Criminal law, jurisprudential contrast, exclusively objective or subjective nature, question of right remitted to the United Sections: “If, for the purposes of configuring the teleological connection provided for by article 12, paragraph 1, letter c), code proc. pen., whether or not the identity between the perpetrators-offender and those of the crime-end is required “, Court of Cassation, Sec. Crim. A., Judgment n. 53390 of 26/10/2017

The following principle of law is set out:

The United Sections consider the solution proposed by the referring Section to be shareable, in line with the currently minor jurisprudential case, according to which, in the case of teleological connection as per art. 12, paragraph 1, lett. c), cod. proc. pen., the identity between the authors of the crime-half and those of the crime-end is not required.

Essential lines of the arguments of the Supreme Court of Cassation

on the conflict of jurisdiction raised by the judge of the preliminary hearing of the Court of Bari against the judge of the preliminary hearing of the Court of Taranto

BELIEVED IN FACT

1. By order of January 27, 2017, the judge of the preliminary hearing of the Court of Bari raised a conflict of jurisdiction against the judge of the preliminary hearing of the Court of Taranto, which, with ruling of May 7, 2015, declared the incompetence by territory of the Court of Taranto, ordering the transmission of the documents to the Public Prosecutor at the Court of Bari, in relation to a series of crimes.

2. These are the crimes of false ideological public official induction ……. (head a), scam … (head b), abuse of office ….. (head c), false ideological of the public official in a public deed … … (boss d), false ideological of the private in public act, …… (head e), personal aiding ……. (chiefs f, i and I ); crimes committed in Taranto those sub a), b) and e), in Bari those sub c), d), f), i) and I).

3. The trial event begins with the presentation of …. which reported irregularities, aimed at favoring ….., in the procedures for the assignment of tasks … …… of Bari, seat of Taranto, place, that of ……, to which she too aspired.

4. The negative conflict of jurisdiction is determined by the fact that the Court of Taranto had “advanced” to 9 September 2009 the consumption of the first offense, date in which, in Bari, was held the session of ….., in which had been expressed opinion of the adequacy of the securities held by … …., an opinion which was then followed by the ……., seat of Taranto, thus misled, when it had conferred to ….. • the appointment of …. with the two resolutions of 20 September 2009 and 9 June 2010 respectively, as set out in point a).

5. The complainant Judge, on the other hand – evaluating the fact that in the contestation under a) there is no reference to the meeting of ……., while they are indicated, as taxable persons of the continuing crime, committed on 29 September 2009 and on 9 June 2010 in Taranto, the members of the ……, seat of Taranto, and considering that the competence must be determined on the basis of the prosecution of the accusation, provided that it does not contain any gross errors perceivable ictu ocull – considered competent the Taranto judicial authority on the importance that the crimes under c) and d), related to the assignment of the post of … and salaries in Bari, were teleologically connected to that sub a). Which determined, even in the case of diversity of the defendants of the various crimes, the connection pursuant to art. 12, paragraph 1, lett. c), cod. proc. pen., to be understood as objective following the reformulation of the law by the d.l. 20 November 1991, n. 367, converted, with modifications, from the law 20 January 1992, n. 8 (“if the crimes for which one proceeds were committed to perform or to conceal others”, while the previous text read “if a person is charged with more crimes, when some have been committed to perform or hide the others »), since the need for the subjective link between the crimes, ie their commission by the same subjects, has become void.

6. The order also recalled that previously the Public Prosecutor at the Court of Taranto, following the presentation of … … of …., had forwarded the documents to that of Bari on the relief that the first act in which the adequacy of the qualifications was falsely attested … it was the report dated 9 September 2009 of the report, which constituted the prerequisite for conferring the offices. But, at the request of the Father, the judge for preliminary investigations in Bari had ordered the filing of the proceeding for the offense referred to in Articles. 110 and 479 cod. pen. and forwarded the documents to Taranto. The Public Prosecutor of Taranto then submitted a request for indictment and the judge of the preliminary hearing had declared himself incompetent with the sentence above.

