12 Sep citizen's arrest

Arrest in flagrante delicto constitutes one of the most important institutions in the preliminary investigation phase, as it allows the judicial police, under the conditions established by law, to immediately deprive a person of personal liberty in connection with the commission of a criminal act, even before a judicial decision is made. It deals with, therefore, of a measure that has a clear exceptional character, since it directly affects the personal freedom of the individual, constitutionally guaranteed by art. 13 Cost., according to which personal freedom is inviolable and no form of restriction is permitted except by reasoned act of the judicial authority and only in the cases and methods provided for by law, save the chance, in exceptional cases of necessity and urgency strictly indicated by law, for the public security authority to adopt provisional measures which must be communicated to the judicial authority within forty-eight hours and validated by the same in the following forty-eight hours, under penalty of their revocation and loss of all effects. It is precisely within this delicate balance between the protection of personal freedom and the need for immediate repression of crimes that the discipline of arrest in flagrante delicto must be placed., contained mainly in Title VI of Book V of the criminal procedure code, to the articles. 380 and following. The institute finds its reason in the particular evidential evidence that normally characterizes the situation of flagrant crime: the perpetrator of the crime is in fact caught while he is committing the crime, or immediately after its consumption, in circumstances such as to make the connection between the person and the offense committed particularly clear. The arrest, however, it does not represent an anticipated form of punishment nor can it be considered a declaration, even temporary, of responsibility of the suspect, fully implementing the principle of presumption of innocence enshrined in the art. 27, comma 2, Cost. The function of the institute is eminently procedural and precautionary, being aimed at allowing timely care of the person involved in the crime and allowing the immediate intervention of the judicial authority, which is subsequently responsible for verifying the legitimacy of the arrest e, where the conditions are met, evaluate the application of a precautionary measure. The first prerequisite for the arrest is represented, therefore, from the state of flagrancy, whose notion is defined by the art. 382 c.p.p. The provision first identifies flagrancy in the strict sense, which occurs when the subject is caught in the act of committing the crime. This is the most immediate and intuitive hypothesis: the agent is directly caught while carrying out the criminal conduct, so that the perception of the fact by the prosecuting bodies is contextual to its execution. Alongside this hypothesis, art. 382 c.p.p. contemplates what is traditionally defined as “quasi-flagrance”, recurring when, immediately after the crime, the author is chased by the judicial police, by the offended person or by other people, or when he is caught with things or traces from which it appears that he committed the crime immediately before. The distinction is of particular practical importance because the jurisprudence of legitimacy has repeatedly underlined that quasi flagrancy cannot be expanded to include situations in which the identification of the person responsible is the result of a real investigative activity following the fact. The United Sections of the Court of Cassation, with sentence no. 39131 of the 2016, they have in fact clarified that, for the purposes of the existence of quasi-flagrance, there must be a relationship of immediacy between the fact and the perception of the elements that allow the author to be identified, since the judicial police are not sufficient, after carrying out investigative activities, collected information, made declarations or carried out investigations, subsequently arrives at the identification of the alleged perpetrator. The pursuit provided for by art. 382 c.p.p. it must be an effective pursuit and cannot be replaced by investigative activity aimed at finding the perpetrator of the crime. Likewise, the things or traces must be perceived in an immediate situation and must present an unequivocal connection with the crime just committed and with the person arrested. The most recent jurisprudence has further reiterated this principle, excluding the possibility of quasi-flagrance when the arrest is the result of investigations carried out after the commission of the crime and not of an immediate perception of the traces of the crime or of a physical pursuit of the perpetrator. This rigorous interpretation responds to the need to prevent the regulation of arrest in flagrante delicto from being used to attribute to the judicial police a power of arrest free from the requirement of immediacy, effectively transforming the arrest into an instrument of personal coercion following ordinary investigative activity. The discipline of flagrancy then presents a particular configuration in permanent crimes, so long as, pursuant to Article. 