Sunday, August 17, 2014

When are words and gestures criminal?

The following case report has been kindly prepared by attorney Francesco Pandolfi. We look forward to further reports on Italian military justice developments from him.

Court of Cassation

Charges: aggravated disobedience, insubordination and insults

The Military Court of Appeal, dismissing appeals by both the accused and the prosecutor, has affirmed the judgment of the Military Court of Rome, under which an Air Force warrant officer second class serving at the Meteorology Center was sentenced to two months imprisonment for aggravated disobedience. He had been acquitted of insubordination with injury.

The accused was found guilty of not having complied with an order to join his superior officer, a Lieutenant Colonel in his room to discuss the granting of a medical chit, but was acquitted of insubordination with injury when he told that officer "Now you have to go ... shut up," accompanied by a hand gesture to leave.

The acquittal was upheld by the Court of Appeal on the ground that the words and facial expression did not violate the victim's moral patrimony.

The Military Prosecutor General appealed under Article 606 para 1(b) of the Code of Criminal Procedure, alleging non-compliance with the criminal law and, in particular, Article 189, para 2 of the Code of Military Criminal Procedure.

According to the government, the accused's behavior, being closely related to the performance of the Lieutenant Colonel's powers and duties, was certainly injurious to the superior's prestige, honor and dignity, and therefore constituted insubordination with verbal and offensive gesture under Article 189 para 2 of the Penal Code. On appeal, the court held that the government's claim was without merit (section 1 Criminal Court of Cassation, decision n° 40813/13).

The military judges at two levels explained that use of the words "Now you have to go ... shut up," using the familiar form of address and accompanied by a hand gesture inviting the superior officer to leave the room, does not constitute an offense but rather is subject to disciplinary action as simple disrespectful behavior.

Avv. Francesco Pandolfi | Military Law      
328 6090 590 skype: francesco.pandolfi8

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