By Paolo D’Anselmi†
1. Introduction
One of the tenets of democratic – and perhaps totalitarian – governance is the impartiality of public administration. Public managers in fact are supposed to take decisions without discriminating between one citizen and the next citizen nor between one politician and the next politician. This is the quality of public managers called impartiality.[1]Impartiality implies that public managers treat all citizens (and all politicians) “on the same plane’. Such geometrical metaphor makes us call this kind of impartiality ‘horizontal impartiality.” However, there is one aspect of impartiality that is not considered in public law: discrimination on the part of public managers between themselves and the rest of society. The purpose of this essay is to show by empirical evidence the existence of such “vertical partiality”[2] of public managers, thus adding one dimension to inequality.
A first element of originality of this essay lies in its identification of the judicial system as a natural experiment in the evaluation of the quality of decision-making. Judicial rulings in fact, are decisions about decisions: a conviction is an approval of the decision to send the case to court; an acquittal is a negative evaluation of the decision to send the case to court. The judicial system has an inherent characteristic as an evaluation process.
This essay is also original because it provides a behavioral interpretation of managerial non-financial data on a key decision-making process of public administration whereas the mainstream interpretation is that the judicial systems is not endowed with enough resources.[3]
As pointed out, the methodology of this essay is based on a natural organizational experiment identified in the judicial system’s inherent characteristic as an evaluation mechanism on the quality of decisions. Therefore, conviction and acquittal statistics provide quantitative evidence on the quality of decisions made by a specific category of public managers: public prosecutors. The specific kind of decision that is examined here is whether to dismiss or send a case to court. Relevant theory is shown correct by induction.
The structure of the essay is as follows: section 2 recalls the relevant literature; section 3 illustrates criminal procedure in a comparative perspective, the empirical evidence, and the findings; discussion of possible remedies is in section 4; future studies are discussed in section 5; section 6 finally wraps the essay up with conclusions.
2. Literature review
This section presents the literature that is relevant to the thesis of this essay. The first subsection shows the importance of impartiality in public law and a second subsection illustrates the theory about organizational behavior that the essay hypothesizes to be the basis of the observed behavior.
2.1 Impartiality as a key element of public administration
Public law identifies impartiality as a key quality of public administration. Let us examine a sample of US and UK legislation proposing or protecting the value of public administration impartiality. US legislation for instance focuses on conflict of interest, whereby one member of public administration prefers him or herself to the rest of society[4]. UK legislation[5] and the Italian constitution[6] are more explicit about impartiality as a major quality of public administration.
Following the taxonomy started above, conflict of interest could be dubbed as “subjective vertical partiality,” whereby an individual prefers himself to the institution. Going further, there appears to be a gap in public law because it does not take into account the possibility of an ‘objective vertical partiality’ of public administration, i.e. the possibility that public employees give priority to their own needs and aspirations in the process of performing their organizational tasks just by virtue of public administration’s organizational arrangements rather than by their own subjective inclinations and personal interest[7]. Such “objective vertical partiality” – or simply vertical partiality – is the subject of this essay. The key idea of this essay is to capture an empirical instance of such vertical partiality. Before we do that, let us recall the specific literature upon which the notion of vertical partiality is based.
