Criminal law, construction, urban planning, Court of Cassation, III Criminal Section, Judgment n. 170 of 08/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the ordinance of 08/08/2017 of the TRIB. FREEDOM of FLORENCE

BELIEVED IN FACT

1. The Court of Florence, by order dated 8/8/2017 canceled the decree of preventive seizure issued by the judge for preliminary investigations of the same court on 4/7/2017, concerning a part of the portico located on the terrace panoramic … ……. of Florence, with respect to which the crime referred to in art. 44, lett. c) d.RR. 380/01, because they were carried out, in essential change from the building permit, works consisting in enlarging the covered loggia, with modification of the shape of the building limited to the last floor and with an area increase of 20.10 square meters.

Against this ruling, he appealed to the Court of Florence the Supreme Court at the Court of Florence, deducting the following reasons set out within the limits strictly necessary for the reasoning, pursuant to art. 173 available att. cod. proc. pen.

2. With a single ground of appeal complains the violation of the law, observing how the seizure would have been justified by the need to prevent the offender benefiting from the free availability of the asset, being an extension of the area … … of … .. and that the alleged modesty of the intervention by the Court would be contestable and, in any case, irrelevant.

Therefore, he insists on accepting the appeal.

CONSIDERED IN LAW

1. The appeal is unfounded.

2. It must first be noted that the contested provision excluded the existence of the periculum in mora, while it does not call into question the existence of the crime of the crime, not being at issue, at least for what emerges from the appeal and the order, only acts to which this Court has access to, the actual enlargement of the loggia with surface increase.

The judges of the review have correctly applied the jurisprudence of this Court, contrary to what was claimed by the Recurring Public Prosecutor.

With reference to the preventive seizure of completed unauthorized buildings, the issue has been the subject of extensive debate on the part of the jurisprudence of legitimacy and the conflict, which arose on the correct interpretation of article 321, cod. proc. Pen., was definitively resolved by the Joint Sections with the decision referred to in the contested provision (Section U, No. 12878 of 29/1/2003, PMin proc. …, Rv. 223721) where, with fully shared arguments , the validity of the orientation that recognized its admissibility is recognized.

In the sentence a distinction is made between the damaging effect of the offense on the protected legal good, which remains in time but is common to all crimes, even instantaneous and the consequences, necessarily anti-juridical and hypothetical even to the consummation of the offense, which could derive from the free availability of the good.

As an example, the administrative violation sanctioned by art. 221 T.U. Sanitary laws resulting from the use of a building in the absence of certification of habitability or viability, but also draws attention to the injury of interest in supervision and control of the territory through appropriate public governance of the uses and transformations of the same and ‘aggravation of the urban load resulting from the use of the abusive product.

However, the judge is required to carefully evaluate the existence of the requirements of concreteness and relevance of the danger arising from the free availability of the property, ascertaining “… the actual compromise of the interests pertaining to the territory and any other data useful to establish to what extent the enjoyment and the current availability of the thing by the suspect or third parties may imply an actual further damage to the protected legal good, or if the current availability of the product constitutes a neutral element in terms of offensiveness “.

By way of example, with specific reference to the impact on the urban load, on which some clarifications are provided, it should be added that the implementation of this profile must be carried out considering the actual size and intensity of the feared injury, taking into situation existing at the time the measure was adopted.

In the wake of these shared observations, other subsequent decisions have further delineated the terms of the question, drawing attention to the fact that the danger of the detrimental effects of the crime, including the urban load, must present the requirement of concreteness, in order to subsistence of which must be provided by the appropriate judge motivation (Section 3, No. 4745 of 12/12/2007 (Dep.2008), Rv. 23878301, Section 6, No. 21734 dated 4/2/2008, PM in Proc. … and more, Rv. 240984, Section 2, No. 17170 of 23/4/2010, Rv 246854, Section 3, No. 6599 of 24/11/2011 (as of 2012), Rv 252016, Section 3, No. 52051 of 20/10/2016, Rv. 268812).

It has been further specified that the impact of a building intervention on the urban load must be considered with reference to the structural and functional aspect of the work and is also detectable in the case of a concrete alteration of the original substantial consistency of an artefact in relation to the volumetric , to the destination or to the actual utilization such as to bring about a change in the set of planning needs assessed during the planning with particular reference to the standards set by the DM 1444 \ 68 (Section 3, No. 36104 of 22/9/2011, P.M. in Proc. …, Rv. 251251).

3. That said, the Board observes that, in light of the aforementioned principles, fully shared and to reiterate also on this occasion, the Court has not considered the existence of further and significant detrimental effects unrelated to the crime in itself considered, making an assessment that is compliant with the law according to the interpretation provided by the jurisprudence of this Court, unlike what is claimed in the appeal.

It should also be noted that the description of the intervention as “modest”, expressly criticized in the appeal, is clearly instrumental to the assessment of the periculum and not to exclude the abstract criminal relevance of the conduct. In other words, the tenor of the reasoning shows that the review judges intended to make the most of the non-significant size of the enlargement, with respect to the overall floor area of ​​the building, as symptomatic of a substantially unchanged situation, in terms of impact of the urban load and of the other consequences relevant to the seizure, compared to the pre-existing one.

Source Supreme Court of Cassation