7. The First Criminal Section of this Court, by order dated July 17, 2017, filed July 21, 2017, premise the erroneous in terms of both substantive and procedural the thesis, supported by the judge of the preliminary hearing of the Court of Taranto, ” advance consumption “of the offense sub a), on the importance that the final act of the administrative procedure is of materially detrimental scope, and considering the persistent jurisprudential contrast on the exclusively objective or subjective subject (in the sense of the full subjective coincidence between the authors of the half crime and those of the fine crime) of the link that must exist between several crimes for the purpose of assessing the teleological connection (in support of the first orientation cited Section 3, No. 12838 of 16/01/2013, Erhan, Rv 257164, of the second Section 1, No. 5970 of 02/03/2016, Dept. 2017, Rv. 269181), has referred the matter to the United Sections, however, showing that it shares the decision of the Bari judge about the competence of the Taranto one, in compliance with the orientation that considers the objective link between the crimes to be sufficient due to the above mentioned legislative amendment.

8. With regard to the existence of the connection between the crimes ascribed to the defendants, the referring Section noted that among the heads a) and b), also characterized by the identity of the authors, there is at least the hypothesis as per art. 12, paragraph 1, lett. b), cod. proc. pen .. Between the offense referred to in chapter a) and the related offenses under c), d) and e) (those sub ced committed in Bari) the First Section, beyond the dispute in the first part of the aggravating circumstance teleological link with respect to chapters b) and c), since it was also committed to carry out these crimes, it considered the prospect of a teleological connection, relevant also from the point of view of connection, between the capo a) committed in Taranto, and the head c), committed in Bari, ascribed to partially different subjects (… .. is called to answer by both, in competition with different people), since … .. would have in concrete made use of the conferment of one of the two offices … .. referred to in chapter a) in the context of the announcement for the post of …. referred to in chapter c) (as shown in the minutes 17 of February 2010 concerning the selection procedure).

This regardless of the existence of reasons for connection with the additional offenses of personal aid provided for in chapters f), i) and I), not connected with the others either from the finalist point of view or under that of concealment.

9. By a decree dated July 24, 2017, the First President assigned the appeal to the Joint Sections, setting the current Chamber hearing for discussion.

10. With a statement filed on October 6, 2017, the Advocate General concluded – also highlighting the reality data represented by the “criminal sequences” of economic and organized crime – in the sense of the non-necessity of the subjective coincidence between the author of the crime- means and author of the crime-end for the recurrence of the connection hypothesis as per art. 12, lett. c), cod. proc. pen., and therefore for the determination of jurisdiction for the territory pursuant to art. 16 same code, considering sufficient the objective relationship between crime-end and half-crime.

11. The lawyer …, accused of personal aid, with a statement filed on October 9, 2017, noted that, regardless of the solution adopted in relation to the question, there would be no connection, if not, at most, of a probative nature, between the crime of referred to in Chapter (f), ascribed to …, and those referred to in (a) and (b).

12. The lawyer … .. has sent defensive memory dated October 19, 2017 with which it expresses the sharing of the conclusions of the General Prosecutor’s Office and, as regards the offending crimes in relation to which, moreover, the …. a civil party is not constituted, he points out the recurrence of a hypothesis of evident evidentiary connection.

CONSIDERED IN LAW

1. The question of law for which the appeal has been referred to the United Sections can be stated as follows: “If, for the purposes of configuring the teleological connection required by Article 12, paragraph 1, letter c), of the proc pen., whether or not the identity between the authors of the crime-half and those of the crime-end is required “.

2. The United Sections consider the solution proposed by the referring Section to be shareable, in line with the currently minor jurisprudential case, according to which, in the case of teleological connection as per art. 12, paragraph 1, lett. c), cod. proc. pen., the identity between the authors of the crime-half and those of the crime-end is not required.

3. It is useful in this regard to recall that, in its original formulation, art. 12, paragraph 1, lett. c), cod. proc. pen., established that there is a connection of proceedings “if a person is charged with multiple crimes, when some have been committed to perform or conceal others”: formulation whose incipit (“if a person”) did not give rise to doubts on the fact that the teleological nexus was suitable for determining the transfer of jurisdiction by subject or by territory, in the terms set out in articles 15 and 16 cod. proc. pen., only with regard to crimes ascribed to the same or to the same persons.