2.2 Bureaucratic Behavior
Different from public law, literature on organizational behavior does contemplate “objective vertical partiality” when dealing with monopolistic organizations, like public administration.[8] One specific microeconomic formulation of the utility function of the monopolistic public manager is due to William Niskanen, who theorized the bureaucrat’s pursuit of “ease of management.” The following citation puts such theory into perspective:
“A further step beyond Max Weber’s model was made by Gordon Tullock in his The Politics of Bureaucracy. He uses the concept of the maximizing bureaucrat that had been introduced by C. Northcote Parkinson as a basis for his analysis of bureaucracy. On the basis of the intuitions and suggestions of Tullock, William A. Niskanen, in his seminal article ‘Non-market decision-making – The Peculiar Economics of Bureaucracy’ translated the principles of the maximizing bureaucrat into an economic theory in full mathematical form based on the following axioms: (1) Bureaucrats maximize the total budget of their bureau, given demand and cost conditions, with the constraint that the budget must be equal to or greater than the minimum total costs at the equilibrium output. (2) Bureaus exchange a specific output (or combination of outputs) for a specific budget. Therefore, as in the free market, every actor pursues the maximization of his own utility either by profit or by the satisfaction of one’s own needs. Likewise, the public manager or bureaucrat, far from being a monk without needs, maximizes his own budget as a proxy for such utility providing factors as: ‘salary; perquisites of the office; public reputation; power; patronage (opportunity to provide and receive protection); ease in managing the bureau; ease in making changes (in his bureau).” [9]
Prosecutors are public managers; their bureaus are here hypothesized to follow the two Niskanen axioms and individually they are here hypothesized to maximize their utility function deriving from the Niskanen axioms; in particular, they are here hypothesized to pursue the “ease of management” factor of their utility function. The present hypothesis, of course, does not imply an awareness on the part of prosecutors; prosecutors are not implied to consciously pursue “ease of management” nor it is implied they are not hard working managers. The microeconomic model is in accord with the positive economics model “as if” methodology .[10]
The idea here is to see prosecutors as public managers making “non-market decisions,”[11] independent as much as possible of the specifics of their judicial function. The research question is: are public managers behaving with impartiality between themselves and society? Operationally, such question becomes the hypothesis we cannot reject: prosecutors in Italy are sending to the court for pre-trial hearings a higher quantity of cases than their capability of winning them would warrant. The relevance of Niskanen’s axioms is also dealt with in Section 3, where criminal systems are examined in a comparative perspective.
Notice in Niskanen the importance of monopolistic organizational arrangements of public administration as underlined by Oliver Williamson.[12] While William Niskanen provides an economic theory outside of the realm of public administration, his theory is in accord with Bruce Ackerman’s view of public administration as “the fourth branch of government: the bureaucracy.”[13] In Ackerman’s words: this essay wants “to embrace the distinctive structural problems involved in controlling the fourth branch of government,” the bureaucracy.[14] It is worthwhile to point out here the following distinction: administrative law in Ackerman’s article refers to U.S. Departments of federal government and their role. This system is distinct from state criminal justice systems. This essay however, looks at national public administrations as an example, as a part for the whole, in a comparative perspective.
Members of the judicial system may not perceive themselves as part of public administration, however they do verify Niskanen’s axioms as being part of the bureaucracy. Moreover, in some countries they do perceive themselves as part of public administration even from a functional point of view.[15]
Having recalled the relevant literature, let us now examine one specific empirical instance of ease of management: moving decisions forward, i.e. , needing more information in order to arrive to a decision which represents the essence of bureaucratic decision-making. This is vertical partiality in action: the bureaucrat pursues his or her own utility function irrespective of the consequences for the mission of the public organization he or she is part of.
3. Empirical evidence
Public prosecutors do make decisions. As such they are public managers. One type of key decision public prosecutors make is whether to file a criminal complaint (send a case to court) or dismiss it.
Let us provide first an overview of criminal procedure in Italy, the US, the UK, and Germany.
3.1 Comparative criminal procedure
The analysis we are trying to make here is ceteris paribus, independent of each country’s criminal code and – as much as possible – independent of the pre-trial procedure. Therefore, let us provide here an overview of comparative criminal procedure in Germany, Italy, UK, and US, which are the four countries we are going to provide quantitative data about. Prosecutors are the “gate keepers of criminal justice.”[16] Therefore, this essay focuses on the prosecutors as shorthand for the whole decision-making chain of intermediate proceedings, between the end of investigation and the beginning of trial.[17] The subsequent paragraphs provide an in-depth discussion of such decision-making chain in the countries we are considering, pointing out similarities and differences, in order to ascertain the impact that such differences may have on the basic hypothesis of this essay: that we cannot reject the hypothesis that prosecutors in Italy are moving decisions forward to trial in order to obtain more information and ease their own work.
In all four countries the burden of proof is on the Government and “criminal proceedings are divided into three stages: investigation, intermediate proceedings, and trial.
When the investigation is complete the prosecutor will decide whether to discontinue the proceedings”[18] or whether to press charges on the suspect.
Thus, “[i]n the intermediate proceedings a court assesses the charge and decides whether or not the prosecution should proceed.”[19]
In Italy the court that assesses the charge and decides whether or not the prosecution should proceed is the judge for pre-trial hearing (in Italian: giudice per l’udienza preliminare – “GUP”). In the US such court is the Grand Jury.[20] In the US the pre-trial is called “Preliminary Hearing” and it is a “mini-trial.”[21] In the UK, such court is the Magistrates Court or the Crown Court, depending on the seriousness of a crime, and the proceedings are called pre-trial court hearings.[22]
There are variations in the intermediate proceedings. The main variations are “summary proceedings”, “discontinuation of proceedings”, and “expedited proceedings.”[23] Variations are available in all countries, with different nuances, that are discussed in the following paragraphs.
