25 May compensation for wrongful detention

Reparation for unjust detention is a specific remedy aimed at compensating in a solidarity way the prejudice suffered by those who have suffered an unjust limitation of their personal freedom.

In attuazione della specifica previsione costituzionale secondo la quale “la legge determina le condizioni e i modi per la riparazione degli errori giudiziari” (art. 24, ultimo comma, Cost.), si è reso necessario introdurre nel codice di procedura una regolamentazione ad hoc, contenuta negli artt. 314 e 315 c.p.p. Oltre che dalla Corte Costituzionale, the right to compensation for unjust detention is also recognized by international sources and, specifically, and by the European Convention for the Protection of Human Rights (CEDU) signed in Rome in 1950 (that in the art. 5 provides that any person who is the victim of unlawful arrest or detention, as they are carried out in violation of one of the articles contained in the Convention itself, is entitled to compensation), and by the International Covenant on Civil and Political Rights signed in New York in 1966 (that in the art. 9 provides that anyone who has been the victim of unlawful arrest or detention has the right to compensation).

In our system it was introduced only with the current code, in execution of the directive of the enabling law; it is due solely because of the formal or substantial injustice of the custody, without the need for any prior investigation regarding any illicit act by the judicial authority.

This is a specific remedy aimed at compensating in a solidarity way the prejudice suffered by those who have suffered an unjust limitation of their personal freedom.

It does not cover any undue restriction of personal freedom, but only that relating to precautionary custody; they will detect, then, custody in prison, that in a place of care, house arrest (given their equivalence to precautionary custody); they detect, in the end, by express regulatory provision (art. 313, comma 3) including security measures unlawfully placed on a provisional basis.

It is not, instead, no compensation is provided in the case of non-custodial coercive measures or interdictory measures;

to about, in doctrine the greatest doubts have been raised regarding the extent of the residence obligation, especially if accompanied by the additional ban on leaving home for many hours of the day, given the highly afflictive nature of the same in terms of limitation of personal freedom.

According to the provisions of the art. 314 c.p.p., the right to the so-called. fair compensation, i.e. to a monetary compensation or, taking into account the nature of the damage and the conditions of the person entitled, to a life annuity, or even reception in an institution at the expense of the State, it's up to:

• to those who have been acquitted with an irrevocable sentence because the fact does not exist, for not having committed the crime, because the act does not constitute a crime or is not foreseen by law as a crime, in relation to the precautionary custody suffered, provided that he has not caused or contributed to causing you due to willful misconduct or gross negligence (c.d. substantial injustice) (art. 314, comma 1, c.p.p.);
• to the acquitted for any reason or to the convicted person who has been placed in precautionary custody during the trial, when with an irrevocable decision, it has been ascertained that the provision dispositive of the measure was issued or maintained in the absence of the applicability conditions established by law (c.d. formal injustice) (art. 314, comma 2, c.p.p.);
• to anyone who has obtained a dismissal order or a ruling not to proceed, the provisions of the two previous paragraphs also applying in this case (art. 314, comma 3,c.p.p.).

Following the partial declaration of constitutional illegitimacy of this article, affirmed with the sentence of 25/07/1996, n. 310, a similar right was also recognized to those convicted of unjustly suffering detention due to an erroneous execution order.

The Consultation is, Furthermore, also intervened with other rulings to broaden the scope of the law:

1) the first pronunciation, of the 02/04/1999, n. 109, with which he declared the constitutional illegitimacy of this provision

– both in the part where the paragraph 1 it does not provide for those who have been acquitted with an irrevocable sentence because the fact does not exist, for not having committed the crime, because the fact does not constitute a crime, or is not provided for by law as a crime, has the right to fair compensation for the detention suffered due to the arrest in flagrante delicto or arrest of a crime suspect, within the same limits established for precautionary custody;

– both in the part where the paragraph 2 it provides only the same right, within the same limits, belongs to the person acquitted for any reason, or to the condemned man who, during the process, has been arrested in flagrante delicto or arrested as a suspect of a crime when, with an irrevocable decision, the conditions for validation were found to be non-existent;

2) the second, of the 20/06/2008, n. 219, with which he declared the constitutional illegitimacy of this provision in the part in which, in the event of painful precautionary detention, in any case, the right to fair compensation conditions the acquittal on the merits of the charges.

3) with a ruling of rejection (16/07/2004, n. 230), the Council recognized the right to compensation in the case of acquittal for violation of ne bis in idem, as it implies the implicit recognition of the illegitimacy of the precautionary measure suffered despite the preclusion of the res judicata.

4) finally, the Court of Cassation recognized the right to compensation in the case of extension of a precautionary measure whose tardiness was recognized (Cass. pen. 27/05/2005, n. 26783) and detention lasting beyond the term established by law (Cass. pen. 10/10/2000, n. 3346).

Il diritto alla riparazione è, instead, always excluded:

• for the part of pre-trial detention counted for the purposes of determining the extent of a sentence, or for the period in which the limitations resulting from the application of custody were also suffered under another title;
• when with the dismissal order or with the sentence it has been stated that the fact is no longer foreseen by law as a crime, given the repeal that occurred, for the part of custody suffered before the abrogation itself.

To obtain recognition of this compensation, it is necessary that the subject has not given, or competition to give, cause the custodial measure with malice or gross negligence; the absence of a specific indication, by the legislator, of the meaning to be attributed to this phrase, has led to the production of different jurisprudential solutions which – by expanding the boundaries of these concepts - they have correspondingly reduced the scope of applicability of the rule (eg, was deemed to constitute gross negligence, with consequent exclusion of the right to compensation, silent or mendacious behavior regarding circumstances unknown to the investigators – Cass. pen. 09/11/2017, n. 51084, as well as imprudent or ambiguous associations with subjects burdened by specific criminal records or involved in illicit trafficking, Cass. pen. 27/02/2015, n. 8914).

La domanda è presentata, personally or through a special prosecutor, under penalty of inadmissibility,

within two years from when:

• the sentence of acquittal or conviction has become irrevocable;
• the ruling of no place to proceed has become incontestable;
• the dismissal order has been notified to the person against whom it was pronounced pursuant to the paragraph 3 dell’art. 314 c.p.p.

L’entità della riparazione non può comunque eccedere i 516.456,90 euro.

Finally, they apply, as they are compatible, the rules on the reparation of judicial errors.