4. The textual data has been profoundly innovated by the d.l. 20 November 1991, n. 367 (“Coordination of investigations in proceedings for organized crime”), converted, with amendments, by the law of 20 January 1992, n. 8, whose art. 1 has suppressed the explicit reference to the identity of the author of the facts in connection, replacing it with an impersonal phrase (“if the crimes for which one proceeds”), in addition to widening the spectrum of the relevant links between crimes, adding the so-called connection occasional (offenses committed on the occasion of others) and further finalistic profiles (the purpose of obtaining, also for others, profit, price, product or impunity compared to other crimes), thus conforming the normative dictate, in full, to that of art. 45 n. 2 of the previous code, already subject to drastic pruning, inspired by the favor separationis, by the legislator delegated when issuing the new code of criminal procedure. Norma, that referred to in art. 45 n. 2 of the previous code, which has been interpreted, in the part relating to the teleological nexus, in the sense of the need for the objective relationship of instrumentality between the crimes (see Section 1, No. 1373 of 29/06/1983, Rv. 159824 : with regard to the identification of jurisdiction by territory for related crimes, the simple analogy between different crimes, if it does not result in the actual identity of criminal offenses or in objectively, probative or teleologicannente crimes, does not result in the transfer of jurisdiction).

5. The subsequent amendment of the law in question with law March 1, 2001, n. 63 (“Amendments to the Penal Code and to the Code of Criminal Procedure concerning the formation and evaluation of the trial in implementation of the constitutional law for the reform of Article 111 of the Constitution”) has expunged, through art. 1, marking in this respect a return to the first formulation of art. 12 lett. c), the reference to the occasional connection and the finalistic profiles introduced in 1991, but did not reinstate the formula “if a person is charged with multiple crimes, when some have been committed to execute or conceal the others”, keeping that impersonal ” if some crimes for which one proceeds have been committed to perform or to hide others “. The current formulation of the art. 12 lett. c), the result of the first amendment, inspired by the overwhelming need to expand the connection cases, has therefore survived the second unscathed, although remaining in a restrictive sense the spectrum of connection cases – in contrast to the major openings of the first change -, has not restored the formula indicating the need for crimes to be committed by the same or by the same persons.

6. On this textual data, a first reflection must take place in relation to the devolved question. The hermeneutic principle of not attributing to the law any other meaning than that made clear by the proper meaning of the words according to the connection of them (Article 12, first paragraph, of the Provisions on the law in general), can not be considered, in this case, as a priority , above all because the current formulation of the norm is the result of a precise lexical modification – to be considered not due to chance – in the choice of an impersonal expression in substitution of a precedent which required ex professo the coincidence between the author – or the authors – of crimes, respectively, half and end.

7. The objective reference to the crimes, instead of the subjective one to their authors, to identify the teleological constraint, expresses a parameter to be interpreted as a univocal signal of change of the voluntas legis, in line with the general objective of the legislator of time, resulting also from the Report to the bill of conversion of the decree 367 of 1991 on the “Coordination of investigations in proceedings for organized crime”, to extend the perimeter of the institution of the connection ensuring the unitary examination, in particular, of the phenomena of organized crime (occasio legis), penalty, in otherwise, the substantial stagnation in the investigations “if not even deplorable disagreements”, obviating the excess of delegation, in minus, in which the legislator who had drafted the current code of criminal procedure, consisting of the considerable, and not justified, had incurred , reduction of connection cases.

8. Nor should it be overlooked that, by means of the 1991/1992 reform, letter b) of paragraph 1 of the art. 12. In fact the previous formulation of the art. 12 lett. b) was “if a person is charged with multiple crimes committed with a single action or omission or with multiple actions or omissions in units of time and place”, while that introduced by the aforementioned reform states “if a person is charged with multiple crimes” committed with a single action or omission or with multiple actions or executive omissions of the same criminal design “. As a result of the coexistence of the letters b) and c) in the text prior to 1991/1992, the prediction of the subjective identity of the perpetrators in both cases could be considered due to the fact that, while in letter b) the only cases of continuation characterized from space-time unity of the actions or omissions, the letter e) provided a further hypothesis of possible continuation, that of the commission of one or more crimes in order to commit others (normally being the teleological nexus also symptom of identity of the criminal design: 1, No. 3442 of 06/03/1996, Rv. 204326), while the absorption in lett. b) as a result of the reform, of all the continuation hypotheses, can be interpreted in the sense of the voluntas legis of the exclusion from the hypothesis of the final link of the subjective requirement of the identity of the authors. To differently consider, in fact, the forecast referred to in lett. c) would risk to duplicate, even if only in part, that of the letter b), since the final link is normally a symptom of unique criminal planning.