Summary proceedings are available in Germany and Italy.[24] In Italy this happens when the defendant is subject – for instance – to arrest. In that case, there is no pre-trial hearing and the case is sent to court for trial by the “judge for investigation” (in Italian: “Giudice per le indagini preliminary” – GIP).
Discontinuation of proceedings is available in all countries considered here, whereby the prosecutor decides to not press charges and not to proceed to court for trial.
Expedited proceedings (in Italian: “rito abbreviato”) is available in Germany and Italy. In the Italian case, the defendant accepts the available evidence produced by the prosecutor and has access to the benefit of one third reduction of the penalty. In the US and UK, such variation appears to be absorbed by the plea deal, as discussed below.
More differences in the intermediate proceedings are also discussed with reference to the following items: discovery of information, hearing of witnesses, plea deal / plea bargaining, and likelihood of conviction.[25]
Discovery of information available to the parties involved happens in Italy before intermediate proceedings whereas in the US and UK it appears to happen during intermediate proceedings. However, in both cases discovery of information does happen before the preliminary hearing.
Hearing of witnesses happens – in a preliminary fashion – in the US during intermediate proceedings whereas it happens in Italy only at the trial and it does not take place during intermediate proceedings.
Plea deal and plea bargaining is available in Italy (in Italian: “patteggiamento”) and the US at least. Such possible deals are struck before going to trial and take place instead of ordinary trial. In the US, plea deal appears to be more flexible than in Italy. This essay does not include analysis and data on plea deals. Only the prosecutor (and the court) decisions are analysed, net of ritual variations.
One specificity of the German intermediate proceedings is that if the court that assesses the charge believes that there is enough evidence to make a conviction likely, it will open’ the trial. Such concept of likelihood of conviction is not present at this time in the Italian criminal procedure.[26] Reform to introduce such concept has been passed, but it is not operational at this time yet this law was dubbed as the ‘Cartabia Reform’; it was put in place by the Draghi Cabinet Minister of Justice Marta Cartabia.[27]
However, in Italy prosecutors do discontinue a large share of cases, which is interpreted here as an implicit evaluation of likelihood of conviction, albeit current procedure does not make such wording explicit.
As said above, intermediate proceedings are the focus of this essay. This essay deals only with outcomes of trial through ‘ordinary procedure’, where the defendant decides to go to court for trial and does not opt for one of the available variations outlined above. For the purpose of this essay, the key point in the intermediate proceedings is that all variations (plea deal, for instance) are known and exercised when the prosecutor and the court decide to send the case forward to trial.
For instance, it may be the case that the prosecutor offered a plea deal, and the defendant refused the deal and exercised their right to a trial. The key concept is that all available choices are known to all parties at the time of going to trial. However, the prosecutor and the court still decide to send the case to trial, thus being responsible for the possible acquittal as an outcome of the trial. If a defendant was offered a plea deal and refused it, that may be an indication of at least partial innocence of the defendant.
The significant differences – especially vis-à-vis the US criminal procedure – lay in the hearing of witnesses and plea deal flexibility. Hearing of witnesses in Italy does not happen in the intermediate proceedings, thus leaving Italian prosecutors and courts without an important piece of information. Plea deal lower flexibility in the Italian case may also account for the less significant use of this institute in Italy. Such differences may account for at least part of the higher propensity of Italian prosecutors and courts for sending cases to trial.
One may further object that it is unclear that prosecutors’ moving decisions forward is the key reason criminal cases advance to trial. In fact, in doing so prosecutors have to prepare for trial, which is a significant amount of work. This should be an incentive to create plea deals rather than having each case go to trial. Having so far made comparative considerations about norm, it is probably necessary to also deal with issues of praxis, or implementation of the norm, in the following.
In moving decisions forward, prosecutors do congest the judicial system and complicate their own work among other things. However, this is a long run and strategic incentive and a system incentive, meaning the congestion is for all and the individual caseload appears more as a sign of ‘having a lot of work to do’ than as a sign of moving decisions forward. Short run incentives on the other hand, are for starting a lot of cases. In fact, cases are in the news especially in their initial steps, such as arrest and seizure of wealth.
