08 Mar legitimate use of weapons

The article 53 of the criminal code acts in the first paragraph: “Stopping the provisions contained in the two previous articles, The public official is not punishable that, In order to fulfill a duty of your office, It makes use or order to make use of weapons or another medium of physical coaction, When you are forced by the need to reject violence or win a resistance to the authority and in any case to prevent the consumption of massacres crimes, shipwreck, submergence, aviation disaster, railway disaster, voluntary murder, Armed robbery and kidnapping ". It is a subsidiary and supplementary discriminant: It only operates where the conditions of the legitimate defense lack (art. 52) and the fulfillment of a duty (art.51). The discriminant - contrary to the legitimate defense that operates in favor of "anyone" - justifies the use of weapons only by public officials, and specifically those public officials who are institutionally authorized to resort to the use of force to carry out their institutional duties. However, The second paragraph extends the applicability of the provision also in favor of "any person who, legally requested by the public official, the assistance of assistance ". The last paragraph, then, underlines the supplementary and subsidiary nature of the rule by referring to the law as regards the determination of other cases in which the use of weapons or other physical coating is authorized. The specific reference to the public official as a recipient of the cause of justification requires that the use of the weapon is aimed at fulfilling a duty of one's office or to eliminate the obstacle that is opposed between the public official and the duty itself. It therefore does not work if the subject acted for a private purpose or in the exercise of a faculty, and not a duty. The media must also be those indicated by the service provisions or in any case instrumental with respect to the realization of the duty. There are two hypotheses in which it is considered legitimate to resort to the use of weapons: When the public official must reject violence - which can be as direct against the public official as against things or people he has the institutional duty to protect - or win a resistance. Indispensable requirements are the need and proportionality. Necessity means that the violence to be rejected and the resistance to be won must be of a scope that the use of weapons is obliged. Proportionality, on the other side, It requires a case assessment of the opposing interests in consideration of the conduct of the public official with respect to the danger deriving from violence or resistance. The painful and much discussed question is the operation of the standard in the event of passive or escape resistance. Indeed, For years, the jurisprudence has excluded the applicability of the article 53 In the aforementioned hypotheses, claiming that the norm, Pur not specificandolo, refer only to active resistance and not to passive resistance, in the second case, any physical connotation is missing. This conclusion, however, It is too simplistic and penalizing for the public official. The most recent jurisprudence, Like this, has excluded any relevance of the difference between active or passive resistance, preferring to read the question rather in light of the principle of proportionality. This setting led to admit, for example, the use of weapons for intimidating purposes against the fugitive. Proportionality does not work, But, compared to the seriousness of the offense, but compared to the concrete methods of escape and resistance. The Court of Bari, indeed, He decided to exclude the culpable excess in the event that we have resorted to the use of weapons "in order to arrest the dangerous conduct of the driver of a car in crazy race that has jeopardized pedestrians and other cars in circulation, Without stopping at the alt's intervening intervened. " The arrangement, then, it must also be read in the light of the article 2 of the ECHR, in terms of protection of the right to life of each individual. The rule excludes the violation of this right whenever the use of the use of force is made absolutely indispensable by the need to ensure the defense of any person against illegal violence, to perform a legal arrest or prevent an evasion and to repress a riot or insurrection. The Supreme Court in 2003 he considered the article 2 immediately applicable in our system, and specifically in the case of escape and regardless of the principle of proportionality. The Court also said that "... if a more serious event occurs than the one wanted, This falls within the risk inherent in the use of weapons by the public official, and consequently it cannot be placed on the same. The putative exemption of the legitimate use of weapons can be recognized, According to an ex -ante evaluation, when the agent has considered it by mistake that he is in a factual situation that, where it was really existing, He would have been in the need to use weapons. " It is not lacking, But, Who has criticized this ruling both in terms of immediate applicability of the article 2 of the ECHR, is questioning the compatibility of this regulatory bring with our Constitution, which in any case considers the right to the life of the fugitive with respect to the need for his arrest. Instead, it is on the basis of an integrated and coordinated reading of the criteria of necessity and proportionality and the rules of the Constitution and the ECHR which must be discussed the admissibility of the use of the use of weapons in the event of escape. In conclusion, The use of weapons must be considered legitimate in case of escape only as an extreme ratio and when the ways of escape are such as to endanger the safety of third parties or public officials themselves. L’uso legittimo delle armi è quindi una causa di giustificazione, (it is useful, preliminarily, open a parenthesis to remind everyone that, In Italian criminal law, causes of justification are defined, or even discriminants, those situations, regulatoryly provided, In the presence of which the contrast between a fact, in accordance with an incriminating