Alternative definition of criminal proceedings: Testing.
Alternative method for defining the criminal proceedings, suspension of the trial with probation, which can be activated at the request of a party since the preliminary investigation phase, leads, where the period established by the Judges ends with a positive outcome, to a sentence of acquittal for extinction of the crime (ex art. 425 cpp and art. 43 co 1 DPR 448 / 88).
The State therefore renounces its punitive claim for the offense, asking the child in exchange not only to keep from committing further crimes, but also the commitment to join a re-socialization and re-education program.
It therefore finds its foundation in Articles 31 and 27 co.3 of the Constitution, which impose to protect and re-educate minors, that is in the Beijing Rules, which in Articles 11 and 19 encourage the application of this institution (cd. probation)
Institute of dual legal nature: substantial nature, as a cause of extinction of the crime, procedural nature, as a way of suspending the proceedings (< >), originates from the Anglo-Saxon probation.
Its first application dates back to the nineteenth century when in Boston, Mr. John Augustus (a shoemaker profession) offered to pay a bail for an alcoholic subject convinced that he could intervene on his recovery.
The subject, at the instance of the Judge, was actually released, and a cent was sentenced to the symbolic penalty.
Several experiments followed.
Thus a new pronation system was created which was characterized not only by the suspension of the sentence pronouncing a prison sentence, but by the imposition of rules of conduct (the non-compliance of which de facto generated the revocation of the suspension and a sentence) .
The subject was entrusted to a person who actually assumed the task of controlling it and guiding it along the path of recovery.
La probation so structured it was then officially established for the only defendants of age in the united states in the 1954.
The institute had the clear intention of avoiding the imprisonment of subjects who became perpetrators of minor crimes and not inherent to excessive social disvalue.
La probation I therefore find application also in Europe, albeit with some differences.
For example, the Franco-Belgian version provided for a suspension of the sentence, therefore in an executive phase, not of the proceedings, for the accused who requested it.
A subsequent measure aimed at avoiding imprisonment of the subject.
Inevitably both versions were valid: just think that both still exist within our judicial system (see the art. 656 cpp on the suspension of the execution of the sentence).
The institute of the mass is introduced by the Legislator with the DPR 448 / 1988 (penal code on the juvenile rite) to the limbs. 28-29
Primary objectives: the exit of the minor from the penal circuit in the shortest possible time, the timeliness of the intervention given the characteristics of the interlocutor (subject in full formation), diversetion, or the analysis of the minor's personality and personalized interventions on the characteristics of the offender, and obviously the recovery of the same.
The fact is that the entire text of the law focused attention on the subject in order to offer, from the State, the best support for a prompt resocialization of the same.
The same program "Trattamentale" to which the minor will be subjected, is elaborated by a team of social assistants (ministerial and territorial) and discussed in the contradictory of the parties.
This project must not only take into account the propensities, characteristics and attitudes of the subject, but also the family environment and the native territory of the same.
The spirit of re-socialization also requires that the same be carried out near the place of birth of the same, providing for the removal and / or possible placement in the community, even outside the region, only in extreme cases.
Once the period of test the minor must be ready to return to his everyday life, with a wealth of experience and skills, necessary to not commit crime.
On a procedural level, this ratio implies the absence of preclusions, both subjective and therefore inherent in the minor's personality, and objective about the type of crime ascribed, as well as procedures, the same powerful being requested by the minor at any stage of the trial.
The Constitutional Court, with sentence n.125) 1995, also declared art. 28 co 4 in the part in which it prohibited the suspension of the trial in cases in which the accused had already made a request for a shortened or immediate procedure.
The Court affirmed "the Legislator has not conditioned the provision de quo to the provision of the consent from the part of the mountain, leaving to the Judge the decision about the opportunity to suspend the trial".
Following this fundamental sentence, the accused can be admitted to the trial, even after having requested the application of one of the two awards, or at the end of the latter.
The possibility of requesting the institute being challenged for the first time was discussed in the matter.
Pursuant to the provisions of art. 28 DPR 448 / 88 would seem impossible to move this request ex novo to the appeal, since the Court could intervene on the point only in the exercise of the control of the first instance decision, provided that it was included among the grounds for appeal.
The request may also come from the suspect, we are therefore in the phase of preliminary investigations, on request of a party, first examined by the public prosecutor and then by the competent judge.
It is therefore necessary that the main actor of the putting to the test, or the boy, adheres to the project and declares his will, assuming all the responsibilities connected to the commitment.
The question as to whether or not the offender confesses about the crime was also discussed.
It is common practice for Juvenile Courts to accept requests pursuant to art. 28, only following a full and complete confession on the matter (the confession also precludes, in case of negative outcome of the trial and resumption of the process, an acquittal definition, still possible).
Naturally it is unthinkable that a subject who makes a request for a test is completely foreign and therefore conceivable that fumus delicti committed there.
The fact is that in situations borderline, where there is no full responsibility (let us think of the subject who intervenes in a fight and to put down the subjects involved and unintentionally causes minor injuries, perhaps following a shove) where there is a liability, but certainly weakened with respect to the accusation formulated, one ends up not granting such a benefit without prior confession and admission of guilt.
All this not only undermines the child's right to defense, but in fact diminishes the educational intent underlying the institution: the minor will not accept to assume his responsibilities because he is aware of the negative value of his actions, but only in a totally instrumental way for access the ritual and escape as quickly and painlessly from the criminal trial)
The Court of Cassation itself, in clarifying the numerous doubts concerning interpretation, clarified with extreme precision that a confession by the minor is not necessary, but only that the same has undertaken a process of repentance (critical revision of his action) .
