The first time an individual is summoned to appear, either at the Public Prosecutor's Office or at a Criminal Police Body (O.P.C.) with delegated competence to carry out diligence at the investigation stage (e.g. P.S.P., G.N.R., P.J., etc.), is extremely important in determining subsequent developments, as well as the outcome of the investigation (with subsequent prosecution or filing of charges, and underlying intricacies).
An individual can be summoned to give evidence in various capacities, including witness (inc. div. nomenclatures v.g. offended, complainant, victim, etc.) and defendant.
However, there is no guarantee that the quality attributed and included in the notification corresponds to the quality with which the interview will end.
From the outset, the person notified does not know, in principle, the subject matter of their questioning. In fact, sometimes they don't even know the facts underlying the proceedings in which they are being questioned.
What he does know (and this is usually expressly and unequivocally stated in the notices) is that if he fails to appear and does not justify his failure to appear (or if it is not considered justified), a fine may be imposed and/or detention may be ordered for this purpose (see art. 116(2) of the Code of Criminal Procedure).
Now,
In order to understand the real importance of being accompanied from the first interrogation, it is necessary ab initio to understand two situations in which you may be notified to do so: Firstly, as a witness latu sensu and secondly, as a “defendant”.
In common with both situations, the individual may be accompanied by a lawyer (see Article 132(4) and Article 61(1)(e), both of the Criminal Procedure Code).
However, unlike the defendant, who enjoys the right not to answer questions put to him by anyone about the facts he is accused of and the content of the statements he makes about them (cf. d) of no. 1 of art. 61 of the C.P.P.), while the individual being questioned as a witness takes an oath and is obliged to answer questions put to him truthfully (cfr. b) and d) of no. 1 of art. 132 of the C.P.P.).
Underlying these obligations is the definition of the crime of “False testimony, expertise, interpretation or translation” in art. 360 of the C.P.P., which states that “Whoever, as a witness (...) before a court or official competent to receive as evidence, testimony, report, information or translation, gives false testimony, presents a report, gives information or makes translations, shall be punished with imprisonment from 6 months to 3 years or with a fine of not less than 60 days” and that “If the fact referred to in paragraph 1 is committed after the witness has given evidence, he shall be punished with imprisonment from 6 months to 3 years or with a fine of not less than 60 days”. 1 is committed after the perpetrator has taken an oath and has been warned of the criminal consequences to which he is exposed, the penalty shall be imprisonment for a term of up to 5 years or a fine of up to 600 days.” (see paragraphs 1 and 3).
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The importance of the individual being accompanied by a lawyer is made essential by the fact that Article 132(2) of the Criminal Procedure Code states that “The witness is not obliged to answer questions when he claims that the answers will result in his criminal liability”. states that “Witnesses are not obliged to answer questions when they claim that their answers will result in them being held criminally responsible”, for which the respondent should be immediately warned, and because witnesses have the right to be constituted as defendants at their request, whenever steps are being taken to prove an imputation that affects him personally, and there are suspicions that he is involved (see, by way of example only, that the penalty set for the perpetrator of the crime applies, especially attenuated, to an accomplice who, intentionally and in any way, provides material or moral assistance to the commission by another person of an intentional act. (Cfr. paragraphs 1 and 2 of art. 27 of the Penal Code)).
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In fact, it is not uncommon for this constitution to be delayed over time, as an investigative strategy and in order to “pressure” the respondent to tell the truth under penalty of committing a crime, placing them (or giving them the feeling of being placed) “between a rock and a hard place”.
What people don't know is that, in this case, they will have to “change” their status by requesting to be made a defendant, and they should understand that being a defendant is not exactly a bad thing. Sometimes, and for various reasons that this space does not need to go into, they are advised and recommended to request to be made a defendant.
The social connotation inherent in this procedural position is not ignored. However, between “acquitted defendant” and “witness who was convicted”, in the end the result will determine which social reputation will last longer.
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What's more, it's extremely important to read the content of the statements before signing them, because language is tricky and ambiguity can benefit as much as it can harm.
In fact, one of the exceptions to the prohibition on reading such records during a trial hearing is the need to jog the memory of those who declare during the hearing that they no longer remember certain facts (and who often resort to “if I said it, it's because it's true” and “I reiterate what I said”), as well as the existence of contradictions or discrepancies between the statements made during the investigation and the hearing.
And, as a result, the statements made initially could be relevant to the possibility of being charged with the aforementioned crime of false testimony - it should be noted that it will not matter which version is true, since two antagonistic and contrary factual realities cannot coexist in the same space-time fragment.
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On the other hand, the extent of the seriousness of the facts communicated and on which the questioning will fall, as well as the sustainability of the facts through the existing evidence (or whose existence is foreseeable and will be obtained) will not be perceptible in the same way to an individual directly linked to the facts, partial, or without the essential technical knowledge, as it will be for the Lawyer as a professional qualified and prepared for this, with the necessary experience.
What's more, the very need or desirability of gathering evidence or requesting it from the relevant authorities will be something for which the lawyer's own imagination and competence will, as a rule, be better prepared.
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Therefore, in view of the above, we conclude that, while the presence of a lawyer at the inquest is a reassuring factor for all those involved, it is also important to, among other things,
a) Knowing what (and how) to say;
d) Knowing what (and how) to request;
c) Knowing the extent of the facts and consequences involved;
d) Know what (and how) to request;
e) Know what to sign.
It should also be noted that
I) A good defense (and a good “(counter-)attack”) is one that is prepared from the start; and that
II) Being accompanied by a lawyer, especially if you are not a defendant, is not a sign of being guilty or having something to hide, it is a sign of intelligence and caution, because there have always been and always will be innocent people convicted and guilty people acquitted, and the final result is what will be remembered (and eventually recorded on the criminal record certificate).
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