Criminal law, False, half-crime, crime-end, self-certification, Court of Cassation, V Crim. Section, Judgment n. 2064 of 18/01/2018

Essential lines of the arguments of the Supreme Court of Cassation

Appeal against the order of 11/07/2017 of the LIBERTA LIBERTA di RIETI

BELIEVED IN FACT

1. By order of 11 / 7-2 / 8/2017 the Court of the Rieti Review has confirmed the preventive seizure of the licenses n …. and n … for rental with driver issued by the Municipality of …. ., respectively in favor of the suspects … …. and … .., issued by the judge for preliminary investigations at the Court of Rieti on 12/6/2017, rejecting the request for review proposed by the aforementioned suspects.

With regard to the two suspects, the crimes referred to in Articles 2 were initially charged, as a temporary offense. 483, 61 n.2, 48 and 480 cod.pen.

In particular …., Holder of the … …….. Cooperative, in turn owner of the license n …. for rental with driver (hereinafter, simply ncc) issued by the Municipality of …., Relative to car … was accused of having falsely attested, during the request for updating the license on 4/9/2014, the permanence of the requirements set forth in art. 10 of the Municipal Regulations n.c.c. because the room indicated as a remittance, enjoyed on free loan, was a rundown room in the countryside, with characteristics suitable for the storage of agricultural tools, and so to have misled the municipal manager in the renewal of the authorization on 8/10 / 2014, falsely attesting the existence of the necessary requirements.

Instead … .., holder of the license n …. n.c.c. issued by the City of ……, relatively to the car … …, was accused of having falsely attested at the time of application for the upgrade of the license on 18/6/2012 the permanence of the requirements of the art .10 of the Municipal Regulations ncc because the place indicated as remittance, enjoyed on free loan, was in fact unused, and so to have misled the municipal manager in the renewal of the authorization on 21/6/2012, falsely attesting the existence of the necessary requirements.

2. The defendants of the two suspects have filed an appeal … .. and … .., carrying out three reasons.

2.1. With the first plea the appellants complain of non-observance or erroneous application of the art.48 and 480 cod.pen. and of art.321, paragraph 2, cod.proc.pen. for the non-existence of the fumus commissi delicti.

They observe that the head of the provisional charge accused the suspects of two offenses, the first ex art.483 cod.pen., Instrumental to the commission of the second ex art.480 cod.pen., With the consequent aggravating of the teleological link.

Both the G.I.P. both the Court of Review had excluded the crime-vehicle because the suspects had not attested anything about the characteristics of the garage for car, if not to have the legitimate availability of a room for that purpose. The key element of the false attestation of the private to the public administration was therefore lost; it was therefore not possible to understand how the crime-end could persist, once deprived of the false attestation of the two suspects.

According to the appellants, there was a radical logical and legal irreconcilability between the exclusion of the offense and the configurability of the crime-end as per art.48 and 480 cod.pen. since the erroneous induction of the public official demanded a false attestation rendered by the private inducer. No alternative was therefore given: either the administrative act attested something more than what was declared by the private party and then any responsibility in this regard was the responsibility of the public official; or rather the administrative act confined itself to swearing and certifying exclusively what was declared by the applicants (hypothesis this concretely identified by the applicants), without taking a position on the suitability of the garage or on the use, and then there could be no false offense .

In particular, as regards the …., its garage was judged suitable but not used on the basis of a declaration made two years and eight months after the renewal request, so that it was impossible that the municipal authorization could attest a future fact as the subsequent concrete use by the licensee.

2.2. With the second reason the applicants complain about non-compliance or incorrect application of Article 8, paragraph 3, of Law 21 of 1992, Article 5 of the Lazio Region Law n.58 / 1993 and Article 10, paragraph 2, n.5 of the municipal regulation ncc n.31 / 2000 of … …

The art.10, comma 2, n.5 of the municipal regulation n.c.c. n.31 / 2000 of … .. provides that the remittance should be suitable to allow the shelter of the means and their ordinary maintenance, but no rule indicated the minimum characteristics of the room that ensure the suitability. In particular, no indication in this sense could be inferred from Article 8, paragraph 3, of Law 21 of 1992, nor from Article 5 of the Lazio Region Law n.58 / 1993, with which the municipal regulation could not put themselves in contrast by demanding more onerous requirements.

In any case, no rule was concerned with the use of the garage as a structural requirement of the same, as had been attributed to …

2.3. With the third plea the appellants complain about the non-observance of the art.125 cod.proc.pen. for the lack of motivation regarding the complaints articulated in the review.