Also, police investigators – who help prosecutors – have short run incentives; for instance, they receive a ‘career praise’ (‘encomio’) when they make an arrest or gain media visibility. The media on the other hand, propose the investigator words verbatim to the public, in the indicative mode, s a matter of fact rather than an investigative hypothesis.
Take also into account that the scheduling of trials in Italy happens in a sort of ‘round robin’ fashion (borrowing a term from the multitasking fashion computers process different tasks through their central processing unit). The hearings of one trial are intertwined over time with the hearings of many other trials, possibly rotating the whole stack of the court between one hearing and the next hearing of the same trial. It is not uncommon that a trial may last years. Whereas in the US the hearings of one specific trial are scheduled more frequently (in the matter of days and weeks, probably) and the length of one trial is likely to be measured in months rather than years. So, the workload of one prosecutor is sensitive to the ‘moving forward’ of decisions only in the long run and it is not specific to having made a decision one way or the other.
Moreover, in Italy dismissing a case needs writing a dismissal document (in Italian: “sentenza”) on the part of the prosecutor – which can be opposed by one of the parties involved or evaluated by internal control – while sending a case to court is a simpler procedure and is not subject to evaluation.
Niskanen’s axiom of budget maximization is implied by system congestion; if the system is congested, prosecutors – and the courts in general – can ask the government for extra budget; if the system is not congested and it works fine, it is harder to ask for extra budget to obtain more action and better results. In Italian praxis, only pre-trial motions are entertained in the pre-trial hearings, and the pre-trial court does not check the available evidence. The pre-trial courts act this way, claiming they do not have the resources to perform “mini-trials.” Thus, they take the issue back to the lump sum amount of resources available to the courts, which is Niskanen’s second axiom. In fact, in the Italian procedure, prosecutors do not have any personal incentive to pursue the conviction of defendants, because the outcome of trials is not taken into account in the evaluation of prosecutors or judges for advancement in their careers. Rather, career advancement is mostly based on seniority. However, lawyers in Italy argue the prosecutors maximize the number of trials in order to saturate the defendants’ resources – financial and physical (time, attention, emotions).
In summation, the Italian procedure appears to not take into account the cost of trials to society.[28] Such costs are imposed on the criminal procedure system (for instance, congestion of courts), and are imposed on defendants (for instance, financial and human cost of undergoing investigation, pre-trial hearings and trial). However, the bigger costs appear to be imposed on society as a whole, due to the ineffective public perception and low deterrence effect of criminal proceedings, which in turn feed back into defendants avoiding plea deal proceedings. Plea deal proceedings are seen here as an endogenous variable of the whole justice system.[29]
3.2 Data
Let us now present data from the Italian judiciary, then we will provide comparative data with the US, UK and Germany.
First President of Italian Supreme High Court,[30] Pietro Curzio, provided data at the inauguration of the judicial year 2022[31]. We have data observations from the stock of pending cases on: (1) the end of the investigation phase of cases under investigation and (2) the ruling of trials that came to be defined in the solar year between July 1st, 2020 and June 30th, 2021.
- Out of the pool of cases under investigation, a decision was made for 676,071 cases. Of these, the public prosecutors’ decision was ‘dismiss’ in 429,898 cases or 63.6 percent of the total[32]. The rest was sent to court for trial.
- In that same year, 163,819 rulings on cases of “ordinary procedure” were delivered; of these, 54.8 percent were acquittals; 8.4 percent were mixed rulings; and 36.8 percent were convictions.[33]
Such empirical evidence leads us to formulate the following findings: in situation (2) cases sent to court were acquitted in over 50 percent of cases. Such considerations may lead us to formulate the hypothesis that public prosecutors do not take into account the “likelihood of conviction” in their decision-making.[34]
Situation (1) aggregate data lead us to think that public prosecutors file complaints to check and probe the evidence available prior to trial. Their decisions are not discriminating enough. This means public prosecutors are moving cases forward for the judges to check and probe the available evidence. Public prosecutors themselves appear to be following the popular adage: “Sue me,” in other words: “Let us hear what a judge has to say about this; I won’t take responsibility for dismissing this case.”[35]
Such empirical evidence is in accord with the above literature on pseudo-rational or self-serving organizational behavior of public administration whereby public managers pursue “ease of management” and minimize risk.
