were considered essential for the purposes of the criminal decision and provided that civil law sets no limitations to evidence of the controversial subjective stance.(12)
Therefore, the rule at hand deals with the res judicata effects of a criminal judgment of acquittal or conviction in civil proceedings other than for restitution or compensation of damages. Civil proceedings to which this rule applies include, for instance, those for the acknowledgment or attribution of a subjective right or legitimate interest, to the extent that such declaration depends on the same material facts that were the subject of the criminal proceedings.
The res judicata effects under article 654 of the CCrP are limited. They only operate provided that:
- the decision is rendered by a final judgment after a full trial;
- the res judicata effects are invoked with regard to a person who was effective party to criminal proceedings;
- the res judicata effects are invoked with respect to material facts that are essential for the decision taken in the criminal proceedings; and
- under the relevant private law rules, no limitation applies to the rules of evidence available to the parties (eg, legal presumptions or proofs to be mandatorily given by written document).
In all other cases not falling within the scope of articles 651 ff CCrP,(13) the relevance of a criminal judgment and of the evidence collected in criminal proceedings is subject to the discretional review of the civil court. Among them, judgments of application of the penalty upon request of the parties pursuant to article 444 of the CCrP are generally considered by the courts as indications of the occurrence of the tort.(14)
As it is clear from the brief overview of the relevant provisions, the rules on the effects of criminal judgments in subsequent civil or administrative proceedings varies depending on the proceedings followed in the criminal trial,(15) the decision rendered and its contents, the parties joining criminal proceedings and the nature of the subsequent action.(16)
If it is true that the discipline bears some inconsistencies and seems to favour the injured party over the defendant, it must be acknowledged that it tries to strike a difficult balance between different interests (primarily, the right of defence, the judicial protection of the injured parties, the autonomy of proceedings, the legal certainty and the economy of procedure).(17)
For a foreign lawyer, the assessment regarding the res judicata effects of a criminal judgment under Italian law may prove relevant to the extent that, under the foreign legal system, a civil action filed against the accused who was acquitted in the Italian criminal proceedings may be dismissed on the grounds of a foreign res judicata defence. In particular, common-law courts are often called upon to consider the extent to which a foreign judgment would have res judicata effects in the jurisdiction where it was rendered.
For further information on this topic please contact Marco Torsello or Enrico Pedrotti at ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello by telephone (+39 02 8425 4810) or email ([email protected] or [email protected]). The ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello website can be accessed at www.arblit.com.
Endnotes
(1) "An adjudicated thing is regarded as the truth". See A Fellmeth, M Horwitz, Guide to Latin in International Law, 252 (2009).
(2) Accord, Court of Cassation, Judgment No. 4404 of 28 February 2006. See also D Vigoni, L'effetto vincolante del giudicato penale in altri settori dell'ordinamento: le coordinate normative in Rivista di diritto processuale, 919 (2017).
(3) Unofficial translation by Gialuz, Lupària, Scarpa (eds), The Italian Code of Criminal Procedure, 508 (2017).
(4) Under the CCrP, proceedings with a full trial are:
- the ordinary trial (article 470 ff of the CCrP);
- the direct trial (articles 449-452 CCrP); and
- the immediate trial (articles 453-458 CCrP).
In addition, article 651(2), dealing with summary trial, states that final judgments of conviction rendered after a summary trial shall have the same effects, unless the civil party has not accepted the summary trial. See Zoerle, Sui limiti soggettivi all'efficacia extrapenale del giudicato, in Rivista Italiana di Diritto e Procedura Penale, para 4 (2018).
(5) Pursuant to article 651 bis, the same effects are attributed to judgments of dismissal due to the triviality of the offence.
(6) For a critic comment, see MA Zumpano, Rapporti tra processo civile e processo penale, 344 (2000).
(7) Unofficial translation by Gialuz, Lupària, Scarpa (eds), supra No. 3, 509.
(8) However, under article 652(2), unless the civil party has not accepted the summary trial, the final judgment of acquittal rendered after a summary trial has the same effects of the judgment rendered after a full trial.
(9) Therefore, judgments that acquit the defendant with different formulae (namely, "the act does not constitute an offence" or "the act is not deemed an offence by law") do not have res judicata effects in civil proceedings and the civil court remains free to review the relevant facts.
(10) Accord, Court of Cassation, Judgment No. 4764 of 11 March 2016; Court of Cassation, Judgment No. 20252 of 25 September 2014; Court of Cassation, Judgment No. 3376 of 11 February 2011. See also, for example, P Tonini, Manuale di procedura penale, 1011 (2017).
(11) See article 533 of the CCrP. On the contrary, the standard of proof used in civil proceedings is based on the criterion "of the prevailing probability, which substantially corresponds to the North American formula of the preponderance of evidence" (M Taruffo, La prova del nesso causale, in C De Maglie, S Seminara (eds), Scienza e causalità, 109 (2006)).
(12) Unofficial translation by Gialuz, Lupària, Scarpa (eds), supra No. 3, 509.
(13) For the sake of completeness, article 653 of the CCrP deals with the effects of criminal judgment in a subsequent administrative disciplinary trial before special public authorities, such as disciplinary proceedings against professionals registered in public registers (for lawyers registered to the Bar, see, for example, Court of Cassation, Judgment No. 13975 of 26 July 2004).
(14) Accord, Court of Cassation, Judgment No. 20170 of 30 July 2018; Court of Cassation, Judgment No. 13034 of 24 May 2017.
(15) Proceedings with a full trial (ie, the ordinary trial, the direct trial and the immediate trial), summary trial or other special proceedings (ie, the application of the penalty upon request of the parties and proceedings by decree).
(16) Vigoni, supra No. 2, 939.
(17) Tonini, supra No. 10, 1006; Zoerle, supra No. 4, para 8.