9. Given the above, the appeal does not seem justified, rather than the literal interpretation of art. 12, paragraph 1, lett. c), cod. proc. pen., to the logical-systematic hermeneutical option, shared by the majority orientation, which would still impose, in spite of the changed regulatory amendment, the need to configure the connection ex art. 12 lett. c), of the coincidence of the perpetrators.

10. The analysis of the decisions of legitimacy that support that address reveals that they take little account of the legislative change of 1991/1992, substantially levering, in repetitive terms, with reciprocal calls and with a sort of self-referentiality – in a word, tralatically – on two topics: namely, the first, that the unity of the volitional process between the crime-means and the crime-end, considered a logical presupposition of the teleological connection, would be configurable only if the crimes were committed by the same subjects ; the second, in a certain sense reinforcing the previous one, that the interest of a single defendant in the unitary treatment of crimes connected with the teleological constraint could not prejudice that of the co-accused (or the co-defendants) not to be removed from the natural judge according to the ordinary rules of jurisdiction.

11. In this sense, among the many, Sect. 1, n. 3385 of 09/03/1995, Rv. 200701; Sec. 3, n. 2731 of the 26/11/1999, Rv. 215,762; Sec. 1, n. 42883 of 23/10/2002, Rv. 222800; Sec. 6, n. 13619 of 29/01/2003, Rv. 224,146; Sec. 1, n. 19537 of 12/03/2003, Rv. 224389; Sec. 4, n. 27457 of 10/03/2009, Rv. 244,516; Sec. 1, n. 5970 of 02/03/2016, Dep. 2017, Rv. 269,181.

The latter and more recent decision, not hiding that another jurisprudential address identifies an objective relationship between the conduct connected by the purpose of performing or concealing (Section 5, No. 10041 of 13/06/1998, Rv. 211391 , Section 6, No. 37014 of 23/09/2010, Rv 248746, Section 3 No. 12838 of 16/01/2013, RV 257164, Section 4, No. 7350 of 11/07/2014, non mass.), nevertheless decided to reaffirm a firm adherence to the “prevailing and at least twenty years” interpretative line, considered almost a living law. He then reaffirmed, in accordance with this line, that, despite the change in the literal data – with which it does not substantially compare – it is an indispensable condition for the configurability of the teleological connection, and, therefore, for the production of its typical effects on the plan. of the displacement of competence, the identity between the authors of the crime-means and the authors of the crime-end, being the logical assumption of the teleological connection the unity of the volitional process, while, in case of heterogeneity of authors, only a hypothesis occurs of connection of probative nature, unsuitable to produce displacement of competence, all the more – further argument on the basis of the traditional orientation – because the interest of an accused in the unitary treatment of the crimes enforced by teleological constraints can not prejudice that of the co-defendant (or co-defendants) not to be subtracted from the natural judge according to the ordinary rules of jurisdiction.

12. This ruling, and above all the precedents along the same lines, do not consider adequately, thus condemning to the total irrelevance the change made to the original text of art. 12, lett. c), cod. proc. pen. from the 1991/1992 reform, the normative evolution of the institute and its epilogue that identifies, in the current configuration of it, a link between the crimes of essentially objective nature, regardless of the subjective identity of the perpetrators of the related crimes. Nor do they take into account the substantial criminal aspects of the teleological connection, which converge in indicating the criterion for the recurrence of this hypothesis, the only finalistic link between the crimes. Indeed, as for the aggravating circumstance as per art. 61, number 2, cod. pen., whose text contains, among others, even the hypothesis of commission of a crime to execute or conceal another, the configurability of the teleological connection in the case of different authors has been recognized, as mentioned in the Court of Justice’s reasoning, sent. n. 21 of 2013, both in the doctrinal and the jurisprudential (in this sense Section 5, No. 3479 of 14/02/1984, Rv. 163727).