This essay illustrates how the comparative empirical data on conviction rates creates fertile ground for development of hypotheses regarding the impact of the administrative state on conviction rates. This essay is an element of comparative study of criminal justice systems. Therefore, in order for the reader to better relate to the subject of the essay, similar data are provided in the following for a very small selection of national justice systems: the US, the UK and Germany (this last, cited comparatively by Curzio).[36]
In the USA , “about 90 percent of the federal defendants and 75 percent of the defendants in the most populous counties were found guilty.”[37] Comparatively, “the conviction rate in England and Wales was 82.3 percent in magistrates courts and 79.1 percent in crown courts, as of the third quarter of 2021.”[38] Meanwhile, “[i]n 2020, the courts in Germany convicted approximately 699,300 [82 percent of the total] defendants by final judgment. The criminal proceedings against another roughly 153,300 [18 percent] people ended with court decisions other than convictions (for example, acquittal or dismissal of proceedings) in 2020.”[39] Statistics for the three countries examined are in accord with each other and are very distant from the statistics from Italy.[40]
4. Wider impact and possible remedies
If public managers do not take responsibility for action, that runs counter their function. Such finding undermines the very existence of bureaucracy and it shows the limits of the current organizational arrangements of public administration. It is proposed here that the root cause is to be traced in the monopolistic organizational arrangement of justice and the absence of mitigating factors of such monopoly. Factors mitigating monopolistic power can be identified as personnel rotation, virtual competition or evaluation and meritocracy among public managers. Identifying key processes and keeping track of statistics is a first step.
Specific remedies could include keeping statistics for each prosecutor. The only idea of keeping individual statistics may have an effect. Moreover, the evaluation and rewarding system of prosecutors could take such statistics into account.
With regard to remedies, it is worth mentioning that when the Minister of Justice, Marta Cartabia, in 2022 proposed an evaluation system for the Italian magistrates, the trade union of the magistrates objected that “could generate anxiety.”[41]
The proposed reform states that the judge for the preliminary hearing (GUP) should send to court only in the case of a “reasonable prognosis of conviction” (in Italian: “ragionevole previsione di condanna”). Simply making the statement, without any specific measuring action, does not appear to change the incentives for individuals in the process, therefore it will probably not change the outcome very much.[42]
Research limitations are due to managerial statistics of public administration being inherently domestic to one country. This is a rather general condition of comparative law. However, the specific instance examined in this essay – decisions by public prosecutors – possibly takes place in all countries. Therefore, it should be possible to replicate the analysis under any polity, democratic or other, and check if the dynamics are the same as in the case presented here.
The specificity of the empirical evidence provided here may induce doubt about the generalizability of the thesis of this article: the vertical partiality of public administration in general and the consequent inequality of the citizens vis-à-vis public administration. Public prosecutors however, are only an example of public managers not making decisions and passing cases forward for other authorities to make a decision. Evidence should be sought in the executive branch as well, where public managers would rather have a judge tell them what to do rather than taking responsibility for positive action. This is more difficult as management control systems and data transparency is far from reality. There lies the power of the evidence provided here that leverages the inherent quality of the judicial as a decision-making evaluation system.
5. Future studies
Future studies should endeavor to discover more about the hypothesis developed in this essay. Future studies should also point out data and examples of non-decisions in the executive branch. For instance, a “crisis of signatures” – i.e. not taking responsibility – was revealed in the Italian executive branch and the need for “commissioners” (in Italian: “commissari”) to get things done for the Recovery and Resilience Plan under the Next Generation EU program in Italy.
More in general on vertical partiality of public administration vis-à-vis the rest of society, one may notice that the extension of public-sector holdings (at market value in Japan, China, and other non-Asian non-advanced economies above 50 percent of total across the globe) shows the propensity of bureaucracies (and polities) to keep control of resources for themselves instead of letting civil society access those resources.[43]
This essay is also part of a wider project examining the implications of theories and findings of the sociology of organizations on the theory and practice of public law. Along these lines future studies look at the underlying social theory hypotheses of public law as guidance for public administration reform.
6. Conclusion
This essay has revealed a neglected dimension of inequality: the “vertical partiality” of public managers and public administration vis-à-vis the citizens and the polity. Members of the public administration pursue ease of management in discharging their tasks thus treating themselves with priority vis-à-vis the citizens and politicians. Such circumstance imposes unnecessary and high costs on the citizens and society. The example provided here shows public prosecutors as public managers move decisions forward and generate congestion in the judicial system. Such congestion impairs the crucial role of that system as a deterrent of crime vis-à-vis society. This essay warns that reform, without change in the micro-incentives of public managers, may fail.