case and the entire legal system. Therefore, In the presence of these situations, a fact that would be otherwise anti -juridical, such is not because the law allows or imposes it. In the presence of a cause of justification, the fact is legitimate from the origin). Parenthesis closed, resuming the speech, We therefore say that the legitimate use of weapons is a cause of "proper or privileged" justification of the crime - privileged in the sense that, recipients of the standard are exclusively the subjects having the qualification of public officials, as well as, similarly as regards the correlative hypothesis referred to in art. 41 C. Pen. mil. of peace, The subjects entitled to take advantage of the same are exclusively the "military" - introduced in the Italian criminal system with the code of the 1930, cd. Rocco code, In order to remove the situation of legal uncertainty existing during the validity of the previous Zanardelli Code due to the silence tanted by the latter on the use of weapons or coaction in general by the agents and officers of the public force. "From the Code of the 1930s, the discriminant was introduced with the declared purpose of ending the jurisprudential uncertainties about how and within which limits justify the use of weapons against rebellions to authority. In truth it was a discriminant who, not so much in its essence, as for its autonomous forecast and above all for its amplitude, reveals a clear authoritarian imprint, how proven the non -mention of the . The discriminant of the legitimate reaction to the arbitrary acts of the public official was repealed in coherent parallelism and the authorization to proceed for the crimes committed in the police service and relating to the use of weapons was introduced (art. 16 c.p.p.).”(taken from the criminal law manual, General part, by Ferrando Mantovani, 1988, pag. 269). Previously, To justify the lawfulness of the use of physical coaction by public officials, in the absence of specific provisions, the state of necessity or the fulfillment of a legal duty or, in the end, to the Institute of Legitimate Defense, on which the acquittal sentences often used to be based. The nature of discriminant of the legitimate use of weapons is peacefully recognized by all the doctrine that agrees, mostly, on its character of absolute politicality, whose introduction into the code reveals “a phenomenon of all importance and constitutes one of the multiple reflexes, regulatory, of the establishment of the fascist regime and the consolidation of an institutional structure that presents itself to the subversor of the previous system ". Tale convinzione è stata avvalorata anche dalla mancata menzione tra i requisiti dell’esimente della “proporzionalità” intesa come espressione di un bilanciamento tra interessi contrapposti alla luce della situazione concreta. Secondo il giudice di legittimità “la scriminante dell’uso legittimo delle armi è configurabile anche quando l’attività dell’agente è posta in essere nel corso della fuga dei malviventi, provided that said escape is not aimed exclusively at the conservation of the state of freedom but, for its ways, determines the onset of dangers for the safety of third parties " (Cass. Pen., Sez. IV, 16/02/2015, n. 6719.). It is obtained, on the contrary, that the harmless nature of the escape, combined with the absence of any damage or danger, would see how disproportionate the use of weapons to make it cease. Lapalissian the statement in question if you take into account what is reiterated by the Supreme Court, for which "the use of weapons towards unarmed people, flee to escape to escape intimation or arrest, it is not legitimate, Being a passive resistance behavior " (Cass. Pen., Sez. I, 21/05/1991, n. 5527). What has just been said is also well specified in a pronunciation that, in identifying the characteristics of the active resistance, identifies the discrimination precisely in the probable realization of further crimes by those who subtract from the documents carried out by public officials, recalling the criterion of proportionality (Second Cass. Pen., Sez. IV, 22/09/2000, n. 9961 "When the use of the weapon is aimed at blocking the escape of criminals, The aforementioned proportion must be considered existent where, For the specific ways in which the fugitives try to escape capture, are reasonably progressible, In addition to the commission of crimes to whose assessment they try to escape, also current risks for the safety and safety of third parties ". And also "the non -compliance of the order to stop given by the public official integrates a merely passive resistance, unsuitable to justify the use of the weapon by the latter. (Case relating to recognition of liability for the crime referred to in art. 589 c.p. of a brigadier of the carabinieri who, After having ordered the alt to an resistant vehicle, seeing that the driver did not stop and continued the march, exploded a gunshot in the direction of the vehicle, directly hitting the driver to death)”, (Cfr. Cass. Pen., Sez. IV, 01/03/1995, n. 2148). The mere will to regain freedom, therefore, bossing, squeeze, running, does not justify, on the other hand, the use of the weapon: In short, where violence or an active dimension of resistance is missing, The proportion will be missing from the origin, where the weapon was used. In terms of legitimate use of weapons, in the case of resistance put in place with the escape, The proportion relationship between the use of the weapon and the non -violent character of the resistance opposite to the public official is missing. The jurisprudence of the Supreme Court, on escape, has modified radically, Like this, the original interpretative perspective, abandoning the search for the necessary legal qualification of situations necessary, instead focusing attention on the overall conduct held by the fugitive that, if considered dangerous and jeopardizes assets of fundamental importance, such as the life of passersby, justifies the use of weapons by public officials. In this perspective, The relevant criterion to confer legitimacy for the use of coactive means is in the necessary proportion between the