The jurisdiction of the military court and the ordinary court

How the conflict is resolved in the competition case

formal crimes?

The Court of Cassation was consulted to settle the positive conflict of jurisdiction - when several judges consider themselves competent for the same cause - raised by the Judge for the preliminary investigations of Cosenza, urged by the defendants called to answer for the crimes of false ideological committed by a public official referred to in art. 479 of the criminal code as well as of violated delivery pluri-aggravated pursuant to art. 47 and 120 cpmp.
The GIP pointed out that a request for indictment had been issued against the defendants in relation to the same facts before the Military Court of Naples and that, when there is a formal competition, the competence to know of the military offense it is up to the military judge while al ordinary judge the knowledge of the common crime is responsible.

The fact:

The two public officials serving at the mobile radio rate of the Carabinieri Operative and Radiomobile Nucleus were accused of having failed to communicate the early return to the operations center and to have included the names of effectively controlled persons in the attachment to the service order, but in locations and at times other than those listed.
During the preliminary hearing it was found that the two accused were pending a request for indictment formulated by the Public Prosecutor at the Military Court of Naples for the crime of violated multiple consignment in competition.

The Supreme Court highlights that from the charges of the two proceedings it emerges the existence of a relationship of connection due to formal concurrence between the crimes pursuant to art. 12 lett. b) cpp, as the objective elements of the conduct put in place by the accused, are reflected both in art. 479 of the criminal code. how much in'art. 120 paragraphs 1 and 2 cpmp aggravated by art. 47 paragraph 2 cpmp.

The orientation of the Supreme Court:

The Supreme Court, in its evaluation, starts from art. 103 paragraph 3 Constitution for which any violation of the military criminal law, an integral crime, offensive to the interests of the military administration and committed by a person belonging to it, belongs to the exclusive jurisdiction of the military judicial authority.
This general principle must necessarily be coordinated with art. 13 paragraph 2 cpp for which in the case of connection of crimes, the jurisdiction belongs to the ordinary judge also for the military crime provided that the common crime is more serious according to the criteria of art. 16 paragraph 3 cpp.

While in the other cases the ordinary and military jurisdiction remain separate, with the consequence that the knowledge of military offenses belongs to the military judge and that for common offenses belongs to the ordinary judge.
The only conditions are that on the one hand the crimes are contested in pending proceedings, not yet defined with an irrevocable sentence, and that on the other hand, during the preliminary investigations, there has not been a dismissal order relating to the ordinary crime, which would make the connection .

For the resolution of the conflict of jurisdiction between military and ordinary judge, the Supreme Court, having ascertained the link between the disputed crimes, must also evaluate, in total autonomy and discretion, the correctness of the legal qualification of the historical fact in its criminalistic components of conduct, event and causal link, attributed, respectively, by the ordinary judge and by the military judge.
It is understood that the verification of the greater seriousness of the crime is based on the objection formulated by the Public Prosecutor, unless there are recognizable errors immediately perceptible, which the Court cannot refrain from modifying.

The decision of the Supreme Court:

The Supreme Court observes that, in the case of the two public officials serving at the mobile radio rate of the Carabinieri Operative and Radiomobile Nucleus, there is no provision for dismissal of the trial for the non-military offense and the conditions for changing the legal qualification of the facts having been correctly formulated by the prosecuting prosecutor.
Therefore, due to the higher legal limits of the punishment that can be imposed, the greater gravity of the crime referred to in art. 479 of the Criminal Code challenged in the proceedings underway at the Court of Cosenza which also includes knowledge of the military offense in compliance with the principle established by art. 13 paragraph 2 cpp.

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