13. Moreover, the reference to the unity of the volitional process by the traditional orientation implies the extension to the letter. c) of the art. 12 cod. proc. pen. – to be considered not permitted as it is normally an exception to the rules on jurisdiction, therefore strictly interpreted – a subjective parameter specific to letters a) (competition of persons in the crime) and b) (formal competition and continuation) of the same rule, which require the coincidence of the perpetrators, without taking into account that these last connection hypotheses may include, in the case of both parties (contest of persons in continuous crime), also the commission by the same persons of more crime and more crimes-end, if expressive, as almost always happens, of a single project, making the prediction of the connection sub c) substantially superfluous, if understood in the sense that it presupposes, in turn, the identity of the perpetrators.

14. In this regard it is worth remembering that a consolidated orientation of legitimacy holds that the institution of continuation is not incompatible with the aggravating circumstance set forth in art. 61, n.2, cod. pen., on the importance that the continuation, as an instrument balancing the penalty, acts on the level of tracing several crimes to a common criminal program, while the aggravating teleological nexus, connoted by the instrumentality of a crime compared to another and aimed at ‘aggravation of the penalty as an expression of greater danger of the perpetrator, can fall, despite the different function of the two institutions, in the criminal program developed by a single agent or several competitors in the crime (Section 2, No. 46638 of 09/11 / 2012, RV 253901, Section 2, No. 48317 of 17/11/2004, Rv 230427, Section 1, No. 46270 of 03/11/2004, Rv 230188, Section 1, No. 3442 of 06/03/1996, Rv 204326, Section 5, No. 10508 of 27/09/1995, Rv. 202499).

15. Ultimately, the formulation of the letter c) of the art. 12 cod. proc. pen, moves, and focuses attention, unlike the two preceding letters, essentially on the objective link between two or more crimes, without requiring that the author – or the authors – of the instrumental one to the other or to the others must – or must – necessarily take part in the latter, which may be committed by third parties. The accuracy of this conclusion is moreover supported by the consideration that the case of an instrumental connection for concealment, which represents the second connection hypothesis as per letter. c) of the law in question, united in the first by the only debut (“if the crimes for which it proceeds”), clearly expresses the possibility that the author of the second offense, inspired by the purpose of concealment of the previous one, is different the author of the first – well being the crime aimed at the concealment of a crime already committed to be carried out, for the most varied reasons, by a different person -, thus resulting in the unity of the volitional process completely foreign, or anyway merely possible , to this case of connection between offenses.

16. The hermeneutical option, shared by the majority orientation, is not otherwise imposed, or justified, not even by respect for the principle of a natural judge pre-established by law, which, according to that guideline, would be infringed if the perpetrators are less serious or, in case of equal gravity, subsequent to the first, were attracted in the orbit of the jurisdiction of the judge, respectively, of the most serious or of the first offense, for the reason that the interest of an accused in the unitary treatment of proceedings for crimes committed continuously, or connected by teleology, could not jeopardize that of the co-defendant (or the co-defendants) not to be subtracted from the natural judge according to the ordinary rules of jurisdiction.

This prospect sees the adherence to the traditional processualpenalistic equation “natural judge = forum commissi delicti”, neglecting that the constitutionally protected value (among other things, in the silence of Article 25 of the Constitution on the necessity of the allocation of the trial in the place in to which the crime was committed) is, like the constitutional jurisprudence and legitimacy, that of the impartiality of the judge, assured by its pre-establishment with respect to the controversial affair, on the basis of general criteria, which, within the limits of non-arbitrariness and reasonableness, they belong to legislative discretion; while other needs, such as facilitating the gathering of evidence, reducing inconvenience to the parties and texts, ensuring effective social control, reaffirming justice in the place where it was violated, can well yield to values constitutionally guaranteed or to equal, if not greater, relevance requirements. The principle of the effectiveness of the jurisdiction guaranteed by the unity of the celebration of the process and therefore by the reasonable duration of it, and by the prevention of non-physiologically conflicting judgments, applies to all. In this regard, Corte Cost., N. 117 of 2012, n. 30 of 2011, n. 279 of 2009, n. 168 of 2006, n. 452 of 1997, n. 130 of 1995, n. 100 of 1984, n. 88 of 1962, all agree that the notion of a natural judge is not crystallized in the determination of a general jurisdiction, but is the result of the complex of the jurisdiction conferring jurisdiction, forming as a result of all the provisions of law, including those derogating from the rules Ordinances on the basis of criteria that reasonably evaluate the values ​​at stake, even of constitutional rank, and the disparate interests involved in the process.

