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PRINCIPLE DANGEROUS!

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illegal occupation of public housing - the state of necessity - Housing rights - None [art. 54 Criminal Code, art. 2 of the Constitution]
not constitute the crime of illegal occupation of public housing if the offense is committed in need.
The "serious harm to the person" necessary to ensure viability of the outcome of Article. 54 cp, occurs not only in the case of direct injury of life or physical integrity of the subject, but also in the case of indirect injuries: the lack of housing is a case of indirect infringement of physical integrity, and the right of housing is a primary right of a person pursuant to Art. 2 Cost of ..

Comment & Partners Law Firm Giliberti : The Supreme Court introduced a principle certainly commendable from the standpoint of social and human but unquestionably dangerous from the standpoint of law enforcement public. In this preliminary point of law is the prevalence of the right of residence as of constitutional significance, even if in the opinion of scivente art. 2 of the Constitution speaks generically of "inalienable human rights " by reference " compelling performance of duties of political solidarity, economic and social . It is clear the use of interpretation broad construction of constitutional law but goes against a clear authority that " the state of need can be assessed for the quantification of the sentence and the granting of extenuating circumstances, but does not justify the application of the outcome of state of necessity (section IV 85/169364), for whose existence is requires a rigorous relationship between the action and the inevitability of the danger of serious harm to the person, because it is not permissible to make up the state of need by the Boards of crime ".

Supreme Court Judgement

SECTION II FEES 27 June to 26 September 2007, n. 35580
(President Morelli - Rapporteur Zappia)
Reasons for Decision

By decision of the Court of Rome condemned 02/04/2005 DG, granted extenuating circumstances, the penalty of a fine of € 600.00, having held responsible for the crime of illegal occupation of property owned dell'Iacp. With 1 .12.2006 ruling the Court of Appeal upheld the decision of Rome impugnata.Avverso that case the defendant proposes appeal alleging a violation of the law in several profili.Col first ground of appeal the appellant alleges infringement of Article. 606, co. 1 bed. d) and e), noting cpp lack of motivation in respect of the first and third grounds of the appeal proposal, and the nature of those reasons only apparent in connection with the substantive issues raised, and also notes the failure to take decisive evidence required pursuant to art. 603 cppOsserva including the applicant that the Court of Appeals had ruled the state of necessity raised by it in connection with the defendant contested occupation of property, without carrying out any specific investigation as to the actual conditions of the defendant, the need for protection of minor children , threatened physical integrity of self, the transitional nature of the action absolutely to social services, and also notes that the Court said no he was absolutely justified in order to rejection of the request for a new hearing of the wellheads Rita (PG working. who performed the inspection), which would have allowed a full examination of the individual case. As its second ground of appeal the appellant alleges infringement of Article. 606, co. 1 bed. b) and e), cpp noting the inconsistency in the reasoning in the non-application of Article. 54 cp, at least in relation to art. 59 of that particular codice.In the applicant points out that the Territorial Court had not adequately assessed the existence of the state of necessity, relevant not only with respect to housing rights, but also with reference to the law to safeguard child health, a fundamental right protected by the Constitution, not being able to omit to point out that the state of danger to the applicant and his son was not attributable to conduct the same references, it was not otherwise avoidable not having the opportunity to question any apply to the free market housing, and that the offense was committed was in proportion to the danger that the same was intended to avoid. And he concluded by highlighting that, although in this case the existence of the state of necessity could not be established with certainty because of the lack objective nell'istruttoria hearing, but she could not reasonably be excluded, so that was imposed by the cancellation of 'appeal sentenza.Il action the Board considers fondato.Sul point of having to first show that, in determining whether the outcome of the state of necessity under Article. 54 Criminal Code, under the concept of "serious harm to the person" not only of violating the life or physical integrity, but also those situations that threaten the sphere of fundamental human rights, in accordance with the provision contained in art. 2 of the Constitution, and therefore fall within that provision also indirectly only those situations that threaten the physical integrity of the subject as they relate to the sphere of primary goods related to personality, including the right to housing must be recompressed as the 'need Housing is one of the basic needs of persona.Tale broad interpretation of the concept of serious harm to the person makes, however, as evidenced by this Court (Court of Cassation, sez. II, 03/19/2003 No 24 290), that "more careful and penetrating the judicial investigation should be directed to limit their scope to cases where the outcome is indisputable the evidence of the same - the need and inevitability - they can not be compressed the rights of third parties except in exceptional circumstances clearly substantiated ". In the present case was however completely omitted any investigation is to verify the actual condition of the defendant, the need for protection of minor children, the threat physical integrity of self, both in order to verify the existence of objective requirements in terms of necessity and inevitability that, together with other information required by art. 54 cp, support the view that there ESA parola.Alla way as the above, it requires annul the contested decision, that decision remained absorbed in the additional findings submitted by the applicant, referring to new trial to another section of Court of Appeal of Rome. PQM

The Court annuls the contested decision and refers to new trial to another Section of the Court of Appeal of Rome.