The motivation of the order was purely apparent: the same Court had ruled out, reiterating the non-existence of the offense referred to in Article 488 cod.pen. that the suspects had declared that they had the continuing availability of “suitable remittance”, which is however impossible in the absence of a specific regulation defining the eligibility requirements, being able moreover to demand the objective suitability to host a motor vehicle, in terms of size or physical characteristics -structural, while the administrative authority had not taken any sanctions against private license holders.

In addition, the conditions of the two remittances were not known at the time of the fact that the alleged offenses occurred, respectively 7 months before the inspections, as for … .., and 2 years and 8 months before, as for …

The final argument put forward by the Court to reproach the suspects for not communicating to the City any event occurred on the loss of availability or suitability of the remittance, was patently illogical: the …. believed and continued to consider appropriate their remittance , while the … had nothing to communicate because he regularly used the shed.

CONSIDERED IN LAW

1. The first plea alleges failure to comply with or incorrect application of Articles 48 and 480 of the Code. and of art.321, paragraph 2, cod.proc.pen. for the non-existence of the fumus commissi delicti.

1.1. It is also true that the chief of blaming (however provisional) challenged the suspects two crimes, the first ex art.483 cod.pen. (ideological falsehood of the private in public), and the second, by induction, ex art.480 cod.pen. (ideological falsehood, by induction, of the public official in certificates and administrative authorizations) assuming also the aggravating factor of the teleological connection between the two crimes.

Both the G.I.P. both the Court of Review had excluded the configurability of the false ideology of private individuals in a public deed pursuant to art.483 cod.pen. because the suspects had not carried out self-certification activities and therefore not because they had not attested anything about the characteristics of the remittance in their legitimate availability.

1.2. Therefore, the appellants’ argument does not help to assume that the key element of the false attestation of the private to the public administration has thus disappeared, so that it was not possible to understand how the crime-end could persist, once deprived of the false attestation of the two suspects.

What has been excluded, with the offense referred to in art.483 cod.pen., Is not the existence of a false declaration made by individuals to the Public Administration and likely to mislead the public official, but only a true and self-certification made by the private.

1.3. In fact, according to the jurisprudence of this Court, the crime of ideological falsehood committed by a private individual in a public deed (Article 483 of the penal code) can be configured only in cases where a specific legal rule attributes the function to prove the facts attested by the private to the public official, thus linking the probative effectiveness of the act itself to the duty of the declarant to affirm the truth. (Section U, No. 28 of 15/12/1999, Rv. 215413).

This principle has been taken up and confirmed by numerous compliant pronunciations of this Section (Section 5, No. 39215 of 04/06/2015, … and more, Rv 264841, Section 5, No. 18279 of 02/04 / 2014, RV 259883, Section 5, No. 5365 of 04/12/2007 – Dept. of 2008, RV 239110, Section 5, No. 17363 of 12/02/2003, RV 224750).

1.4. According to all the jurisprudence of legitimacy for the configuration of the case of falsehood due to the induction of the public official, a false declaration by the private individual is necessary to mislead the official (Section 5, No. 37971 of 20/06/2017, RV 270915, Section 5, No. 37944 of 31/05/2017, Rv 270762, Section 5, No. 48342 of 07/10/2015, Rv 265480).

Furthermore, again on the subject of forgery in a public deed for induction, if the public official adopts a provision with descriptive content or device, acknowledging in a premise, even implicitly, the existence of the conditions required for its adoption, deduced from deeds or attestations not true products from the private, the provision of the public official is ideologically false as adopted on the basis of a non-existent assumption and false does not answer the pu, misled, but the person who led him into error. (Section 5, No. 35006 of 17/06/2015, Rv 265019, Section 5, No. 24301 of 19/03/2015, Rv. 263909).

1.5. Therefore, the assumption of the applicants according to which there was a radical logical and legal irreconcilability between the exclusion of the crime pursuant to art. and the configurability of the offense pursuant to Article 48 and Article 480 of the Code: the misleading of the public official requires a false attestation or declaration made by the private inducer, but not a self-certification, already in itself a fidefaciente.

1.6. Returning to the alternative traced by the applicants: the administrative act did not attest to anything more than what was declared by the private to the public official, but merely to assay and certify only what was declared by the applicants (as assumed by the applicants themselves), but such however, the declaration also invested the theme of the suitability of the garage.

2. With the second reason the applicants complain about non-compliance or incorrect application of Article 8, paragraph 3, of Law 21 of 1992, Article 5 of the Lazio Region Law n.58 / 1993 and Article 10, paragraph 2, n.5 of the municipal regulation ncc n.31 / 2000 of ……

Their arguments, however, deserving of attention from an administrative point of view, do not capture the sign here.

2.1. The two applicants … .. and …. have declared in their application for authorization to be in possession of the requirement of Article 10, paragraph 2, no. 5, of the municipal regulation no. n.31 / 2000 of …, ie to have the availability of «suitable remittances to allow the admission of the means and their ordinary maintenance».

