The renunciation of the punitive claim of the State against the minor: criminal irrelevance and judicial pardon.
Criminal irrelevance of the fact:
On the strength of the Beijing Rules of the 1985, which in art.11 pushed for the use of systems of diversion, or an early termination of the process, in order to favor a rapid exit of the child from the criminal circuit, thus avoiding, for the same harmful effects deriving from a possible sentence, the Italian Legislator with the art. 27 of the DPR 448 / 88 introduces a norm with a fundamental practical significance into our legal system.
Against the accused minor and in particular conditions such as:
- the tenuousness of the crime
- the occasional nature of the conduct
- analysis of the prejudice that would derive to the educational needs of the child in the event that it is decided to continue the process
The judge, after hearing the parties, can declare the no place to proceed.
Premise: in the Italian legal system the concept of crime is based on the cardinal principle of "Nothing full sine law" or the fact / crime materializes when human behavior integrates the case typified by the standard.
Those of ascertaining the liability of the agent are associated with this principle (nulla poena sine culpa) and the need for a trial to ascertain the crime (nulla poena sine iudicio).
The material conception of the crime requires that the existence of the first two principles be added one quid pluris constituted by the social dangerousness of the fact, the extent of which will be ascertained on a case-by-case basis, according to these objective criteria (importance of the injured interest, the manner in which the offense was committed, its consequences, the circumstances in which the crime was committed) and subjective (personality of the perpetrator, intensity of guilt, reasons underlying the decision of the subject to commit the crime - nothing poena his social class).
It should be pointed out that the principle of offensiveness, that is the mere adherence of the fact to the criminal case envisaged by the law, does not itself integrate the offense, as the disobedience to the law should not be punished, but the conduct actually held by the agent if actually damaging of the protected good.
This principle finds its foundation in the art. 13 of the Constitution, which allows to sacrifice the freedom of the individual, only in the presence of the need to protect a concert of interest.
The institution of irrelevance of the fact has found such a positive experience in the juvenile criminal trial to push the legislator to apply it also in the proceedings before the Justice of the Peace (art.34 Legislative Decree 274 / 2000)
In fact, the institute has a strong deflationary value: while on the one hand the negative value of the behavior held by the subject is highlighted and makes it possible to challenge them, on the other hand it does not stigmatize them, allowing the child a speedy exit from the criminal trial (event definitely traumatizing and harmful).
The same Constitutional Court in the 88 / 1991 ruling emphasized that the mandatory prosecution does not mean necessary exercise of the same, but that there is adequate control over the PM's activity to avoid arbitrary choices.
The implicit limit to the mandatory nature of criminal prosecution is that the process should not be instituted when it is patently superfluous.
The solution can be found in the choice of procedure to envisage the filing of the same, which if on the one hand allows, as we have said, a resolution of the dispute that is certainly swift, on the other hand offers the investigating body the analysis of the matter.
An articulated hierarchical control system is also in place (both internal to the office of proxy and external, given the possibility of the GIP to request the completion of further investigations or to return the documents to the public prosecutor for the formulation of the charge).
Indeed, when the PM requests a sentence from the GIP no place to proceed due to irrelevance of the fact, the latter sets a chamber hearing with the obligatory presence of the minor, the exhibitors, the defender, the injured party and the Social Service.
The request made by the Public Prosecutor's Office is then analyzed by all the parties involved:
- of the Judge who can, instead of accepting it, order the PM new investigations or order that an indictment be made against the suspect.
- Of the subject, the exhibitors and the defender who can refuse such blessing, if they consider the existence of another procedural resolution: acquittal with a broad formula
- Of the injured party, who intervenes at the hearing, will be able to provide elements that in fact conflict with the irrelevant sentence
It therefore appears clear that we are in the presence of facts that actually have one minimal social offensiveness.
If the latter did not exist, the note would be completely lacking crimins
Mind you: the tenuousness of the fact under consideration must be assessed not in the abstract, or in relation to the title of crime, but in concrete terms, referring therefore to the nature of the fact itself, to its effects, to the context in which it is carried out and to the modalities that they have characterized its action.
It actually involves a judgment of exclusion of liability, even in the presence of an ontologically existing type of crime and the subjective attribution of the conduct to the subject.
This judgment must in fact, however, be based on the objective criteria dictated by the 133 cp and entrusted to the evaluation of the Judges on the merits.
Stroke oculi said tenuity can be held if the fact is objectively of modest entity and is known to exist with methods attributable to the natural lightness of young people, who, feeling impulses, often do not adequately reflect on the consequences of their behavior.
One thing should not be underestimated: The judgment of irrelevance of the fact therefore contains an ontologically positive assessment of the culpability and imputability of the suspect.
In what procedural phase can a sentence of non-place to proceed be pronounced?
Several hypotheses remain:
- In the first the procedure for irrelevance starts with the impulse of the PM
The latter in the course of preliminary investigations, if he considers that the conditions pursuant to art. 27, exercises the penal action asking the GIP at the Juvenile Court the definition of the procedure directly with a sentence of no place to proceed for irrelevance of the fact.
