19 Apr guarantee information

The guarantee information is the act with which the public prosecutor, or the owner of the criminal action, informs the suspect and the offended person, of the fulfillment of an act of investigation that implies the technical defense (Guaranteed C.D act, cfr. infra), in relation to which the invitation to appoint a trusted defender.

The guarantee information is therefore, Often, The act through which it is formally learned of the existence of a criminal proceeding during the investigation against it: before this moment, Knowledge of the existence of a procedure can be acquired, of their own impulse, through the question of the general register of crime news, unless particular needs of secrecy do not allow the ostentions of the news.

La disposizione normativa che disciplina l’informazione di garanzia è l’art. 369 c.p.p., Entitled in Title V of Book V of the ritual code, from laugh "Public prosecutor activities”, and that it provides verbatim:

1. Only when he has to perform an act to which the defender has the right to assist, The public prosecutor sends by post, in a closed bending recommended with return receipt, to the person subject to investigationsand to the offended person an information of guarantee with indication of the laws that are assumed to be violated, of the date and the place of the fact and with an invitation to exercise the right to appoint a trusted defender.

1-to. The public prosecutor also informs the person subject to investigations and the offended person of the right to communication provided for by the article 335, comma 3.

2. If the need to revive or the post office returns the fold for the recipient's unavailability, The public prosecutor may have that the guarantee information is notified in accordance with the article 151.

The disposal reported defines content and recipients of the guarantee information as well as timing and methods of sending. Let's see more in detail, having preliminarily regarding the function of the act.

The function of the guarantee information is to allow the suspect the concrete exercise of the right of defense if the public prosecutor proceeds to carry out documents that compulsorily require the assistance of the defender; This function is fulfilled through the communication of an embryonic indication of the charges that are moved to the suspect.

The guarantee information assumes, however, a merely possible connotation given the absence of an obligation, for the public prosecutor, of completion of guaranteed acts: It follows that the entire investigative phase could take place unbeknownst to the subject subjected to it.

Il primo comma dell’art. 369, partly reformulated by art. 19 law 8 August 1995 n. 332, replacing the diction "from the first act to which the defender has the right to assist"With that"only when he has to perform an act to which the defender has the right to assist"Provides for sending the information information information as a possible and reconnects it to the completion of the so -called. guaranteed.

By reason of this, the investigation phase can take place and end without the guarantee information has ever been sent, being not necessary for the public prosecutor to perform acts to which the defender has the right to assist and not, however, mandatory.

Those investigative acts to which the’ effective participation and the concrete contribution of the defense of the suspect must be full and effective: such are the interrogation, inspection, the identification of people or the comparison in which the person under investigation must participate (art. 364 c.p.p.), the unrepeatable technical assessment (art. 360 c.p.p.), The compulsory withdrawal of biological champions.

With reference to the c.d acts by surprise (searches, seizures, ispezioni nei casi previsti dall’art. 364 comma 5 c.p.p.), with respect to which there is no obligation to notice the defender, It is believed that there is no obligation to the public prosecutor of a preventive sending of the guarantee information that would end up frustrating its effectiveness (cfr., Cass. Sez. And. 23.2.2000 which clarified that, where the suspect is present at the fulfillment of these documents, The public prosecutor is no longer burdened than the coment imposed by art. 369 c.p.p. Since the provision absorbed by the obligations given on the occasion of the performance of surprise documents including the notification of the motivated decree, the invitation to appoint a trusted defender e, lacking, the appointment of an office defender).

Destinatari dell’informazione di garanzia sono la persona sottoposta alle indagini e, se minore, anche l’esercente la responsabilità genitoriale (cfr. art. 7 del DPR 448/88), nonché la persona offesa dal reato.

A norma dell’art. 57 d.lgs. 231/2001, anche gli enti ex art. 1 d.lgs. 231/01, in relazione agli illeciti amministrativi dipendenti da reato, sono destinatari dell’informazione di garanzia, la quale deve contenere l’invito a dichiarare ovvero eleggere domicilio per le notificazioni nonché l’avvertimento che, per partecipare al procedimento, l’ente deve depositare la dichiarazione di cui all’articolo 39, comma 2 (cioè una dichiarazione contenente a pena di inammissibilità :a) la denominazione dell’ente e le generalità del suo legale rappresentante; b) il nome ed il cognome del difensore e l’indicazione della procura; c) la sottoscrizione del difensore; d) la dichiarazione o l’elezione di domicilio).