What constitutes the crime of private violence
The crime of private violence takes shape according to art. 610 cp when? anyone, with violence or threat, forces others to do, tolerate or omit something?.
The penalty provided for is imprisonment up to four years, increased if the aggravating circumstances set forth in art. 339 of the Criminal Code, if the violence or the threat is committed with weapons, by misrepresented persons, by more than one person, with anonymous writing, in a symbolic way or by making use of the intimidating force deriving from secret, existing or supposed associations.
The text of the art. 610 cp – Private Violence
1. Anyone who, with violence or threat, forces others to do, tolerate or omit something is punished with imprisonment for up to four years.
2. The penalty is increased if the conditions set forth in Article 339 are met.
The protected legal asset
The incriminating case in general protects the interest of the State to guarantee to every individual the moral freedom, that is the faculty to spontaneously determine himself, according to autonomous motivational processes. If on the one hand, in fact, the juridical order imposes on each one limitations and conditionings motivated by the superior demands of community life, on the other he must positively guarantee to each one to “be free” and to feel free.
The protected legal asset is therefore the “psychic” of the person from any violent and intimidating behavior capable of exercising a coercion, both direct and indirect, on his freedom to want or to act, so as to force him to a certain action, omission or tolerance.
The case in point would tend, in other words, to guarantee the victim from any aggression to psychic freedom or self-determination, but not already to the physical or movement, since in this case it would be in the different hypothesis of criminal kidnapping ( Cassation No. 9731/2009; Cassation No. 7455/1985).
Active and passive subjects of the crime
An active subject of the crime of private violence can be any individual.
In fact, it is a common crime that does not require, for the purposes of its commission, that the agent has a particular qualification, has a specific status or possesses a necessary requirement.
As for the taxable person, it is peacefully accepted that the same can only be a natural person, thus excluding juridical persons from the category, due to the evident lack of a will likely to be coerced by violent or threatening conduct.
Moreover, according to jurisprudence, the unlawful conduct can be directed not only towards a specific person, but also towards unknown persons (or a plurality), against which the violent or threatening action is indiscriminately directed (eg in the case of throwing stones from an overpass on the underlying motorway) (Cass. No. 1628/1995).
It is still controversial today, however, whether the crime can be configured also against individuals lacking the capacity to understand and to want (for example, due to drunkenness, use of drugs, mental sickness, etc.). Grado not able to perceive possible offenses to moral freedom.
Objective element of the crime
Private violence is peacefully considered a ” subsidiary” crime, in the sense that it is recognizable whenever there is no different legal status for that specific fact (Cassation No. 4996/1998; Cassation No. 2664 / 1986), as well as a “complex” offense, meaning that its constituent element must be condotta a conduct which, considered in isolation, would constitute the material element of another offense? (Cass. N. 43219/2008).
It is also an instant crime that is consumed when the will of others is forced to do or tolerate something, without the need for the action to have a continuous effect “(Cassation No. 4996/1988).
The agent can use, alternatively or jointly, pursuant to art. 610 cp, the material elements of violence and threat to achieve its purpose of coercing the victim.
Consequently, when in the same context violent or threatening conduct is put in place, both aimed at imposing on the victim a?tacere? or?pati?, the crime is to be considered integrated if the agent reaches his goal, otherwise? configurable the attempt (see Cass. n. 15715/2012; Cassation n. 3609/2011; Cass. n. 7214/2006).
Conduct of violence and threat
The criminal conduct is in a constrained form and consists of the violence or threats that have the effect of forcing others to do, tolerate or omit a certain thing.
The element of violence is identified?in any suitable way to forcibly deprive the offended of the freedom of determination and action?, as it may also consist?in “improper” violence that is implemented through the use of direct anomalous means to exert pressure on the will of others, preventing their free determination? (Cass. n. 11907/2010).
For the purposes of configurability of the crime of private violence it is necessary, moreover, the expression of any “physical energy exercised on a thing” (Cassation No. 21559/2010), immediately productive of situations suitable for affecting psychic freedom of the victim.
It follows that a purely omissive conduct is omitted from the criminal offense in the face of a request from others, when the same is resolved in a passive form of non-cooperation in the achievement of the result desired by the applicant? (Cassation n. 2012/2009).
As for the threat, on the other hand, the same consists in any behavior or attitude, even if not explicit,?id to provoke fear and arouse the concern of an unjust damage in order to obtain that, through said intimidation, the passive subject is induced to do, tolerate or omit something (Cassation No. 3609/2011; Palermo Tribunal No. 3022/2007).
Subjective element of the crime
The subjective element of the crime is the generic intent, that is the conscience and the will to force someone, through violence or threat, to do, tolerate or omit something.
For the purpose of configuring the offense, therefore, it is not necessary to concur with a particular purpose, nor that the conduct of the offender is aimed at achieving an unlawful purpose (Cassation No. 4526/2010), since it is irrelevant that agent is moved by possible end of joke? (Cass. n. 2539/1985).
Procedural aspects and facsimile of lawsuit
In relation to the procedural aspects, the crime of private violence ibile that can be prosecuted ex officio and the competence rests with the court in monocratic composition.
The optional arrest in flagrante delicto (art. 381 cpp) is envisaged, as well as the applicability of personal precautionary measures (articles 280 and 287 Code of Criminal Procedure), while the arrest of a suspect of crime is not allowed.