Criminal Appeal, Case No. 45547 of 28 December 2010.
offend your spouse can set up the possibility of criminal maltrattramento of Article. 572 cpc. This was established by the Sixth Criminal Chamber of the Supreme Court ruling by December 28, 2010, No 45,547 whereby it is evident that the usual behavior, characterized by an indefinite series of verbal attacks, abusive and offensive, may well lead to a conviction for the crime of abuse under Article. 572, cp.
As reinforced by the dominant in law, the crime at issue is the submission family members to a series of continuous acts of harassment and causing such suffering, deprivation, humiliation, which constitute a source of constant discomfort and incompatible with normal life. The individual episodes that are a normal behavior, make manifest the existence of a criminal on the complex program of events, driven by a united will to harass the debtor.
The crime of domestic violence, in consists of a series of acts prejudicial to the physical integrity, freedom or dignity of the taxpayer, against whom he is put in place a supply of systematic oppression and programmed such that the coexistence particularly painful acts supported by the generic integrated from a conscious intent of affecting the physical or moral integrity of the victim.
offenses can also integrate the facts in question. According to the national nomofilattico fact such conduct, constantly repeated, showed the existence of a criminal program aimed at undermining the integrity of the victim, whose individual episodes, to be assessed jointly, constitute the expression and where the fraud takes the form of the will including all the facts and coincident with the aim of making the uncomfortable and painful existence of his wife.
Supreme Court
SECTION VI CRIMINAL
Judgement of 16 November to 28 December 2010, No 45,547
(President Lattanzi - Rapporteur Fidelbo)
Conduct Process
By decision of 2 April 2007, issued by the Court of Bassano del Grappa, PMB was found guilty of the crime of abuse towards his wife, LS, and sentenced to eight months' imprisonment, in addition to compensation of non-pecuniary damage in favor of the plaintiff spouse formed, cleared a total of € 30,000.00.
a subsequent ruling issued June 18, 2007 by the same court found the accused was also responsible for the offense under Article. No 570 paragraph 2 2 cp, to have failed to lend a livelihood for his wife, failing to pay the monthly allowance of € 4,000.00 set by the judge in the civil judicial separation, and ordered to pay a fine of Euro 3,350.00, as follows the penalty following the replacement of the prison sentence in the fine, even in this case was ordered to pay damages and moral in favor of spouses formed plaintiff, settled respectively in Euro 100,000.00 and Euro 15.000,00.
Both sentences were appealed by the accused before the Court of Appeal of Venice, meeting the two cases, fully upholding the ruling of April 2, 2007, while the other partially overturned the decision revoking his head on the quantification of financial loss, putting the parties before the civil courts, for the rest of this ruling was also confirmed.
appeal against a sentence of counsel for the defendant appealed to the Supreme Court.
The first ground relied on the erroneous application of Article. 572 cp, as Territorial Court found the existence of ill-treatment in relation to simple incidents of abuse directed the accused to his wife on the occasion of his marriage at the home within a week, made incapable of achieving the "demeaning and humiliating way of life" referred to by the sentence.
The second reason has detected an inconsistency in the reasoning that identifies abuse, at the same time, the cause of disputes and the conduct constituting the abuse.
The third reason has disputed the finding that there is the crime of intentional abuse, because the judges failed to take into account that the injuries occurred during periodic disputes between spouses.
With fourth reason, the applicant complained that the claim of responsibility for the offense under Article. 570 cp covered a period of time (August 2004 - September 2006), for which there is no reference in the act of a complaint, which is limited to demand punishment for the sole obligation of payment of the check failures occurred in August and November 2004.
This criminal complaint procedure, neither the prosecutor nor the court could proceed to amend the complaint by extending the period in dispute.
a fifth plea, criticized the decision under appeal for failure to Next decide on the request of the two offenses condemned.
then counsel for the defendant has filed new grounds, which has denounced the erroneous application of Article. 572 cp and the failure to state reasons on the persistence of the habitual and abusive behavior by the accused in place, the absence of the pardon application of Law No. 241, 2006; lack of motivation with regard to non-granting of probation.
Reasons for Decision
The grounds under which the applicant, in several respects, criticized the ruling as saying its responsibility for the offense of abuse are unfounded.
Courts of Appeals have made a correct application of Article. Cp 572, believing that the conduct vulgar, disrespectful and humiliating, usually in place by the accused against the spouse, have created a system family life and demeaning and humiliating.
Indeed, habitual behavior characterized by an indefinite series of verbal insults and offensive as those made by the accused, may constitute the crime of abuse, especially in such conduct, constantly repeated, showed the existence of a program criminal intended to undermine the integrity Moral of the victim, whose individual episodes, to be assessed jointly, constitute the expression and where the fraud takes the form of the will including all the facts and coincident with the aim of making uncomfortable and as painful as possible the existence of wife.
The detailed findings of fact contained in the contested decision is therefore put into crisis by the defensive attempt to make an assessment of isolated and episodic abusive conduct, but that, taken together, have incorporated the crime of abuse.
unfounded and also the pattern with which the applicant challenged the claim of responsibility for the crime in art. Cp 570 for referring to periods not covered by the act of complaint.
In this regard it is noted that when the head of charging contained in the decree of indictment on a crime challenges a permanent time spent specifically identified in time, at least in its end, the court may take into account the following protracted drink only when there are further challenged by the prosecution pursuant to Art. 516 cpp (Sect. a., November 11, 1994, No 11930, PM in proc. Polizzi). In fact, the postponement of the final date of stay affect the identification of disputed fact as initially, result in different, In terms of time, which affects the severity of the offense and length of the sentence and may affect the operation of extinguishing any causes.
In this case, there was the change of the defendant from the prosecutor art. 516 cpp, but the applicant denied the right to amend the indictment in relation to a criminal complaint procedure, in which the plaintiff has referred to conduct that occurred in a temporal context.
In reality, the fact that there is a lawsuit does not change the terms of the problem, because even then it is possible a change of imputation in the manner described above. The lawsuit does not require special formulas or specific indication of the crimes configurable, so that the statement of the facts and the demand for punishment of the perpetrators are sufficient for the prosecution for the offense identified and subject to indictment, which can be modified under art. 516 Code of Criminal Procedure, as happened in this case.
In relation to the alleged application of the pardon, it is noted that the appeal against the refusal of the pardon is permissible only if the trial court has explicitly ruled out such application, and when she failed to give must be brought before the enforcement court (Section V, October 22 2009, No. 43262, Albania). In this case the Court of Appeal did not comment at all, so why should be considered unacceptable.
Inadmissible is also the reason for which the applicant complains of the denial of probation, as it does not appear to have been claimed in the appeal, as required by art. 606 paragraph 3 cpp.
Instead, founded the plea alleging lack of enforcement proceeding.
The case is considered not to apply the continuity between the two offenses as may be determined by the execution. Indeed, the application of discipline the continuation in the implementation of a subsidiary nature and is subject to a supplementary condition that has been excluded by the court of cognition, so before a specific request of the accused, the court of cognition is not entitled to postpone the execution phase proceedings Identifying whether or not the criminal intention of the various offenses (Section II, November 16, 2004, No. 50155, Minicucci).
Therefore, the sentence must be set aside only to the latter, with reference to another section of the Court of Appeal of Venice, because it examines the request for continuation.
the remainder of the application must be rejected.
PQM
to quash the decision under appeal in the point concerning the continuation and refers to another section of the Venice Court of Appeal for a decision on that point. Dismisses the remainder of the application.
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