The declaration of non-imputability of the minor of 14 years.
The declaration of non-imputability of the fourteen year old: what happens if a minor of fourteen is accused of having committed a crime?
“In every state and degree of the procedure the judge, when he ascertains that the accused is less than fourteen, pronunciation, even ex officio, ruling not to proceed since it is a person not attributable"
Since its establishment, art. 26 of Presidential Decree 448/88 has raised conflicting opinions both in doctrine and in jurisprudence.
If on the one hand, in fact, it was often interpreted as a rule in favor of the minor, as it tends to resolve the process in advance by allowing the immediate exit from the criminal circuit of the subject, in its practical application, this institution, reveals all its limits and its contradictions.
In fact, when the PM receives a crime report committed by an infra-fourteen-year-old, the requesting body, without giving formal notice to the operators of parental responsibility, without questioning the infra-fourteen-year-old on the fact, without carrying out any kind of investigation, without acquiring a report from the Service Social, requires the judge for preliminary investigations to issue a judgment not to proceed pursuant to art. 26 of Presidential Decree 448/88, because the perpetrator is under 14 years of age.
What is even more serious is that this sentence is entered in the subject's criminal record, with an indication of the crime committed, and the relative registration is eliminated only when the eighteenth year of age is completed (Article 4 of Presidential Decree 313/2002, first art. 15 DPR 448/88).
In the case of an extremely serious crime (think of the murder or sexual violence), the PM can however ask the investigating judge together with the declaration of no place to proceed with the provisional application of a security measure (art.37 co 1 DPR 448/88).
The minor therefore becomes aware of the fact only because he is affected by this provision.
According to the prevailing orientation, therefore, the normal procedural activity cannot be performed, given the non-imputability of the offender, original and not in need of any verification, and since it is only possible, at the state of the documents, to pronounce a judgment not to take place proceed for minor.
The writer is well aware of the immediacy with which the competent authorities can carry out the necessary investigations regarding the age of the suspect, but cannot understand how in a guarantee system such as ours, this accuracy is not transferred to the fact, whether or not it was committed by the subject.
Where the minor is actually the perpetrator of the crime, nothing on favor of the rule, which thus allows an immediate exit of the child from the process, but problems, of not insignificant importance, arise in the infrequent case that the minor under the age of XNUMX has not committed the fact and is found, without even receiving the dispute and without being able to carry out any defensive activity, the recipient of a sentence; sentence, we clarify once again that he declares him responsible anyway and that he remains registered in the filing cabinet until he reaches the age of majority.
This solution is not rightly unanimously shared in both doctrine and jurisprudence.
For example, the Public Prosecutor's Office at the Juvenile Court of L'Aquila in 1993 said: "If during the preliminary investigations it appears that the suspect is less than fourteen years old and therefore not attributable pursuant to art. 97 of the Italian Criminal Code, the investigating judge must pronounce the filing of the documents due to the impossibility of valid constitution of the procedural relationship and no ruling not to proceed, given the inapplicability in this case of art. 26 of the provisions on the juvenile trial, since the XNUMX-year-old cannot take on the role of defendant ”.
According to Manera, then, the under XNUMX year old can never assume the status of defendant, since no blame can be formulated against him, as he bears a physiological imputability, that is known from the beginning, that is his age, and therefore not pathological and consequently to be ascertained during the procedure as in the case of an adult.
The PM should, Manera continues, pursuant to art. 50 of the Code of Criminal Procedure request the filing, since criminal proceedings can never be exercised.
Filing could be requested on the basis of art. 408 cpp, due to the groundlessness of the notitia criminis, given the impossibility of supporting the accusation or pursuant to art. 411 cpp for reasons of inadmissibility.
For Manera, the definition pursuant to art. 26 of Presidential Decree 448/88 is applicable only in cases where there has been an indictment for error regarding the age of the suspect, due to the principle of the non-retroactivity of the criminal action.
Marcone also comes to the same considerations, stating that even if the PM made an error requested pursuant to art. 26 it is up to the Judge for the Preliminary Investigations to redevelop the request, in a more suitable and protective legal qualification, by issuing a decree of filing.
