Sometimes I perform in the profession I was able to assist customers, as formal suspects and / or prosecuted for acts committed in detriment of members of the police, were later acquitted following a finding of arbitrary its pipelines suffered by those "servants of the state" that initially hold the position of the alleged victim. To be fair
circumstances such as those I mentioned above are certainly far fewer than those in which I have found the allegations leveled at my representatives, but because I believe that the esteem and the respect due to members of the Forces' Order directly proportional to their spirit of devotion and respect that they show themselves to the citizens, I am convinced that every single case of abuse must be reported and stigmatized for two reasons: first, to demonstrate beyond doubt that certain episodes unfortunately occur and, secondly, to ensure that, once disclosed certain facts, no one can reiterate them feel above the law.
In this regard, since I have been able to examine a ruling by the Supreme Court that she was involved in an episode of real perpretato abuse by a police sergeant, I want to share the principles espoused by the Supreme Court and institutions Legal related also because, since it was a search of premises completely illegitimate, may be useful for understanding how, when and why the Police can enter homes without there being behind a judge's ruling.
Here, then, carry the sentence handed down by No. 48552 Sec. Sixth Court of Cassation of 18 December 2009, Articles 13 and 14 of the Constitution and art.
41 of Royal Decree No 6 May 1940 635 (cd Consolidated Laws of Public Safety)
Supreme Court Sec. Sixth - Sent. of 18.12.2009, No 48552
Conduct of case 1. The Court of Appeal of Milan upheld the sentence, 18.10.2005, by which the Court had sentenced the Como P. the sentence of eight months imprisonment for the crime of resisting a public officer and for the (aggravated art. cp 61, n. 2, and, therefore, brought ex officio) for personal injury against a police sergeant and of two DC police Station. Pognana Lario.
2. It is clear from the contested decision that the bailiff SA, who went to the address of PG to notify a citation for validation of eviction, had, via intercom, press the aim of the visit and received a refusal to open the front door el ' invitation to go away, even with vulgar expressions.
which followed the call of the Holy, the marshal of the CC. GGB (in civilian clothes, accompanied by two other policemen in uniform) went up to the house of the plan P., knocking, qualify and invited to open the door, getting the people who were in the house rejection and a statement that the door would be was opened up to the order of a magistrate.
"In the end, G. Marshal, who had meanwhile asked for reinforcements, had given notice in accordance with RD June 18, 1931, No 773, art. 41 (TULPS), opening the door within a certain time, otherwise he would have smashed the search for weapons. The door had remained closed, but after a few shoulder, and had given the Police had found front of a man with his arms up, shouting like a madman: Go away, you can do this, who are you, how dare you access to my apartment, she does not know who I am, I can transfer, the I Lieutenancy of losing control, "or something, then close to another policeman, who was in uniform, she starts at attention, I sincerely, for I am his superior."
hearing to seek payment pursuant to Art. 210 cpp (there is some criminal action on the complaint given by Fr), Marshall G. - Write as appellate judges - had indicated that he had "alleged the commission of a crime and had assumed responsibility to see that there was in the house, even breaking through the front door, had announced that they intend to search for weapons research and had alerted the P. the option to be assisted by someone you trust, but he was pressed between us and the rest of the apartment and as soon as someone had tried to get in touch with him, he began to launch elbows and even kicked on us. "
The witness added that "the confusion was such that a hard man was handcuffed."
3. Recourse against the ruling counsel for the defendant, claiming, art. Cpp 606, paragraph 1, lett. b), c) and e), lack of reasoning and non-compliance or incorrect enforcement of criminal law in relation to D.Lgs.Lgt. No 288, 1944, Art. 4, the lower courts have ruled out the existence of the cause of non-punishment of the reaction of the public official to act arbitrarily. Reasons for Decision
4. The appeal is based and be accepted.
5. The Royal Decree 773 of 1931, Art. 41, mentioned by art. 225 of the coordination rules cpp, attaches to the officers and agents of the police power to search "any building or any public or private housing" only when "they report, although evidence for the existence of weapons, ammunition or explosive materials, not reported o non consegnate o comunque abusivamente detenute”.
Osserva il Collegio che tale norma, al di là delle intenzioni del legislatore che l’introdusse nell’ordinamento giuridico, non ha mai conferito alla polizia giudiziaria un potere senza limiti e, tanto meno, un potere ad libitum dell’agente che procede, bensì il dovere di immediata attivazione in presenza di un determinato presupposto: la notizia, anche se per indizio, dell’esistenza di armi.
Tale avvertenza va sottolineata, a maggior ragione nello Stato costituzionale di diritto, introdotto dalla Costituzione repubblicana, in cui l’inviolabilità del domicilio privato è presidiata da garanzia costituzionale come diritto individual's basic, is expressly forbidden to perform searches of premises "except in the cases and manner prescribed by law in accordance with the guarantees prescribed for safeguarding personal liberty" (Article 14 of the Constitution, Section 2).
Even considering that the protection afforded to freedom of residence is not absolute, but finds the limits established by law for the protection of constitutionally protected paramount interest, as shown by the actual provisions of Article. 14 of the Constitution, and taking into account the undeniable need to put the judicial police are able to provide promptly and effectively in order to situations (such as abusive or otherwise illegal detention of weapons, ammunition or materials explosive) appropriate, by their very nature, expose to danger the social safety and order, it should be noted that the constitutional provision, in introducing the subject of law depart from the rule of inviolability of the home, in close liaison with the personal freedom, imposes a strict interpretation of Article interpreter. 41 RD cit., Which is devoid of all initiative and discretion of the judicial police and denied the possibility that the search can be made on the basis of mere suspicion (which may also have originated from a simple personal belief), being always required the existence of a given objects that make up "news, even to hint," which, by its nature must be based on a certain objective facts or made more certain and consistent with each other (see Constitutional Court, in particular the judgments nos. 173/1974 and 261/83 ordinance No 332/2001).