† PhD London Metropolitan University.
[1] For a lexicon of public law and public administration, see generally Paolo D’Anselmi, Max Weber’s Ideal Type As A Behavioral Hypothesis In Public Law: The Lexicon Of Constitutions On Public Administration 2 Italian .J. of Public L. 448–476 (2021).
[2] The notion of vertical partiality is introduced in Paolo D’Anselmi Ideal Types and Behavioural Hypotheses: Public Law, Max Weber and the New Public Administration, 20 (2) Max Weber Studies 168, 181 (2020).
[3] Pietro Curzio, Relazione sull’amministrazione della giustizia nell’anno 2021, Corte Suprema di Cassazione, (Jan. 2022) at 296,
https://www.cortedicassazione.it/cassazione-resources/resources/cms/documents/Cassazione_Relazione_2022.pdf.
[4]5 USCS, Ethics in Government Act of 1978; 5 USCS, Inspector General Act of 1978 (establishing Offices of Inspector General in departments and other bureaus of the federal government with capability to initiate investigations). Also, Inspector General Reform Act of 2008 110 P.L. 409, 122 Stat. 4302.
[5] A.W. Bradley and K.D. Ewing, Constitutional & Administrative Law, 605 (14th ed. 2011) (The United Kingdom Civil Service Code declares that civil servants are expected to carry out their role “with dedication and commitment to the Civil Service and its core values: integrity, honesty, objectivity and impartiality.”).
[6]Art. 97 Costituzione [Cost.] (It.) (“Public offices are organized according to the provisions of law, so as to ensure the efficiency and impartiality of administration.”).
[7] An analogous circumstance is examined in Paolo D’Anselmi, The Privileged Working Conditions of Public Employees Sanctioned by Public Law: Adding One Dimension to Inequality Inequality Inquiry (2020), https://lawandinequality.org/2020/01/21/the-privileged-working-conditions-of-public-employees-sanctioned-by-public-law-adding-one-dimension-to-inequality/.
[8] See generally Paolo D’Anselmi, Can We Afford to Separate Politics from Administration: Designing Powers in the Service of Implementation, 5 Italian L.J. 471 (2019).
[9] William A. Niskanen, Non-Market Decision Making: The Peculiar Economics of Bureaucracy, 58 Am. Econ. Ass’n 293 – 294 (1968) (emphasis added).
[10] M. Friedman, The Methodology of Positive Economics’ in Essays In Positive Economics (1966) at 3–16, 30–43.
[11] Niskasen, supra note 9, at 294.
[12] See generally Oliver E. Williamson The New Institutional Economics: Taking Stock, Looking Ahead, 38 J. Econ. Literature 595 (2000).
[13] Bruce Ackerman, The New Separation of Powers, 113 Harv. L. Rev. 634, 689 (2000) (“Constitutionalists should, therefore, extend their thinking to embrace the distinctive structural problems involved in controlling the fourth branch of government: the bureaucracy. This is perfectly obvious to professors of administrative law, who bitterly resent the dominance of constitutional lawyers in the pecking order of legal academics.”).
[14] Id.
[15] M. Zamboni, The Positioning of the Supreme Courts in Sweden – A Democratic Oddity? 15 European Const. L. Rev. 668-690 (2019).
[16] UNODC, Public Prosecutors as the ‘gate keepers’ of criminal justice, UNODC (2020), https://www.unodc.org/e4j/en/crime-prevention-criminal-justice/module-14/key-issues/2–general-issues–public-prosecutors-as-the-gate-keepers-of-criminal-justice.html.
[17] Office of the United States Attorneys, Steps In The Federal Criminal Procedure, Dept. of J. (Nov. 9, 2022), https://www.justice.gov/usao/justice-101/steps-federal-criminal-process.
[18] European Justice, Defendants (criminal proceedings), European Justice (Aug. 30, 2019),
https://e-justice.europa.eu/169/EN/defendants_criminal_proceedings?GERMANY&action=printMS&member=1.
[19] Id.
[20] Office of the United States Attorneys, supra note 17.
[21] Id.
[22] Gov. UK, Criminal Procedure Rules and Practice Directions 2020, Gov.UK (Apr. 3, 2023),
https://www.gov.uk/guidance/rules-and-practice-directions-2020#criminal-court-procedure.
[23] European Justice, supra note 17.
[24] Id.; Curzio, supra note 3.