In criminal proceedings and with reference to the objective fact of the falsity of the statement disputed to the suspects, it does not have any relevance, even if subsistent, the alleged illegitimacy of the municipal regulation (for real assumed only as demanding a stricter requirement than that required by law state and regional law on the subject of ncc); in fact, to grant everything, the two applicants should have challenged the regulation and the consequential acts before the administrative judge and did not already prove the false in the request to circumvent the censored municipal law.

2.2. The applicants observe that Article 10 of the municipal regulation provides that the remittance should be suitable to allow the shelter of the means and their ordinary maintenance, but stress that no provision indicated the minimum characteristics of the room that guarantees its suitability.

In another argumentative passage, the applicants admit that it could at most have demanded from their statements the affirmation of the objective suitability of remittances to house a motor vehicle, in terms of size or physical-structural characteristics.

2.3. Now, as regards the declaration of the suspect … .., it appears that he has declared to have a remittance suitable to allow the shelter of the means and the ordinary maintenance (this is equivalent to the reference by relationem to the aforementioned art. municipal regulation ncc); this statement was not true, either because the room he indicated had the characteristics of a storage of agricultural tools (and not vehicles) and was not objectively suitable for hosting and servicing a large vehicle, which also implied a significant dimensional underestimation. of the room with respect to the threshold of suitability.

It should also be noted that in the matter of real precautionary measures, the judge, who is precluded from ascertaining the merits of the prosecution and the union on the concrete merits of the prosecution, must check, not merely on paper, on the factual basis in the individual case. concrete, according to the parameter of the hypothesis of the alleged offense, with reference also to the possible defect of the subjective element, provided that this appears of immediate relevance ictu ocu / i (Section 2, No. 18331 of 22/04/2016, Rv. 266896, Section 6, No. 16153 of 06/02/2014, Rv. 259337).

2.4. The situation is different with regard to … .. because it is not charged with falsely attesting the suitability of the garage in its availability, but rather not to have actually used it.

Which, evidently, has nothing to do with the tenor of his declaration, which concerns different facts, which escape the assumptions, both explicit and implicit, of the authorization provision.

In fact, it is correct the claim of the applicants according to which no rule was concerned with the use of the garage as a structural requirement of the same, as had been attributed to the …..

Moreover, his garage had been judged suitable but not used on the basis of a declaration made two years and eight months after the renewal request: certainly it was impossible that the municipal authorization (like the request for renewal of the interested party) could attest to a future fact as the subsequent concrete use by the licensee.

In other words, the 2012 declaration of … was considered false and concretely appropriate to mislead the public administration on the basis of use (or rather the “non-use” later) argued by a witness statement and the discovery on site of a large agricultural tractor in place of the car at time of the inspection.

Thus reasoning, the subsequent failure to comply with the obligations resulting from the granting of administrative authorization is clearly confused with the falsity of the declarations made at the time of the request for release.

This justifies the acceptance of the appeal regarding the position of … ..

3. With the third plea the appellants complain about the non-observance of the art.125 cod.proc.pen. for the lack of motivation regarding the complaints articulated in the review.

These claims, under the alleged guilty of a violation of the law for lack of motivation actually deduce the motivational vices of the contested provision, that is a censorship not allowed by the art.325 cod.proc.pen. in the appeal of legitimacy of the provision concerning real precautionary measures.

In fact, in the matter of appeal against the real protective measures, they constitute a violation of the law legitimizing the appeal by cassation pursuant to art. 325, paragraph 1, cod. proc. pen. both the errores in iudicando or in progress, and those vices of the motivation so radical as to make the argumentative apparatus placed in support of the provision completely missing or lacking the minimum requirements of consistency, completeness and reasonableness and therefore unsuitable to make the itinerary comprehensible logical followed by the judge. (Section 3, No. 4919 of 14/07/2016 – Dep. 2017, Rv. 269296); therefore, it is a violation of the law deductible through an appeal to the Court of Cassation only the inexistence or the mere appearance of the motivation, but not also its manifest illogicality, pursuant to art. 606, first paragraph, letter e), cod. proc. pen. (Section 2, No. 5807 of 18/01/2017, Rv 269119, Section 5, No. 35532 of 25/06/2010, Rv 248129, Section 6, No. 7472 of 21/01/2009 , PM in proc … and others, Rv 242916, Section U, No. 25932 of 29/05/2008, Rv. 239692 ,. SU, 29 May 2008 No 25933, not maximized on this point).

4. The appeal of …. must therefore be rejected, with a sentence to pay the costs of the proceedings, unlike that of … .. that deserves acceptance.

Cancel without ruling the contested provision against … …

Rejects the appeal of … …., which condemns the payment of court costs.

Source Supreme Court of Cassation