assets in conflict, as a principle immanent to the discriminant provided for by art. 53 c.p.. It has significantly noted, always in the context of the requirement of proportionality between goods and means, as the illegality or not of the conduct of the private individual assume does not take relevance, noting only its oppositional purpose to a provision of the Authority (so of theogu, "The legitimate use of weapons or other means of physical coaction", in criminal archive, 1972, 191). According to Mantovani: “…. it is particularly compared to cases of mere passive resistance that weapons can be, as a rule, replaced with less well -harmful coercive means. The public official who shoots on the fugitive is punishable, killing him, While to stop it, it was enough to target the tires; or that makes the railway tracks clear or the property using serious violence on the occupants, When the most bland media of physical coaction would have been sufficient (Example the pushed or transport them out of the occupied places). Equally implicit must be considered the limit of the proportion between the injured good and what the fulfillment of the duty of office tends to satisfy. It is not mentioned in the article 53 because the legislator of the 30 In balanceing the interests in conflict he believed to give the prevalence, a priori, to the public interest of the prompt fulfillment of the duties of the Institute compared to citizens' assets. Since this absolute prevalence is no longer compatible with the hierarchy of values ​​set by the Constitution, If you don't want to consider the article unconstitutional 53, It must be admitted that the balancing of interests, which is the basis of the discriminant, must be done concrete, case by case. The proportion therefore exists when the use of weapons does not harm an interest having, For the current system, greater value than that satisfied with the fulfillment of duty, who wanted to prevent. The use of weapons is legitimate, eg, To prevent the assault on Parliament. Absurd would be, instead, discriminate the death of one or more subjects, that resisting, prevent a public official from fulfilling a duty placed to guarantee an interest, otherwise protected with a contravention. Traced back to the aforementioned limits, The use of weapons and physical coating means is converted by a regime discriminant to protect the democratic order " (Cfr. Ferrando Mantovani, Criminal law, 1988, pag. 271-272). The explosion of jurisprudence and doctrine agreed in believing that the only form of resistance such as to legitimize the use of weapons was active resistance (whose distinction compared to the previous hypothesis of violence has aroused more than some doubts), while the passive one, to which the "escape" must be assimilated, it would be by its very nature considered insufficient to justify the application of art. 53 c.p., as it would concretize in mere passive attitudes, And the resistant will would be without physical connotation, consequently making it disproportionate and unmotivated, and obviously illegitimate, any use of weapons by the public official, also in the event that the obligation to arrest by the members of the police or the faculty of arrest in the act of the private individual is provided (Cfr. Cass., n. 7570/1999, in terms of attempted theft). This general assumption, however, In recent times it seems to give way to a more flexible position both within the jurisprudence (Cass., Sez. IV, 7 June 2000, Bracelli), both in the field of doctrine, which significantly detects how the automatic and general exclusion of the relevance of passive resistance and escape from the operational area of ​​art. 53 c.p. sarebbe troppo semplicistico e penalizzante per l’operatore di polizia. Tale principio, although not expressly recalled by the codicistic dictation, must be considered implicitly operating, also by virtue of a constitutionally oriented reading of the norm, which leads to the implementation of a necessary balance to be carried out on a case -by -case basis. Balance that must take place so much among conflict assets (i.e. the value of the different opposing interests), how much between the means used and the resistance to be won, so as to delimit the boundaries of applicability of the discriminant of the legitimate use of weapons. From this it follows that passive resistance if it does not in itself justify the use of the weapon, Certainly it allows the use of different and less invasive media, so that the use of force is rigorously proportionate to the type and degree of the opposite resistance (Cfr., infra, paragraph 11., sent. d. – Cass., n. 854/2008), also contemplating a persuasive and intimidating use of the weapon itself. Specifically of the authoritative "escape", he detected how it in itself considered does not harm, nor does primary goods endanger, and must not be "confused" with the prior conduct (which realizes the concrete injury or danger to goods of significant importance). The use of force does not have to proportion not to the seriousness of the crime committed, but to the form of resistance subsequently carried out by the subject who tries to escape capture (So Mantovani). The concrete dynamics of the escape and the complexity of the story will be, then, The elements on the basis of which to calibrate and proportion the response and possible use of force, including the use of weapons, all in the awareness that to the public official called to fulfill duty, unlike the hypotheses of legitimate defense or the state of necessity, The possibility of renunciation is not recognized or a commodus disssusus (Cass., n. 20031/2003; Cass. n. 9961/2000). The most recent jurisprudence, in the senso, It is clear in believing that where the methods are such as to endanger the safety and safety of third people (Think of the hypotheses of "armed" escape or escape with a car at crazy speed in a densely populated area), The use of weapons is to be considered legitimate, provided that a different less harmful intervention is not possible (Use of the weapon as an Extrema Ratio) and that there is a graduation of the intervention in the context of the principle of proportion.