[25] Such comparative methodology is borrowed from F. Merloni Corruption and Public Administration: The Italian Case in a Comparative Perspective. Routledge (2019).
[26] Italian Code of Criminal Procedure, Book V, Title IX, Udienza Preliminare, art. 425].
[27] LEGGE 27 settembre 2021, n. 134 art. 1 par. 9 a), m) par 12, d).
[28] See generally, Stephen Holmes and Cass R. Sunstein The Cost of Rights Why Liberty depends on taxes (2000).
[29] European Commission, EU Justice Scoreboard 2021 (2021) n.17 (“In the context of the European Semester, the Council, on the Commission’s proposal, addressed country-specific recommendations relating to their justice system to seven Member States in 2019 (HR, IT, CY, HU, MT, PT and SK) and eight Member States in 2020 (HR, IT, CY, HU, MT, PL, PT and SK). Moreover, the Commission monitors judicial reforms in BG and RO under the Cooperation and Verification Mechanism.”).
[30] In Italian: “Corte Suprema di Cassazione,.”
[31] Curzio, supra note 3, at 56–61, Data were also publicized by the financial daily newspaper Il Sole 24 Ore, 9 February 2022, “Archiviazioni e assoluzioni, troppi processi penali a vuoto” (author’s translation: “Dismissals and acquittals: too many criminal trials end in a void”). Notice the innuendo in the title of the newspaper article: trials ending in acquittal are trials ending “in a void,” implying justice is when a conviction is issued, acquittal is “void” or non justice.
[32] Formally the decision is taken by judges for preliminary proceedings (in Italian acronyms: “GIP” or “GUP”), however such decision is taken on the bases of what public prosecutors ask for. Therefore, for sake of substantiality we propose here this is the public prosecutor’s decision.
[33] If we check the figures, notice that 429,898 and 163,819 add to 593,717, which is close to the 600,000 cases cited in the text. Notice that the 593,717 and the 600,000 are not the very same cases. The rulings in the same year were not the very same cases that were sent to court in that same year. The similar figures however do imply that the system is in a steady state over the years. However, we can consider and evaluate the decisions in one solar year (i.e. a time cross section) if we assume the stock of cases being a homogeneous one. In fact, we do assume the decision-making process is a Markovian process whereby a time cross section observation is equivalent to a time longitudinal observation.
[34] LEGGE 27 settembre 2021, n. 134 art. 1 par. 9 a), m) par 12, d). This law was dubbed as the “Cartabia Reform.” It was put in place by the Draghi Cabinet Minister of Justice Marta Cartabia.
[35] On the other hand, it should be noted that the high rate of acquittals (54.8 percent) shows a relative independence of judges vis-à-vis prosecutors, an element of quality in the social organization of justice.
[36] Curzio, supra note 3, at 296.
[37] P.B.S. Research the System, P.B.S. (2002),https://www.pbs.org/kqed/presumedguilty/3.2.1.html.
[38] D. Clark, Conviction rates for magistrates courts and crown courts in England and Wales from 2nd quarter 2013 to 3rd quarter 2022, Statista(2022), https://www.statista.com/statistics/1100769/conviction–rate-in-england-and-wales/#:~:text=The%20conviction%20rate%20in%20England,the%20third%20quarter%20of%202021.
[39] Destatis, Criminal prosecution by the courts in 2020: convictions by final judgment down 4% Destatis (2021) https://www.destatis.de/EN/Press/2021/12/PE21_592_24311.html;jsessionid=486977FB5BBA99CB0ED511590F09ACC5.live741 (providing data on the conviction rate for criminal prosecutions in Germany in 2020).
[40] Id.; P.B.S., supra note 37; Clark, supra note 38.
[41] Valentina Stella, ‘Pagelle ai magistrati, l’Anm non ci sta: «Mettono troppa ansia…»’ Il Dubbio (Mar. 2, 2022), (translation: Scoreboards for magistrates: the magistrates’ association disagrees: “Scoreboards would make us anxious”’), https://www.ildubbio.news/2022/03/01/pagelle-ai-magistrati-lanm-non-ci-sta-mettono-troppa-ansia/.
[42] LEGGE 27 settembre 2021, n. 134 art. 1 par. 9 a), m) par 12, d).
[43] The Economist, Many countries are seeing a revival of industrial policy, The Economist (Jan. 15,2022) at 4. This Economist special report illustrates that 20 percent of large firms are owned by the state, globally.