382, comma 2, c.p.p., the state of flagrancy remains until the permanence ceases. This means that, in crimes characterized by illicit conduct over a long period of time, the arrest can also be carried out during the phase in which the illegal situation is still ongoing. The regulation of the institution introduced for certain cases through the so-called "deferred flagrance" is different., today governed by art. 382-Twice c.p.p., which allows, in the cases strictly provided for by law, to consider the person identified through video-photographic documentation or other documentation legitimately acquired from IT or telematic devices to be in a state of flagrant crime, provided that the commission of the crime unequivocally emerges from the documentation and the arrest occurs within the rigorous time limits established by law. Deferred flagrancy constitutes, therefore, a derogation from the traditional conception of immediacy, justified by the particular nature of certain crimes and by the possibility of using images or other data acquired immediately after the facts to subsequently identify the perpetrator, but it cannot be extended analogically to cases other than those expressly contemplated by the legislator. Once the flagrancy has been ascertained, it is necessary to verify which discipline is applicable in relation to the crime committed. The code in fact distinguishes between mandatory arrest and optional arrest. L’art. 380 c.p.p. regulates compulsory arrest in the act and establishes that judicial police officers and agents proceed with the arrest of anyone caught in the act of committing a non-negligent crime, consumed or attempted, for which the law establishes the punishment of life imprisonment or imprisonment of no less than a minimum of five years and a maximum of twenty years, in addition to the further hypotheses specifically listed in the second paragraph of the provision. The rule, therefore, identifies a series of cases in which the assessment of the appropriateness of the arrest was carried out directly by the legislator: the regulatory prerequisites being met, the judicial police body is required to proceed. The mandatory nature of the arrest does not mean, however, that any factual situation can automatically be brought back to the provisions of the art. 380 c.p.p., since it remains essential to verify the actual existence of all the conditions established by law, including flagrancy, the correct legal qualification of the fact and the penalty limits established by the provision. Alongside compulsory arrest there is optional arrest regulated by art. 381 c.p.p., which gives the judicial police the power to arrest anyone caught in the act of committing a crime for which the law provides for certain thresholds of punishment or in further cases expressly indicated by the law. The difference between the two institutes is not merely terminological: while in compulsory arrest the legislator believes that the seriousness and characteristics of the crime make immediate deprivation of personal liberty necessary, in optional arrest, a further evaluation by the judicial police is required. L’art. 381, comma 4, c.p.p. in fact it establishes that, in the event of optional arrest, arrest cannot be made if the measure is not justified by the seriousness of the fact or by the dangerousness of the subject deduced from his personality or from the circumstances of the fact. It follows that mere flagrancy is not enough, in cases of optional arrest, to make the deprivation of personal liberty legitimate: a concrete and individualized assessment of the need for the intervention is needed. The Court of Cassation has repeatedly clarified that the assessment required by art. 381 c.p.p. it must be effective and refer to the circumstances concretely known by the judicial police at the time of the arrest, without the institution being able to transform into an automatic form of personal coercion. The seriousness of the fact can be deduced from the methods of conduct, by the intensity of the fraud, the nature and extent of the damage or danger caused, while the dangerousness of the subject can be assessed in light of the personality of the perpetrator and the concrete circumstances in which the crime was committed. The judicial police's assessment does not coincide, however, with what must subsequently be carried out by the judge when applying a precautionary measure. This point takes on particular importance because arrest and precautionary measures are distinct institutions, characterized by different assumptions and purposes. At the time of arrest, the judicial police must verify the existence of the flagrancy and the conditions set out in the articles. 380 o 381 c.p.p.; subsequently, the validation judge will have to verify the legitimacy of the arrest e, separately, if the conditions apply, evaluate the existence of the conditions for the application of a precautionary measure pursuant to the articles. 