17. It follows that the regulation of jurisdiction by connection, including the case of the objectively interpreted teleological link, in accordance with these criteria, does not conflict with the principle of a natural judge established by law as, although it derogates from the ordinary rules on jurisdiction by subject and by territory, it constitutes an original, autonomous, and generally predetermined criterion of competence, also among other things, anchored, as regards that of the territory, to the criterion of the / ocus commissi delicti of the most serious offense or, in case of the same seriousness, of the first offense (Section U, No. 27343 of 28/02/2013, Rv. 255345).

18. The Court of Justice judgment does not seem to be invokable in support of the majority thesis. n. 21 of 2013 which declared the inadmissibility of the question of constitutionality raised, with reference to articles 3 and 25 of the Constitution, of the combined provision of articles 12, paragraph 1, letter c), and 16 of the cod. proc. pen., in the part in which – in the same way as the interpretation accepted by the remitting judge – in the case of teleological connection, assigns the jurisdiction for all the related offenses and for all the defendants to the judge of the place of commission of the most serious offense, even when the latter are not called to answer all the defendants of the less serious crime.

The Court, in fact, premised the twenty-year adhesion of the jurisprudence of legitimacy to the majority thesis, but above all stigmatized the improper choice to raise the incident of constitutionality on the basis only of one of the possible interpretations of the law (that of the minority address), not however, it seems to have implied that the reading of art. 12 proposed by the referring court would be, contrary to the consolidated one, doubtful constitutionality, having, on the contrary, affirmed, with a significant obiter, the substantial groundlessness of the objections formulated by the referring court (“Regardless, however, real justification of the objections raised by the national court – those referred to Article 25 of the Constitution, if valid, would strictly impose the removal of the entire institute for the connection of proceedings, the one relating to Article 3 of the Constitution neglects the differential features between the figures compared, ie teleological connection and continuation – it is preliminary and conclusive to note that the operation described above implies an improper use of the incident of constitutionality “).

19. The objective interpretation of the finalistic link is, moreover, also the one that most closely matches, as observed by the Advocate General, the needs of the current phenomenal reality that presents, in the context of modern economic and administrative crime, as well as that organized – also expanding in these sectors – “criminal sequences” in which “tread crimes” and “spying crimes” are identified, as well as “tracing offenses”, linked by merely objective links, whose single treatment is the only one able to ensure the effectiveness of the jurisdiction.

20. It is nevertheless necessary to add that, to consider the teleological connection as per art. 12 lett. c), suitable to determine a shift in competence, must be identified, in practice, an effective final link between the crimes committed by different subjects, with consequent need to verify that those who have committed a crime have taken into account the objective finalization of its conduct (expressed by the preposition “for”, which grammatically introduces an end complement and which precedes the formula “execute or conceal others”) to the commission of another crime or to the concealment of a previous offense. The spy of this finalization can well be sought, but not only, in the contestation of the aggravating circumstance as per art. 61, n.2, cod. pen., in the hypothesis of connection superimposable to those in art. 12, lett. c), cod. proc. pen.

21. Lastly, it is worth pointing out that the address here shared does not involve risks of repercussions on the determination of jurisdiction as a result of subsequent events, instructors or decision-makers, with a different meaning compared to the data initially assessed for the purposes of setting the competence. In fact, in accordance with the orientation constantly expressed on the point by the jurisprudence of legitimacy, the competence, in general, therefore also that per connection, must be determined, according to the principle of perpetuatio iurisdictionis, with ex ante criterion, on the basis of the situation resulting from the subjective figures and objections indicated in the formulation of the indictment, within the time limits for the detection of the question, which are, as regards the jurisdiction for connection, those of the preliminary phases of the first instance judgment (Article 21, paragraph 3, Penal Proc.), and kept steady regardless of the subsequent procedural events, unfit to affect the already established competence (Section 4, No. 14699 of 12/12/2012, Dept. 2013, Rv. 255498, Section 6 , No. 33435 of 04/05/2006, Rv. 234347).

22. The following principle of law must therefore be set out:

“Without prejudice to the need to identify an effective finalistic link between the crimes, the identity of the authors is not required for the purposes of configuring the teleological connection envisaged by Article 12, paragraph 1, letter c), code proc. . ”

23. Coming to the present case, the negative conflict of competence – admissible in the rite, inasmuch as both ordinary judges simultaneously refuse to take cognizance of the same fact referred to them, thus giving rise to that standstill situation foreseen by art. 28 cod. proc. pen. -, should be resolved, in the same way as above, in the terms specified below.