However, these theses meet an insurmountable limit in the rulings of the Court of Cassation which considered, in fact, that the fault of imputability of the minor of 14 years does not fall within the cases of inadmissibility, but in the provisions of art. 425 cpp also for the systematic link between this provision and art. 26 Presidential Decree 448/88 (Cass. Judgment 1272 of March 1994, orientation confirmed with sentence no. 469 of 14 January 2005)
According to the clear provisions of art. 26, therefore, in each state and degree of the proceeding, the Judge will not be able to do anything other than issue a sentence (not therefore a decree of filing).
This orientation, as just stated, although it has been repeatedly stressed by the Supreme Court does not leave the technicians of the law, however, satisfied, leaving serious doubts of constitutionality, given that the subject remains the recipient of a sentence without even receiving the dispute of the crime and without having any possibility to exercise his right of defense.
The doubt is also reinforced by art. 22 of Law 1 of 2001 March 63 containing provisions for the implementation of the fair trial, which modified the co 1 of art. 32 of Presidential Decree 448/88 eliminating the possibility of the Judge for the preliminary hearing to define the process at an official stage and requesting the consent of the minor for the definition.
Therefore, if the consent of the minor is necessary at this stage, as may not have to be requested in the ruling pursuant to art. 26?
In fact, the principle of due process constitutionally established by art. 111 cost. expressly prohibits the judge for preliminary investigations, even in the ordinary rite, to pronounce the acquittal sentence pursuant to art. 129 of the Code of Criminal Procedure without first establishing a contradictory relationship between the parties.
However, the Court of Cassation considered that the accusatory principle with which the current process conforms indicates a position equal between the peers with respect to the Judge and the impossibility of the latter to adopt a decision, of a decisional nature, in the absence of a contradictory one.
It is, in fact, the writer's notice that the Judge should, in analogy to what is provided by the following art. 27, issue sentence pursuant to art. 26 of Presidential Decree 448/88 only following a chamber hearing in the presence of all the parties.
There is no doubt, therefore, that there is an interest in the under XNUMX year old in obtaining another type of acquittal.
The declaration of no place to proceed due to lack of age presupposes that the crime exists and that it was committed by the subject.
The possibility of contesting the fact and hearing the infra fourteen year old finds comfort in the best doctrine.
We quote a passage taken from Leo's Criminal Procedure Law Treaty “the ability to be imputed in the criminal trial, excluding the cases indicated above, exists in all people. It should be clarified that imputability, an exquisitely substantial institution, is not at all identified with the ability to be a party, an exquisitely procedural institution. In this line of separation between the two situations it does not seem that we should go all the way, without considering the inability to be part of the minor of the fourteen years, towards whom the procedural relationship can be established, even for the sole purpose of ascertaining the commission of a material fact from which the application of security measures may derive.
Against the acquittal sentence pursuant to art. 26 issued by the GIP following the entry into force of Law 46/2006, which amended art. 428 of the Italian Criminal Code, an appeal to the Court of Cassation is allowed within 15 days, as it concerns chamber judgments.
Even this change can only turn up the nose and reaffirm the unconstitutionality of this rite: in the previous discipline against the sentences pronounced Of plano ex art. 26 it was possible to restore the contradictory also on the merits before the Court of Appeal.
At present, even following the occurrence or discovery of new evidence, it would not be possible to appeal, as art. 593 cpp but art. 428 of the Italian Criminal Code which, against the acquittal sentences pronounced in the preliminary investigation phase, allows only the appeal by cassation, with an undoubted decrease in the right of defense.
As we have already highlighted above, a solution could be the applicability, by analogy, of the discipline established by art. 27 for the appeal against the judgment not to proceed for irrelevance of the fact.
This thesis would be based both on the principle of favor rei in that favor contestationis allowing the appearance of the subject, and therefore an effective exercise of the right of defense and, in the case, a judgment of appeal, in the Appeal, where it is possible to contest and highlight concrete evidence and not only legal defects.
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