273 and following c.p.p. Legitimacy jurisprudence has underlined the need not to overlap these different evaluation plans: during validation, the judge must verify the legitimacy of the judicial police's actions on the basis of the elements available at the time of the intervention, according to a judgment of reasonableness, without anticipating the definitive assessment of the suspect's responsibility and without confusing the control of flagrancy with that relating to precautionary needs. The arrest, indeed, it does not presuppose proof of guilt and does not allow us to state that the subject has definitively committed the crime. Even when a person is caught in the act of committing criminal conduct, subsequent criminal liability must be ascertained according to the rules of the trial and in compliance with the guarantees provided by the law. Particularly important is the art. 385 c.p.p., which establishes prohibitions on arrest or detention in certain circumstances, providing that the arrest or detention cannot be carried out when, taking into account the circumstances of the case, it appears that this was done in the fulfillment of a duty or in the exercise of a legitimate faculty or in the presence of a reason for non-punishment. The provision constitutes a further safeguard against a merely automatic application of arrest, requiring the judicial police to also consider the concrete circumstances that may affect the lawfulness or punishability of the conduct. It is also necessary to distinguish arrest from the detention of a person suspected of committing a crime governed by the art. 384 c.p.p. Arrest can also be ordered outside of flagrant cases and presupposes serious indications of guilt and specific elements from which a well-founded risk of escape emerges., in the cases provided for by law. The fundamental difference therefore lies in the factual assumption: the arrest is closely linked to the state of flagrant crime, while arrest finds its reason in the need to prevent a person seriously suspected of certain crimes from escaping justice by fleeing. The regulation also contemplates:, all’art. 383 c.p.p., a particular hypothesis of arrest by private individuals. In the cases provided for by the art. 380 c.p.p., every person is authorized to proceed with arrest in flagrante delicto when it comes to crimes that can be prosecuted ex officio. The private option is not equivalent, however, to a general coercive power: the intervention is strictly limited to the cases foreseen by law and the person who carried out the arrest must without delay hand over the arrested person and the things constituting the body of the crime to the judicial police, who proceeds to record the delivery. The discipline following the arrest assumes fundamental importance in terms of defensive guarantees. Pursuant to art. 386 c.p.p., the judicial police who carried out the arrest or detention must immediately notify the public prosecutor of the arrest and must inform the arrested or detained person of the rights and faculties to which he or she is entitled, as required by law, proceeding with the necessary steps to ensure compliance with the defensive guarantees. The arrested person must be promptly made available to the judicial authority and the entire procedure is subject to particularly stringent deadlines, precisely in consideration of the temporary nature of the deprivation of personal liberty. L’art. 390 c.p.p. regulates the request for validation of the arrest or detention, lies the art. 391 c.p.p. governs the validation hearing. At this stage the judge proceeds to supervise the arrest and verify, in particular, the existence of the conditions that legitimized its execution, as well as proceed, when the conditions apply, to the assessment relating to the possible application of a precautionary measure. Validation therefore constitutes the essential moment in which the control of the judicial authority takes over from the provisional intervention of the judicial police. The system is constructed in such a way as to prevent an urgent deprivation of liberty from continuing indefinitely without the control of an independent judge. It is particularly significant, in this context, the provision of the art. 389 c.p.p., which regulates cases of immediate release of the arrested or detained person, providing that the person must be released when it is clear that the arrest or detention was carried out due to personal error or outside the cases provided for by law or when the conditions that legitimized its continuation have ceased to exist. The discipline of arrest must also be coordinated with the constitutional and conventional provisions established to protect personal freedom. Oltre all’art. 13 Cost., art is relevant. 24 Cost., in matters of the right of defence, art. 27 Cost., relating to the presumption of innocence, and art. 111 Cost., which enshrines the principles of fair trial. On a supranational level, in particular, art. 5 of the European Convention on Human Rights, which regulates the right to freedom and security and establishes conditions and guarantees for the legitimate deprivation of personal liberty. In this perspective, arrest in flagrante delicto must always be interpreted according to criteria of legality, need, proportionality and effective judicial control. A further profile of particular interest concerns the relationship between arrest and investigative activity. The judicial police have particularly incisive powers of intervention when the crime is in progress or has just been committed, but these powers cannot be used to circumvent the ordinary rules governing preliminary investigations. The Court of Cassation has repeatedly reiterated that the flagrant situation must be objectively verifiable and cannot be constructed through subsequent investigative assessments. In particular, the identification of the author through testimonial statements, inspections, analysis of information elements, examination of messages or other investigations carried out some time after the fact does not determine, in itself, an almost flagrant situation. The Court of Cassation thus clarified that the arrest cannot be considered legitimate simply because the judicial police quickly acquired sufficient elements to hold a person responsible for the crime: what is important is that one of the situations typified by the art occurs. 