22 Oct building offenses and limitation period

To define the exact moment from which to count the expiry of the limitation period of the building crime, the nature of this criminal offense must first be established. Therefore, it will be necessary to establish whether the infringement provided for by art. 44 del T.U. construction possesses the characteristics of a permanent crime or has the nature of an instant offense. Generally, the permanent offense can be found in those situations in which the offense to the legal asset protected by the legal system continues over time, by virtue of persistent and voluntary conduct; the United Sections defined it as that particular hypothesis "for which the law requires that the offense to the legal good be protracted over time for a duration that is linked to the persistent voluntary conduct of the acting subject". Instant offenses, instead, they are those in which the consuming moment is enclosed and runs out in a short period of time. The correct classification of the instantaneous or permanent nature of the building offenses has been the subject of jurisprudential conflict, this is now considered to have been overcome thanks also to various rulings that have taken place in recent years. More specifically, the III Section of the Court of Cassation, with sentence no. 7889 of 4 March 2022, intervened to clarify the nature and type of building offenses, illustrating that «violations of the technical regulations have the nature of a permanent crime, while the crimes relating to the failure to submit the work report and the start of work notice are in the nature of instant offenses ". The Supreme Court adds, Furthermore, that the offense that punishes the execution of the works in total discrepancy or absence of permission, contained in art. 44, co. 1 became. b, the D.P.R. 6 June 2001, n. 380 (c.d. Consolidated Building Act), is a permanent offense and that, therefore, la consumazione perdura fino alla cessazione dell’attività abusiva. L’art. 157 the Penal Code, as it is known, contains the general discipline of the statute of limitations, providing that the time in which a crime is prescribed depends on the maximum penalty established by the legislator for that particular case. In any case, But, as a general forecast, is fixed a termine di prescrizione in sei anni per i delitti e in quattro anni per le contravvenzioni. In the event that the criminal proceedings have begun and one or more cases of interruption of the prescription course have occurred, ex art. 160 c.p., the ordinary term provided for by art 157 c.p. it will increase by a quarter, arriving, then, at five years. This period has elapsed without an irrevocable sentence being passed, it is believed that the punitive claim of the State will cease e, consequentially, the extinguishing cause of the crime intervenes. Therefore, is of particular importance, for the purpose of calculating the limitation period, the exact identification of the so-called. dies a quo, that is the main element in order to establish the time of termination of the commission of the crime e, consequentially, calculate the statute of limitations for the offense. Regarding permanent offenses, the tempus commissi delicti of the offense is the one in which the last act of the permanent conduct takes place. In building offenses, the day from which the limitation period runs is not immediately and intuitively identified; for this reason there have been several rulings by the Court of Cassation to indicate precisely the dies a quo. Generally, the jurisprudence believes that the limitation period of the building crime can run at different times:

• completion of the illegal work
• voluntary withdrawal from work
• intervention of the authority with the obligation to interrupt the works / seizure
• first instance sentence, if the work continues even during the criminal proceedings

The first requirement requires that "the completion of the work coincides with the conclusion of the internal and external finishing works, such as plasters and fixtures. It has to be, in other words, of a concretely functional building, which possesses all the requisites of viability or habitability "e, also, «The works must be, Furthermore, evaluated as a whole, not being able, based on the unitary concept of construction, consider the individual components separately. Those features concern, Furthermore, also the parts that constitute annexes of the house ". They are not enough, instead, the material use of the property and the possible activation of utilities in order to demonstrate the actual functionality of the property, since these are circumstances that do not completely eliminate the possibility of continuing the execution of works, nor do they demonstrate the definitive cessation of the works. For the purpose of demonstrating the end of the works, instead, the Supreme Court requires that the interruption "from the continuation of the abusive intervention, it must be definitive and not just temporary, and requires, necessarily, to be effectively demonstrated through objective and unambiguous data, not being able to rely on mere attestations, so long as, otherwise, any interruption of work, even if due to contingent circumstances, it could be used to represent a more advantageous temporal collocation of illegal works ". In case you want to invoke, for the first time, the prescription in the course of the Supreme Court judgment will be the responsibility of the defense to produce a response to its "statements by providing incontrovertible elements, capable on their own to confirm that the offense was committed on a date prior to the disputed date, and not disproved or denied by other evidence acquired at the trial " . In the event that they come, instead, carried out further work on an illegal building that has not been remedied or condoned, you will be faced with the commission of a new crime punished by art. 44, co. 1 became. b, the D.P.R. 6 June 2001, thus excluding a possible do not do the same thing twice. The Court has, indeed, clarified that the «building works affecting said artifacts, as further interventions (albeit attributable, in their objectivity, to the categories of extraordinary maintenance, of the restoration and / or conservative rehabilitation, of the restructuring, the realization of works constituting urbanistic pertinence) ripetono le caratteristiche di illegittimità dell’opera principale alla quale ineriscono strutturalmente». Therefore, «qualsiasi intervento effettuato su una costruzione realizzata abusivamente, ancorché l’abuso non sia stato represso, costituisce una ripresa dell’attività criminosa originaria, che integra un nuovo reato, anche se consista in un intervento di manutenzione ordinaria, perché anche tale categoria di interventi edilizi presuppone che l’edificio sul quale si interviene sia stato costruito legittimamente».