Outrage to public officials: Decriminalized but not too much

Today we will face a case treated by our firm

The case:

Mrs S., operator social health, was charged with the crime referred to inart. 341-bis of the criminal code because in a public place and in the presence of several people offended the honor and prestige of a public officer belonging to the Municipal Police during his institutional activity with threats and insults.

The process:

During the first hearing before the single judge, the defendant's defense pleaded the nullity of the criminal conviction decree, on the basis of the ruling of the Constitutional Court which had sanctioned the constitutional illegitimacy of art. 460 criminal procedure code in the part in which it does not contain the notice to the accused of the right to have access, in addition to the alternative rites, also to the suspension of the proceedings for probation.

The defendant's defense objected that since it is a so-called "monitorio" proceeding, the defensive rights of the suspect / accused person are already compressed so that by omitting this notice they are further prejudiced also in light of the principles dictated by the European Court of Human Rights (ECHR) .

The defendant also recalled, in support of her defense arguments and in the face of the complaints of the Public Prosecutor who requested the rejection of the objection as the decree had been notified before the sentence of the aforementioned Constitutional Court, the'art. 2 paragraph 4 of the criminal code in the matter of succession of laws over time by virtue of which if the law of the time in which the crime of insulting a public official was committed and the subsequent ones are different, the one whose provisions are more favorable to the offender apply.
The single judge correctly decided to put the defendant in deadline so that she was given notice of the right to access the suspension of the proceedings for probation.

What the Constitutional Court says:

The notice to the accused of the possibility of requesting alternative rites constitutes an essential guarantee for the enjoyment of a right of defense and the sanction of nullity pursuant to Article 178, paragraph 1, letter e) of the Criminal Procedure Code in the event of omission of the prescribed notice, finds its reason essentially in the irremediable loss of the right to request alternative rites if a term is established for the request under penalty of forfeiture.

The Judge of Laws specifies that when the deadline for requesting alternative rites is anticipated with respect to the trial phase, so that the lack or insufficiency of the relevant warning can determine the irremediable loss of the right to access it, the violation of the procedural rule that requires giving to the accused exact notice of his power, the lack of which involves the violation of the right of defense.

The set of principles, developed by the Court, on the defensive faculties for the request of special rites cannot fail to apply to the new testing procedure to allow the accused to determine correctly in his defensive choices and it is therefore necessary that he be given notice of the right to request it.

Furthermore, in the proceeding by decree, the deadline by which to ask for probation is anticipated with respect to the judgment, and corresponds to that for proposing opposition, the failure to foresee among the requirements of the criminal decree condemning a notice, such as that provided for by art . 460, paragraph 1, letter e) of the Criminal Procedure Code, of the accused's right to ask for probation entails an infringement of the right of defense and the violation of art. 24 paragraph 2 of the Constitution.

The omission of this warning can in fact cause irreparable prejudice in which the accused in opposing the decree, not having been notified, made the request in question only during the trial hearing, and therefore belatedly.

The outcome of the judgment:

Upon receiving new notification of the notice of the right to ask for probation, the accused decided not to use the institute and to proceed with the trial.
Furthermore, during the preliminary investigation, the same Municipal Police agents who intervened, following the outcome of the witness examination, were unable to identify with absolute certainty Mrs S. as the perpetrator of the crime of insulting a public official.
Upon the outcome of the further new notifications and subsequent postponements of the discussion of the case, the limitation period for which it was ordered that the defendant should not be prosecuted due to the prescription of the crime.

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