13 May stumbling block

The offendicula are means of defense of property (ad is., Barbed wire, traps, explosive devices, electric barriers etc.). A part of the doctrine deems it necessary to refer to the art. 51 co.1 c.p. (exercise of a right). The right to property pursuant to art. 832, Civil Code attributes to its owner, owner, in addition to the real and absolute subjective right to enjoy and dispose of the thing within the limits and with the observance of the obligations established by the legal system, also the faculty to prepare for its protection suitable means aimed at causing offenses (stumbling block), to third parties, who already have a generic duty of abstention from disturbing the enjoyment of the mentioned property right. These "offensive" means find legal justification as they are brought back within the sphere of operation of the exculpatory or exemption from the exercise of the right pursuant to art.. 51, c.p. . Criminal jurisprudence has brought the Offendicula back into the context of the exculpatory pursuant to art. 51, c.p., entitled "Exercise of a right or fulfillment of a duty" provided that the following requirements are met: a) proportionality of the offense; b) a non-excessive attitude to harm and c) are provided with adequate publicity, i.e. easily visible. In this regard the Court of Cassation, Section 1 criminal with the sentence of 4 April 1990, n.° 5141, he has declared: "The legitimacy of recourse to the "offendicula" must be linked to the cause of justification of the exercise of a right: that of the preventive defense of the right itself, patrimonial or personal. This is due to the absence, at the time of their preparation, the requirements of the actuality of the danger and the need to defend against it, typical of self-defense. so that, but`, the defense of the law through the use of the "offendicula" can be considered permitted, it is necessary that they are not - in themselves and by their very nature - suitable for causing events of significant gravity, such as personal injury or the death of the one whom the protected right attacks. Se, instead, These are tools that have an intense harmful charge and are, therefore, capable of causing consequences harmful to personal safety, it is necessary – for the application of the cause of justification pursuant to art. 51 c. p. - make, first of all, a judgment of comparison and proportion between the defended and attacked asset and the offended one ed, also, ascertain whether the presence of the "offendicula" had been duly reported and highlighted, so that the aggressor could and should know the danger to which he voluntarily exposed himself". E’, that is, It is necessary that the offensive potential of the offendicula be limited in relation to the offensive capacity, on the one hand, and not indiscriminate in relation to the recipients on the other. So, in that perspective, is, it is necessary that the non-offending subject is able to recognize the existence of the offendicula and does not run the risk of inadvertently being injured. The jurisprudence has brought back, as already clarified, the offendicula in the ambit of the exculpatory pursuant to art. 51 c.p. excluding, on the other hand, their reconciliation with legitimate defense given the absence of the actuality of the danger. With reference to the judgment of proportionality between the offensive capacity of the offendicula, the potentially injured interests and the level of the injury on the one hand and the right to property on the other, the relative evaluation is left to the prudent judgment of the judge. The predisposition of the offendicula is lawful (discriminated against), where the means is proportionate to the asset to be defended and allows the safety of third parties who are not aggressors to be adequately safeguarded, is not particularly harmful to physical integrity and its automatic operation is adequately reported. According to prevailing doctrine, the exculpatory of the exercise of the duty pursuant to art. 51, c.p., occurs when certain conditions exist, as in the first place the existence of a right (sensible side) or any juridical power to act, as an active and advantageous subjective legal situation, such as individual law, potestative law, legal authority or faculty, except legitimate interests and the c.d. simple interests. Instead, other authors believe that it must be a real subjective private right, directly and individually protected by law. Then this right must find its source of the discriminating right in a law in the strict sense, a regulation, an administrative act, a judicial order, a private law contract, the custom, a community source. Subsequently, according to the aforementioned prevailing orientation, the right must be exercised by its holder or his representative, to which the exculpatory in question will extend, in the case of non-personal right (ownership). Mantovani justifies, otherwise, the non-punishability of the offense deriving from the offendicula depending on whether the offended person is a third party who is not the aggressor or the aggressor. In the first case if the aforementioned limits are respected, the exculpatory of the exercise of the right will be invoked. In the second case, instead, it is stated that the fact is discriminated against by legitimate defense for which the limits of lawfulness of the action will no longer be those of the exercise of the right, but those broader than self-defense. Court of Cassation, Section 4 Criminal Judgment 15 April 2010, n.° 14519 It reaffirmed: The legitimacy of recourse to the "offendicula" must be linked to the cause of justification of the exercise of a right: that of the preventive defense of the right itself, patrimonial or personal. So that, But, the defense of the law through the use of the "offendicula" can be considered permitted, it is necessary that they are not - in themselves and by their very nature - suitable for causing events of significant gravity, such as personal injury or the death of the one whom the protected right attacks. Se, instead, these are tools that have an intense harmful charge and are, therefore, capable of causing harmful consequences to personal safety, it is necessary – for the application of the cause of justification pursuant to art. 51 cod. pen. - make, first of all, a judgment of comparison and proportion between the defended and attacked asset and the offended one ed, also, ascertain whether the presence of the "offendicula" had been duly reported and highlighted, so that the aggressor could and should know the danger to which he voluntarily exposed himself. (Case in which it was prepared, to prevent access to land, a spiked bar hidden in the grass). So that the punishability of the crime committed can then be excluded, the same norm that recognizes the law must allow, at least implicitly, to be able to exercise it through that determined action which as a rule constitutes a crime. These are the so-called. limits on the exercise of the right, which may be intrinsic, if they can be deduced from the rationale and from the abstract content of the norm from which the law derives (think of the power to destroy one's own thing as intrinsic limits are those set by art. 423, comma 2° c.p., according to which whoever sets fire to his property is punished if the fact causes danger to public safety), or extrinsic, if they can be derived from the legal system as a whole, including criminal law, as aimed at safeguarding rights or interests that are of equal or greater value than that to be exercised, based on a balancing judgment. Remember then that for the rights established by ordinary laws, the limits are deduced from the source and from the set of other laws contained in the entire system, while for those constitutionally guaranteed, only those tending to satisfy other constitutional interests of equivalent rank are considered limits.