Outside of that condition, the search of premises is not only illegitimate, but also an arbitrary encroaching nell'indebita engraving of freedom at home, protected by the Constitution against any party, also appears to be against the public authority.
6. In this case, not only lacked any objective evidence of news that, in the house of the Father, there were improper weapons, as clearly emerges from the narrative of the story contained in the contested decision, which reports on "suspicious" of the public official, but the invocation of Article. 41, is quoted TULPS appalesa, the evidence, as a mere pretext used by Marshal G., to break the door without that there were grounds of law to exercise, to more violent ways, the power to search, given by 'order to protect public safety, and certainly not in order to reassert the primacy of power in the face of legitimate, as obstinate and stubborn refusal by P. not only to the bailiff, but also to the marshal of the Carabinieri.
It is worth also be pointed out that even before the overshooting of the goal the action of the bailiff and police intervened in its use was excessive and disproportionate to the conduct of the P.
The repeated insistence of the bailiff in requiring physical delivery of the summons for validation of their eviction in the hands of the recipient, despite the refusal by his opposite, has no legal basis (and not in any way justified the police action court), it is expressly provided, in terms of service of documents, that "if the recipient refuses to accept the copy, I note from the bailiff in the report, and shall be deemed made in person "(Article 138 CPC, Section 2).
7. Therefore considers that the conduct of the College P., challenged as resisting a public official (art. 337 cp), was caused by the arbitrary conduct of the officer taking police, exceeding the limits of institutional powers, because it is characterized by a gross misuse of public interest in relation to the purpose for which and the ordinance provides for the exercise of authoritative powers, so that should not be applied because of the punishment provided by Law June 15, 2009, No 94, Art. 1, paragraph 9, which ha reintrodotto, sotto l’art. 393 bis c.p., la causa di non punibilità già prevista dal D.Lgs.Lgt. 14 settembre 1944, n. 288, art. 4.
In linea con quanto questa Corte ha avuto modo di affermare, infatti, una perquisizione, che incide sull’inviolabilità del domicilio, presidiata da garanzia costituzionale, ove sia eseguita pretestuosamente, e quindi consapevolmente, effettuata ai sensi dell’art. 41 T.U.L.P.S., in mancanza di oggettivo indizio di esistenza di armi, costituisce, oggettivamente per offensività e soggettivamente per vessatorietà, atto arbitrario del pubblico ufficiale (v. Cass. n. 5564/1996, Perrone).
8. Per il delitto di lesioni personali le parti offese non have submitted a complaint office and proceeded under the provisions of art. Cpp 582, paragraph 2, Art. Cpp 585, paragraph 1, and Art, 576 Code of Criminal Procedure, paragraph 1, no 1, having been challenged aggravated teleological connection (art. 61 cp, 2). This is aggravating
subjective in nature, which is based on the most dangerous of those who, despite his criminal intent to implement, does not hesitate to commit a crime means to execute another. That fact should be known by the agent and must fall in the representation of the event. For its existence is necessary proof that the will of the agent at the time of the offense-half (in this case injury) was finally directed to commit the crime-end (resisting the police), an objective which must already exist in the mind of the agent to allow a clear identification of its legal aspect (see Cass. No 4751 / 1989, Costa).
detect the Board that in case such evidence is completely lacking, instead of appearing in P. lacked both the will and the representation dell'aggravante, aiming his intent and conduct only react to what, subjectively, he considered an intolerable abuse of power and, objectively, was an arbitrary act.
excluded, because the challenged aggravating circumstance, it found the admissibility action for lack of prosecution.
PQM
The Court sets aside the sentence without referring contested, with reference to the crime of resisting a public officer, since the person is not punishable under Article. 393 bis, and, with regard to the crime of bodily injury, excluding the disputed aggravating for lack of prosecution.
deposited at the Registry December 18, 2009
Constitution Article 13 Personal freedom is inviolable.
is not allowed any form of detention, inspection or personal search or any other restriction of personal liberty, except by a warrant from the court [cf. art. 111 c. 1, 2] and only in cases and manner provided by law [cf. art. 25 c. 3].
In exceptional cases of necessity and urgency, strictly defined by law the police authorities may take provisional measures, which must be reported within forty-eight hours to the court and, if it does not convalid.a in the next forty-eight hours, are revoked and become null and void. It is punished
any physical violence or moral persons, however, subject to restrictions of freedom [cf. art. C. 27 3].
The law establishes the maximum period of preventive detention.
Constitution Article 14 The domicile is inviolable. There can be
perform inspections, searches or seizures, except in the cases and manner prescribed by law in accordance with the guarantees prescribed for safeguarding personal freedom.
Verifications and inspections for reasons of health and safety or for economic and taxation are governed by special laws.
Royal Decree of 6 May 1940 No 635
Article 41: Officers and employees of the judicial police, who have news, although evidence of the existence, at any private or public place or in any house, arms, ammunition or explosive materials, or not reported not delivered or otherwise illegally detained, shall immediately search and seizure.
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