Private violence - Art. 610 penal code.
Pursuant to art. 610 of the Italian Criminal Code, the crime of private violence occurs when “Anyone who violently (1) or threatens (2), forces others to do, tolerate or omit anything is punished with imprisonment of up to four years. The penalty is increased if the conditions set out in art. 339 (3) "
(1) The concept of violence referred to here is broad, in fact including both direct violence to things "physical energy exerted on a thing" (Cass.n. 21559/2010), and to subjects other than the victim.
(2) Similarly, the threat, the design of a future evil, also acquires a very wide range of applications, regardless of the type of means used or the degree of the threat itself.
It should therefore be understood as a threat to any behavior or attitude, even if not explicit, that is likely to inspire fear and to provoke the concern of unjust damage to the aim of obtaining that, through said intimidation, the taxable person is induced to do, tolerate or omit something "(Cass. N. 3609/2011).
The agent can use, alternatively or jointly, pursuant to art. 610 of the Italian Criminal Code, the material elements of violence and threat to achieve its aim of coercing the victim.
(3) "The penalties established [...] are increased if the violence or the threat is committed in the course of demonstrations in a public place or open to the public or with weapons, by a misrepresented person, or by several persons gathered together or with anonymous writing, or in a symbolic way or making use of the intimidating force deriving from secret associations, existing or supposed.
If the violence or the threat is committed by more than five people gathered, through the use of weapons, the penalty is, in the cases provided for by the first part of art. 336 and art. 337 and 338, of imprisonment from three to fifteen, and, in the case provided for by the paragraph of article 336, of imprisonment from two to eight years. The provisions referred to in the second paragraph also apply, unless the fact constitutes a more serious offense, in the event that the violation or threat is committed through the launch or use of blunt instruments or other objects capable of offending, including pyrotechnic devices, in order to create danger to people "
This type of crime undoubtedly aims to protect the interest of the State in general, to guarantee to each individual moral freedom, that is, the faculty recognized and constitutionally guaranteed to each subject to self-determine (Messina - Spinnato).
The objective element of the crime of private violence is constituted by a violence or a threat that have the effect of forcing someone to do, tolerate or omit a certain thing. Violent conduct must therefore behave in the same way as a means intended to carry out a further event, therefore something different from the fact in which violence is expressed.
In other words, the case in point tends to protect the victim from any possible attack on his psychic freedom or self-determination.
It is therefore necessary, for the purposes of configuring the crime, that the violence or the threat put in place by the agent, are such as to result in the loss or, in any case, a significant reduction of the taxable person's freedom of movement or self-determination . (Court of Cassation Section V Criminal, sentence 4 February 2019 no. 10360)
By contrast, by virtue of the principle of offensiveness, behaviors that, although appearing in evident violation of ethical, ethical or social rules, prove unsuitable to limit freedom of movement, or to significantly influence the formation process of the will. (Cass. Pen. Section V of 20.09.2016)
The criminal offense de qua does not therefore require, for the purposes of its configurability, that the agent holds a particular office or. qualification.
Moreover, the illegal conduct can be directed, according to the jurisprudence, not only towards a known or well-determined person, but also towards unknown persons (or a plurality), against whom the action is directly and indiscriminately placed violent or threatening (e.g. in the case of throwing stones from an overpass on the highway below).
Private violence is peacefully considered a crime subsidiaryin the sense that "It is recognizable whenever a different legal qualification is not configured for that specific event" (Cass. No. 4996/1998), a crime complex, that is to say that its constituent element must be "A conduct that in isolation would be the material element of another crime" (Cass. N. 43219/2008), as well as instant and "It is consumed when the will of others is forced to do or tolerate something, without the need for action to have a continuous effect" (Cass. N. 4996/1988).
Particularly interesting when you come across such conduct regarding family law and minors for this offense, the competition as crime of mistreatment, pursuant to art. 572, when the repeated violence or threat is aimed at a purpose other than that of harassment, while there is only private violence where the habituality of harassment is lacking.
Continuing in the analysis of the incriminating rule, the subjective element of the crime is the generic fraud, that is, the conscience and the will to force someone through violence or threat to do, tolerate or omit something.
Finally, pay attention to the procedural aspects, the crime of private violence can be prosecuted ex officio and jurisdiction lies with the court in monochrome composition. The arrest is not allowed while the arrest in the act is optional. Personal precautionary measures are applicable.
At the end of the work, some interesting considerations about the configurability of this crime:
For example, it integrates the crime of private violence to prevent the exercise of the right of others to access a room or a home by locking it with a key or changing its lock, without obviously giving any justified reason.
Thus the Cassation, V Criminal Section sentence no. 12/2018 stating "The element of violence in the crime referred to in art. 610 of the Italian Criminal Code, is identified in any means suitable to coercively deprive the offended person of the freedom of determination and action, as it may also consist of "improper" violence, which takes place through the use of anomalous means aimed at exerting pressure on the will of others , preventing their free determination. [...] The Supreme Court has deemed the crime of private violence integrated in the conduct of those who prevent the exercise of the right of others to access a room or one of the rooms of a home, locking the lock. "
Change the lock to prevent the spouse or a rightful person from returning to the living quarters, according to the provisions of the Court of Cassation, in fact configures the crime of private violence.
Even more emblematic were the rulings of the Supreme Court regarding the prohibited stop in the second row. Article. 158, paragraph 2, lett. c) of the highway code, in fact, prohibits the stop in the second row (except in the case of two-wheeled vehicles or two two-wheeled mopeds or two motorcycles) and provide for an administrative sanction of 24 to 97 euros for mopeds and motor vehicles while 41 to 168 euros for the remaining vehicles. Article. 159, on the other hand, legitimizes police officers to forced removal if the prohibited stop constitutes a danger or serious obstacle to circulation.
However, much of the jurisprudence, has traced in the attitude of the offender, who park in double row blocking the exit maneuver of other cars, regularly parked there, integrate the crime of private violence, as well as any other attitude of obstacle or access to cd output. "Wild parking" of the vehicle. (Taranto Court decision n.2006 / 14; Judge of Peace of Rome, sentence n.27962 / 13; Court of Appeal of Palermo, sentence 22 February 2016 n.648).
Also punishable is the one who occupies the parking reserved for a specific disabled person due to its "status" preventing access, and thus effectively depriving it of its freedom of determination and action (Criminal Cassation V section judgment n. 17794 of 7 April 2017).
It is preferable to file a criminal complaint as soon as possible through a trusted lawyer and this to set in motion the protections that the law provides to the victims.
The Cecatiello Law Firm advises its clients for the best management of criminal proceedings.
Cecatiello Law Firm, Milan. Marriage lawyer, divorce lawyer, specialized in family law, child rights, juvenile criminal. Contact us.