Legitimate reaction to arbitrary acts of a public official
A cause of putative justification
Supreme Court Sez. VI – sent. 4457/2019
The difference between an authoritarian regime and a democratic order also lies in this:
a private citizen can oppose and react to an arbitrary act committed by a public officer.
The case.
An Italian citizen has been identified by the Polfer on board a train because the Police had to notify him of the case. After handing over the documents and being identified, once at the train station he was again detained by the State Police for a second identification. The man had not committed any crime; he was called to witness a lawsuit he had filed himself.
Well, the person, believing that this second act of the Police was persecutory, reacted when the Police attempted to take him inside a steering wheel of the Police, with the threat of being transferred to the Commission to carry out the notification.
In view of the deprivation of liberty, the citizen reacted violently to the unusual “arrest“, giving rise to a fight.
The trial was held on charges of resistance and violence against public officials.
The defendant’s lawyer claimed the cause of non-punishability provided for in Article 393 bis of the Penal Code was applicable to cases of arbitrary acts committed by the public official.
With sentence no. 4457 of 29 January 2019, the Supreme Court went over the nature and limits of the cause of justification, specifying when and with what limits it can be invoked, with particular reference to cases in which the private individual “believes” the arbitrary act in the so-called putative way.
For a better understanding of the cause of justification, the location and function of the crimes of violence, insult and resistance to public officials, provided for by Articles 336 et seq. of the Criminal Code, must first be contextualized.
In a Republican Constitution, the public administration and society relationship is not based on imperio, but on the service of the first on the second.
The relationship between the citizen and the P.A. must therefore be based on the principles of loyalty, trust and collaboration.
When the Public Officer commits an unlawful, arbitrary action, the citizen has the right to disobey.
What is an arbitrary act?
According to the Constitutional Court, it is an act that is inconsistent with the methods used and the aims pursued by the acting party. It is an act that violates the elementary duties of correctness and civilization that must pervade the actions of public officials, (Corte Cost. Sent. n. 341 of 1994).
With this premise, the Italian penal code in force provides for a true and proper exemption, introduced by art. 393 bis of the Italian Criminal Code.
According to the law, the private individual who reacts to an arbitrary act of the public authority is not punishable, because he does not commit an “anti-juridical” conduct.
In the case of an arbitrary act, in fact, the passive subject (public official) does not deserve protection.
A democratic state guarantees the private individual the right to “resist” in order to protect the right that has been arbitrarily violated or endangered. And the verbal outburst of the citizen, caused by the psychic disturbance caused by the arbitrary act, even if committed to the detriment of a public official, is not punishable.
The case examined in the sentence concerns a citizen who opposed a particular identification of the Police, believing to be the victim of an arbitrary persecutionary conduct, (consisting of repeated identification, the order to board the car of service in the absence of formal objections).
It should be noted that, according to our legal system, in the event of a request for identification by a public official, the private individual has the obligation to provide the documents and what is necessary.
In the judgment in question, the Court of Cassation analyzes an interesting summary of the possibility of applying the exemption in question even in the presence of a cause of putative justification, according to the discipline of Article 59 of the Criminal Code.
In simpler terms, what happens if the person has the subjective perception of an arbitrary act which, in reality, is not arbitrary?
And if the private citizen commits an error of assessment?
In short, we can say that the error is in favour of the private individual only when he insists on the “fact”.
The error in law, that is, the case in which the private individual mistakenly thinks that the act is illegitimate because of his ignorance of the extra-penalty rule that governs that act, has no relevance.
As is well known, this type of ignorance is absolutely irrelevant and does not mean that illegal conduct can be ruled out.
In this case, however, the Court of Cassation has held that there is a cause for “putative” justification.
The private was in fact the victim of an insistent activity of identification by the Police, (first on board the train, then as soon as he got off), which was not only not allowed, but which appeared reasonably arbitrary and pretentious.
The citizen was well known to police officers, because of complaints he had filed against local magistrates and against staff of the same police station.
Thus the subject, in front of the repeated requests of the agents and the way in which these were expressed, had considered – reasonably – to be the victim of an oppressive, prevaricatory and bullying behavior towards him.
As we read in the verdict of the Supreme Court, to notify him of an act, “he was forcibly accompanied, by deprivation of personal liberty, after the police had called for reinforcements to block him and take him to the police station“.
Well, the Supreme Court has reiterated how the protection of personal liberty, a primary good, before an arbitrary act (deemed) also scripts those personal injuries caused in an attempt to escape the coercive deprivation of liberty for a mere notification.
The defendant was acquitted because that particular action does is not considered a crime.