The arguments underlying the declaration of incompetence of the Taranto judicial authorities can not be shared for the reasons indicated in the order with which the conflict was raised. It is not justified the anticipation, proposed by the Court of Taranto in order to root the competence of the Bari authority, the consummation of the first offense to September 9, 2009, date in which, in Bari, had held the session of … ….. of Bari, which had expressed an opinion of the adequacy of the securities held by ………..

Also to say nothing of the fact that for this false hypothesis, by virtue of which the Public Prosecutor at the Court of Taranto had sent the documents to the Public Prosecutor of Bari, filing was filed by the Judge for preliminary investigations by the Court of Bari , following that the documents had been returned to the Public Prosecutor of Taranto, it should be remembered that one of the essential rules in terms of criteria for determining jurisdiction is, for deep-rooted interpretative orientation, that jurisdiction should be attributed on the basis of what you “expect” and not what you “believe”, and then referring to the factual lines contained in the original crime, regardless of any assessment of merit in terms of its merits or the actual recognition of the original hypothesis of connection.

This is traditionally established (Section 1, No. 49627 of 17/11/2009, Rv 246033, Section 1, No. 11047 of 24/02/2010, Rv. 246782) and reiterated in recent times also in the civil, confirming the logical unity of the procedural law (Section U civ., No. 26937 of 02/12/2013, Rv. 628676). “This is because jurisdiction is a” measure of jurisdiction “from the initial moment of the proceeding and is therefore related to the intrinsic characteristics of the application, not to its merits” (thus, in motivation, Section 1, No. 52541 of 20/06/06 2014, nn, Rv. 262143).

24. Therefore, having jurisdiction for the territory in the case of related crimes to be determined having regard to the objection formulated by the public prosecutor, unless the same does not contain significant macroscopic and immediately perceptible errors (Section 1, No. 11047 of 2010, Rv. 246782, cit.), Which can not in this case be affirmed on the sole basis of the existence of the previous opinion expressed by the Bari lawyer, in relation to which no offense is contested, the jurisdiction for connection can not be identified, as the charges indicated in the formulation of the indictment, on the basis of the challenge of the offense a) committed in Taranto, which constitutes, according to the accusatory prospectus offered to this Court, the offense committed first and of equal gravity compared to others. This crime attracts in the orbit of jurisdiction for connection of the court of Taranto – given that the offenses under b) and e) are challenged as committed in Taranto -, the crimes sub c) e), related to the assignment of the post of ….., made in Bari, but connected as a crime-end to that referred to in chapter a), and because the latter is challenged as aggravated pursuant to art. 61, first paragraph, n. 2, cod. pen. in relation to those sub b) and c), and because, as per the order of remission, the conferment of the two offices of ….. referred to in chapter a) is actually used for the assignment of the post of … , thus configuring the head a) as a half crime with respect to the crimes end sub c) and d).

25. On the other hand, there are no reasons of connection, relevant for the purpose of the transfer of jurisdiction by territory, as regards the three episodes of aiding (heads f, i, I), challenged to persons other than those referred to in previous which remains rooted in the territorial jurisdiction of the Court of Bari, as committed to Altamura.

In fact, the purpose of impunity, provided for in the hypothesis of aggravation of the crime pursuant to art. 61 n 2 cod. pen. (aggravating disputed in the heads f, i, I) points out only for the purposes of connection of investigations pursuant to art. 371, paragraph 2, lett. b), cod. proc. pen. and no longer also (following the 2001 reform of Article 12, letter c)) for the purpose of the teleological connection relevant to the jurisdiction per territory determined by the connection (Section 6, No. 37014 of 23/09/2010 , Rv 248746, Section 1, No. 25723 of 20/05/2008, Rv 240462, Section 1, No. 19066 of 20/04/2004, Rv 228654, Section 1, No. 39896 of 18 / 07/2017, not mass.).

Declares the competence of the Court of Taranto for the crimes referred to in Chapters A), B), C), D) E). Declares the jurisdiction of the Court of Bari for the crimes referred to in F), I), L). It disposes to forward the documents to the competent courts respectively.

Source Supreme Court of Cassation