Who is the offended person and what rights and rights are recognized by our penal system
The person offended by the crime is the holder of the legal asset protected by the criminal law violated seguito following the commission of a crime. SoggettoThis subject should not be confused with the injured party: the latter, in fact,? who suffers the damage resulting from the crime.
The distinction is important because if, as a rule, these two figures coincide, there are also cases in which it is not: think, for example, of murder, in which the person offended by the crime is the victim while the injured the offenders are his relatives.
The criminal code dedicates articles 120 et seq. To the person offended by the crime, while the code of criminal procedure articles 90 and following.
The penal code, in particular, does not give a definition of a person offended by the crime but focuses on it the discipline of the right to sue.
The offended person is in fact assigned the right to sue in all cases where for the crime he does not have to proceed ex officio or upon request or request, with the specification that if the offended persons are more than one the offense is punishable even if the lawsuit is proposed by only one of them.
In the event that the offended person is less than fourteen years of age or forbidden because mentally ill, his right to file a complaint may be exercised by the parent or guardian. If there is no representative or if the person exercising it is in conflict of interest with the injured party, the right to sue is exercised by a special administrator.
Instead, offended persons who are minors but have reached the age of fourteen or are incapacitated have the opportunity to exercise the right to sue. The right can also be exercised by the parent, guardian or trustee (even in the presence of a contrary declaration of will, expressed or tacit, of the minor or the disabled).
By virtue of the provisions of Article 90 of the Criminal Procedure Code, the person offended by the offense, in addition to exercising all the rights and powers that are expressly recognized by the law, can, in any state and degree of the proceeding, present statements? and, with the exception of the cassation judgment, indicate evidence, all of which also by appointing a lawyer pursuant to article 101 below.
Among the rights and faculties recognized by the law to the injured person, we recall:
The person offended by the crime also:?
In the event that the offended person is a minor, forbidden due to a mental illness or incapacitated, the faculties and the rights attributed to him are exercised by the same subjects through which the same can exercise the right to file a complaint (see above).
With particular reference to the minor age, the civil procedure code specifies, in paragraph 2-bis of article 90, that, if on this circumstance there is uncertainty, the judge disposes, even ex officio, of an expertise aimed at verifying it and that if, even after the appraisal, doubts remain in this regard, the minor age is presumed for the purpose of applying the procedural provisions.
In the event that, instead, the injured person has died as a result of the crime, our system attributes the exercise of all his rights and his rights to his next relatives or to the person who is connected with the person injured by a affective relationship or a relationship of stable cohabitation.
The rights and faculties of the person offended by the crime increase in the event that the person decides to constitute a civil party.
With the constitution of a civil party, essentially, this subject introduces the civil action within the criminal trial and can avoid asking for compensation for the damage suffered as a result of the crime by establishing a new civil case, parallel to the criminal one. In order to constitute a civil party, therefore, the offended person must also be damaged by the crime.
On the civil part and on the constitution of a civil party go to the guides:
– The civil party in the criminal trial
– The establishment of a civil party. Guide with facsimile
Below are the excerpts of some recent judgments that have concerned the role and the figure of the person offended by the crime.
“When the offended person represents the principal (if not the only) witness who has had the direct perception of the fact to be tested and is, therefore, substantially the only procedural subject able to introduce this evaluation element in the process, so that his story may be the basis for the defendant’s judgment of guilt, it must be subjected to a timely critical analysis, by comparing it with the remaining evidentiary material acquired (where possible) that can be used to corroborate his statement, or, where a verification “ab extrinseco” is not possible, through a careful and penetrating examination of the testimony, conducted with rigor and critical spirit, which invests the reliability of the declaration and the subjective credibility of the person who made it and who, however, is not based on from preconceived mistrust towards the witness, having to start from the assumption that, until proven otherwise, the witness, whether it is an injured person or a civil party, reports facts true or considered to be such “( Trib. Napoli n. 644/2018 ).
“The declaration with which the injured party, at the time of the complaint, establishes or reserves the right to become a civil party, must be qualified as a valid manifestation of the right to file a complaint” ( Cassation No. 52538/2017 ).
“The testimony of the injured person, especially when carrying a personal interest in ascertaining the fact, must certainly be subject to a more penetrating and rigorous control about his subjective credibility and the intrinsic reliability of the story (Section, 41461 of 2012, cit.), But this does not legitimize an a priori judgment of unreliability of the testimony itself (expressly forbidden as a rule of judgment) and does not allow to place it, in fact, on the same level as the declarations coming from the subjects indicated by the ‘Article 192 of the Code of Criminal Procedure, paragraphs 3 and 4, (in violation of the fee imposed by Article 192 of the Code of Criminal Procedure, paragraph 1) “? (Court of Cassation No. 35559/2017 ).
“On the subject of sexual offenses… the deposition of the offended person can also be taken on his own as a source of proof of guilt, where he is subjected to a positive investigation of the subjective and objective credibility of the person who made it, given that in this procedural context the assessment of the facts more often depends necessarily on the evaluation of the contrast of the opposed versions of defendant and offended party, only protagonists of the facts, in the absence, not infrequently, also of objective findings or other elements acts to attribute greater credibility, from the outside, to one or the other thesis “( Cassation No. 35559/2017 ).