If, therefore, all the conditions exist, the Judge shall order the suspension of the trial by an order that is adequate for the duration of the crime.
In the motivation of the suspension provision the prognostic judgment is of fundamental importance.
The Court of Cassation in fact states "This judgment can only be taken from the type of crime committed, from the methods of implementation, from criminal grounds, from the personality of the child, in the sense that the crime does not constitute a choice of life, but the deviant conduct is the manifestation of a temporary discomfort of the adolescent, who has an aptitude to demonstrate his ability to engage positively in a life project "
The suspension may not in any case exceed three years (maximum term in the case of crimes for which a life sentence is envisaged or imprisonment not exceeding the maximum of 12 years).
With the same order, the Judge entrusts the child to social servants by designating a non-toged as part of the college for supervision.
From this moment it is up to the services to monitor the progress of the trial and to inform the court of any variation of the same.
The Court, in various judgments, was keen to emphasize that within the project reparative activities must be envisaged with regard to the victim, even of moral content only.
This orientation responds to the need to practice the penal mediation provided for by the EEC Directive of 15 September 1999.
In case of doubts about the boy's hold, any failure of the same is the power of the Service to request the establishment of a verification hearing.
In the event of any transgressions of the program, or of the commission of another negligent crime, of a crime of the same nature, the judge revokes the order and proceeds to the judgment.
In the event that, instead, the program at its conclusion has been respected, the Judge after hearing the parties declares the offense extinct due to the positive outcome of the same.
In particular cases, a screening of the family environment, the personality of the child or the environment of origin of the same, the probation can be carried out in community facilities.
Naturally the subject admitted to the benefit remains de facto free (not as a precautionary measure) even if placed in the community and it will be required to respect the community rules.
According to a restrictive interpretation it was excluded the possibility of subjecting the subject who had come of age to the test, but minor to the completion of the crime.
At the request of the PM of the Court of Cagliari, the Supreme Court with the fundamental sentence n.1405 / 1992 clarified: “The jurisdiction of the Juvenile Court is exclusive and general for all minors, at the time of the crime, so the subsequent age of majority is not relevant. All the provisions of the DPR 448 / 88 always qualify the accused as a minor on the assumption that, even when the accused is an adult, the only relevant moment for attributing jurisdiction to the Juvenile Court is the age of the subject at the time of the committed crime ".
Particularly interesting is also the case in which the minor has committed other crimes, prior to the one (s) for which, pursuant to art. 28 is in trial, and are the latter linked by the constraint of continuation. In this case it will be possible to extend the trial period, during a trial, without the need to have a new and distinct proof.
The 67 / 2014 law, with the art. 3 introduced the arts 168 bis and 168 into the penal code, coining the institute pursuant to art. 28 of the juvenile rite also for the defendants of age.
The fact is that although the purpose is similar from a procedural point of view: suspension of the process (also here the subject is subjected to a treatment program elaborated by the External Criminal Execution Office (so-called UEPE) and approved by the judge) and extinction of the crime in the event of a positive outcome of the test, there are differences between the two institutions.
The probation, in the ordinary rite, can be granted only once to color that have not been declared delinquents professors, habitual I by tendency and we have not committed serious crimes foreseen by the art. 550 co 2 cpp, ie those with a penalty of more than 4 years (without taking into consideration the mitigating circumstances of the crime).
However, recidivism is not considered a textual subjective limit to the institution's operations.
A purpose of social recovery of the trial could, for example, even orientate towards a privileged application for the repeat offender, which certainly shows greater need for "alternative" and differentiated treatment.
The EPEE, after the socio-family investigation, draws up the project, acquiring the consent of the accused and the adhesion of the institution or the subject at which the defendant will be called to carry out the treatment program.
The program, whose duration is fixed by the judge within the maximum limit established by law, may involve the performance of conduct aimed at eliminating the harmful or dangerous consequences deriving from the crime, as well as, where possible, compensation for the damage caused by the same, voluntary activity of social relevance and compliance with behavioral requirements. The probation is always subordinated to the performance of public utility works (Article 168 bis of the Criminal Code)
In case of rejection by the judge on the request for trial, it cannot, contrary to what happens in the juvenile rite, be appealed by cassation.
The only exception is the case in which, during the investigation, with the opposition to the penal decree of conviction, the trial was requested and this is rejected: in this case it can be challenged before the Ermellini, being expressly provided for by the art. 464 bis co 2 cpp
With regards to the juvenile rite n order to subjective legitimacy, the co 3 of art. 28 DPR 448 / 88 limits itself to providing that the prosecutor, the accused and his lawyer can appeal against the order “the judgment of the Cassation on the suspension order pursuant to art. First of all, 28 has as its object the procedural defects of the assumptions, among which we can mention: the missing audition of the parties, the violation of the contradictory, the omission of the intervention project, the non-adhesion of the minor to the aforementioned project, the non-compliance of the test project to the content of the order that disposes it, the defects concerning the motivation of the provision and, in particular, the adequacy and completeness of the same, also in order on the possible omission of the investigation on the minor's personality, pursuant to art. 9 DPR 448 / 88, for the purpose of applying the measurement "
The process remains suspended pursuant to Articles 588 cp until the decision of the Court of Cassation.
The Cecatiello Law Firm advises its clients for the best management of juvenile criminal proceedings.
Cecatiello Law Firm, Milan. Marriage lawyer, divorce lawyer, specialized in family law, child rights, juvenile criminal. Contact us.