Legittimo impedimento is defined as such failure quell'incolpevole circumstances in which the subject does not leave any opportunity to appear (G. Campese, Criminal proceedings in closed session, Padova, 2010, 43). This situation must be absolute and current (Cass.pen. Sec. I, 03.04.1996, No 2142). Does not, therefore, a situation which, even if present, allow the accused to attend the hearing (Understood as an event framed and circumscribed within a limited period), and that context that even comes a total impossibility for the accused to appear before the court, is located at a hearing before being terminated because the impediments at the same time.
E 'to make the court a discretion as to which situations fall within the definition of such failure: the consideration of the context follows, then, value judgments on the actual ability of the event complained of by the accused to stop him, there and then time to take part in the hearing. So, for example, the Court of Ferrara in single judge has said it was not valid excuse that the accused had not appeared at the hearing by announcing that he was suffering from renal colic the day before: the basis of the evaluation of the judge, given that the accused would appear, being able to relieve the pain medicines for a limited time which was hearing. Was missing, according to the court, the requirement of the absoluteness.
April 7, 2010. Promulgated the bill on such failure. In the name of the peaceful conduct of the functions entrusted by law to the Prime Minister and Ministers shall be given to these charges to avoid the possibility of judicial summonses citing institutional commitments and that was enough self-certification of the same.
Law enter into force on the day following its publication in the Official Gazette.
of first glance, one on self-doubts.
The accused above, suffering from renal colic, was found in default even if his counsel had submitted in court a medical certificate attesting to the impossibility of moving from home on account of severe pain. The sufficiency of self ipso jure the mechanism to trigger an attestation of such failure and a consequent postponement of the hearing is a stretch in terms of the principle of equality. Least because the average citizen carrying a stronger burden of proof about the impossibility innocent emergence of the hearing and his request is subject to the discretion of a court examination. Vaglio, having regard to the newly formed law in question, seems to be limited, if not cleared. If the Presidency of the Council of Ministers - the text reads - stating that the cause is ongoing and linked to the performance of functions under this Act, the court refers to the process hearing after the period indicated. Each court can not be longer than six months. Now, the provision is clear: the President declared that there was a failure, correlating the performance of its functions (and here, the idea of \u200b\u200bcorrelation is very vague), and the judge, automatically opens the hearing. That the court does not to exceed six months in duration, then it is easily avoidable obstacle: after six months will be sufficient to reveal another obstacle and mechanically the hearing will be (re) postponed (I will excuse the alliteration). The law limits the duration of each reference, but not the number of referrals! The obstacle is easily avoidable, it was said. And without the need for complicated artifice: as we speak of commitment related to the performance of functions and top government officials carry out their tasks for a number of years, it is assumed that for the duration of the mandate it engages in activities related to office. Hence, until there is a strict interpretation of the requirement now in word, those belonging to the Council of Ministers will claim the cause for such failure, shall have the right to postpone until the termination of its mandate.
spoken, then, ongoing commitment. That defeats the requirement of current law, established by the legitimacy to make an exceptional application of the rules on such failure. Since the continuous case, it operates continuously for a certain period of time (which can run as we have seen, even several years), for which, at that moment, becomes the rule rather than exception. By what mechanism prevented canonized - postponement of the hearing.
These are just some of the concerns - all of the legal matrix: I wanted to abstain from any political assessment - that of engaging me, hot reading of the bill on the promulgation of such failure. We await the reaction of case law and doctrine, always keeping an eye on the impact that this measure will bring in the political world.