382 c.p.p. and that the connection between the fact and the person is immediate within the terms established by law. This distinction also takes on particular importance from a procedural point of view, since the illegitimacy of the arrest can lead to non-validation by the judge, without this necessarily making it impossible to continue the investigation or use, within the limits permitted by law, the elements acquired during the investigative activity. Illegitimate arrest and the criminal liability of the suspect are in fact conceptually distinct issues: a person may actually be responsible for the crime charged, but having been arrested illegitimately because the conditions for flagrant crime were not met or because the conditions established by the articles were not respected. 380 e 381 c.p.p. Vice versa, the validation of the arrest is not equivalent to a declaration of responsibility, but constitutes exclusively the recognition of the legitimacy of the temporary coercive intervention carried out by the judicial police. This distinction represents one of the fundamental aspects of the entire criminal procedural system, because it prevents transforming an institution designed to manage investigative urgency into an anticipation of the judgment of guilt. It must also be remembered that arrest in flagrante delicto can take on a particularly important function in proceedings relating to crimes characterized by high offensiveness or situations in which timely intervention is essential to prevent the continuation of the conduct., the escape of the author or the dispersion of the evidence. Precisely for this reason the legislator has progressively expanded and modified the hypotheses in which the arrest can be carried out, introducing special disciplines for specific categories of crimes e, in certain situations, tools such as deferred flagrancy. This progressive extension must, however, constantly deal with the principle of the peremptory nature of limitations on personal freedom, so that any expansion of the power of arrest must be based on a precise legislative provision and cannot be the result of analogical interpretations unfavorable to the suspect. Ultimately, arrest in flagrante delicto represents an institution in which the tension between two fundamental needs of the penal system is particularly evident: on one side, the need to ensure an immediate response to the commission of certain crimes and to allow the judicial police to intervene promptly; on the other, the need to preserve the individual's personal freedom and to prevent the mere perception of responsibility from resulting, without adequate judicial control, in an arbitrary compression of freedom. The articles. 380 e 381 c.p.p. they therefore outline two distinct models of intervention, mandatory and optional, both subject to the existence of the state of flagrancy defined by the art. 382 c.p.p.; the articles. 383 e 384 they discipline, respectively, arrest by private individuals and the different institution of arrest of a crime suspect; the articles. 385 and following establish further limits, obligations and guarantees; in the end, the articles. 390 e 391 ensure the necessary judicial control through the validation procedure. The jurisprudence of the Court of Cassation contributed decisively to defining the boundaries of the institute, especially with reference to the notion of flagrancy and quasi-flagrance, imposing a rigorous reading of the immediacy requirement and denying that the arrest can be based on a mere "investigative lapse", i.e. on a research activity of the perpetrator subsequent to the commission of the crime. It follows that the arrest in flagrante, whilst constituting an essential tool for the effectiveness of the criminal response, it remains an exceptional and typified measure, the exercise of which must be constantly brought back to the conditions established by law and subjected to the control of the judicial authority. Its legitimacy therefore does not depend only on the seriousness of the crime complained of, but from the concrete occurrence of a flagrant situation, from the correct application of the articles. 380 o 381 c.p.p., from compliance with the limits established by the art. 385 c.p.p., from compliance with the obligations imposed on the judicial police e, mostly, by the timely control of the judge. Precisely the combination of immediacy of the intervention, strictness of the conditions and subsequent judicial verification allows the needs of security and repression of crimes to be reconciled with the principle, central to the rule of law, according to which personal freedom can be compressed only in the cases and in the ways strictly established by law and in compliance with the constitutional and procedural guarantees recognized to every person subjected to criminal proceedings.