The GIP proceeds in the council chamber, from notice to penalty of nullity to the minor, to the liability operator, to the defender, to the injured person and to the Services and may:
A) if he considers, in the light of a different interpretation of the evidentiary material, that the fact does not exist, that the accused did not commit it, that the fact does not constitute a crime, or that it is not required by law as a crime pronounce sentence ex art.129 cp with the most favorable prescribed formula.
B) If, on the other hand, the investigating magistrate decides not to accept the request formulated by the PM, because he does not agree with the request of the requesting office, he will have to return the documents to the prosecuting PM, inviting him to formulate the charge within ten days.
C) The GIP can also return the documents to the Public Prosecutor if he considers new investigations necessary
The judgment not to proceed by irrelevance must contain all the requisites envisaged by art. 426 cpp including the statement of the fact.
D) from the GUP at the end of the preliminary hearing (only with the consent of the minor)
E) the outcome of the abbreviated trial
F) on appeal (only if requested on grounds of appeal)
G) of the trial judge
Article. 27 DPR: 448 / 88 also states that against the ruling no place to proceed pronounced by the GIP during the preliminary investigations, being a chamber procedure, it is possible by the minor, the operators and the defender, to appeal within 15 day from pronounces.
If you are in the preliminary hearing phase, the operator, the minor and the attorney with a power of attorney can file an opposition within five days (pursuant to art. 32 DPR 448 / 88)
Only the appeal for cassation against the sentences of irrelevance pronounced following a shortened procedure is allowed.
In conclusion, for the court sentences, the general rules prepared by the code are followed, so that in this case the art. 593 cpp as modified by L.46 / 2006.
Cause of extinction of the criminal proceedings provided for in art. 169 cp (together with the amnesty, the death of the offender before the conviction, the defect or the remission of the lawsuit, the prescription) and the RDL 1404 / 1934 in the art. 19 for the only defendants minors involves an exception to the principle of the inalienability of the penalty.
It can certainly be said that the function of this institution is social preventive: the aim pursued is therefore to favor the re-socialization of the subject by avoiding the stigmatizing effects arising from contact with the prison reality.
According to Manzini: << the minor will be incited to repentance by the certainty that, maintaining his legal status of uncensoredness, no one will be able to blame him for the first past, often due, and especially in relation to certain crimes, more to ethical immaturity than to perverse nature >>
What are the conditions for granting forgiveness?
- the criminal liability of the minor must be ascertained
- The subject must have (at the time of the facts) an age between fourteen and eighteen
- The minor must possess the capacity to understand and to want (in the absence of which it is necessary to pronounce the acquittal for immaturity)
Are there limits to its granting?
- to the custodial sentence to be applied which in concert must not exceed two years, or the pecuniary penalty, alone or jointly with the custodial one, must not exceed 1549,37 euros.
It should be noted that in order to determine the specific penalty to be applied, the Judge is also required to take into consideration the extenuating circumstances, for example the mandatory decrease for age)
- the minor must not have been previously convicted of a prison sentence.
- The child must not have been declared a habitual or professional offender
- He must never have benefited from the institute de quo.
On this last point, given the jurisprudential debate, the Constitutional Court intervened with two sentences
In the first, the sentence 154 / 1976, the Court declared the illegitimacy of article 169 cp in the part in which it excluded that it could grant itself a new pardon in the case of sentence for crime committed before the first sentence of pardon to penalty that, commuted with the previous one does not exceed the limits for the applicability of the benefit.
With the sentence 108 / 1973 also declared the illegitimacy of the aforementioned provision in the part in which it does not allow the court pardon to be extended to others crimes captured by the constraint of continuation to those for which it was granted.
The internal limit to the granting of forgiveness, however, goes back to the favorable prognosis, carried out by the Judge, on future behavior held by the same, which therefore leads us to believe that the minor will abstain from the possible commission of crimes.
It must be accomplished by setting the criteria laid down in art. 133 cp which attribute to the Judge a "Non-free discretion, but bound to the rules established by the norm itself".
Judicial forgiveness does not arise in contrast with the principle of mandatory prosecution, which can also be deduced from the fact that it can be ordered only after the indictment.
It can therefore be granted:
- at the preliminary hearing
- Following an abbreviated judgment
- At the end of the debate
- On appeal, if the non-concession was subject to appeal
- It is not conceivable in the judgment of the Cassation (being the subject of a merit assessment)
Only the remedy of the opposition is against the sentence that applies the judicial pardon to the preliminary hearing.
If, instead, it has been pronounced following an abbreviated procedure or trial, the possible appeal is exclusively the appeal to the Cassation.
Against those rendered in trial it is possible to appeal pursuant to art. 593 cpp as modified by L.46 / 2006
It should be noted that the card relating to the pardon, drawn up for the record, is destroyed at the age of twenty-one without leaving any trace.
Mind you: forgiveness is certainly less favorable than irrelevance, which can also be granted in the course of preliminary investigations and for which no card is drawn up for the judicial record.
The fact is that both institutions have the unquestionable merit of allowing the child, subject in fieri, endowed with a personality not yet completely defined and therefore worthy of greater protection, to get out of the mesh of justice, avoiding the stigmatization that would derive from a possible condemnation.
The Cecatiello Law Firm advises its clients for the best management of juvenile criminal proceedings.
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