Carabiniere condemned for omitted custody of arms: a cue on the criminal offense

The news appeared in some press in the last few days, concerning the conviction of a carabiniere who, according to what reported therein, would have shown, in February last year, the ordinance weapon to two girls, of whom he had evidently “attracted the 'attention', allowing them to handle it and take pictures with mobile phones, offers the opportunity to deal with the crime of 'omitted custody of weapons' which, as will be seen from the copious jurisprudence of the Court of Cassation on the matter, can materialize into varied commissions or omissions.

This criminal case was regulated by the Legislator starting from the 1930, when it was provided for in the Italian penal code which, in art. 702 (named "Omessa custody of weapons"), established as follows: "Anyone who, even if provided with a license to carry a firearm, is punished with a fine of up to XNUMX lire:

1. delivers or lets carry a weapon to a person under the age of fourteen, or to any person who is incapable or inexperienced in handling it;

2. neglects to use, in the custody of weapons, the necessary precautions to prevent any of the persons indicated in the previous number from reaching it easily;

3. bring a loaded rifle to a place where there is a meeting or a contest of people ".

This provision was later expressly repealed by art. 9, co. 2, of dl 13 Maggio 1991, n. 152 ("Urgent measures on the fight against organized crime"), later converted into the 12 law July 1991, n. 2013, which regulated the matter by introducing the art. 20 bis in L. 18 April 1975, n. 110, which reads as follows:

"Anyone who surrenders to minors under the age of eighteen, who are not in possession of the authority's license, or even partially incapable persons, drug addicts or undocumented persons in the stables, among those indicated in the first and second paragraphs of the 2 article, ammunition or explosives other than pyrotechnic toys is punished, unless the fact constitutes a more serious crime, with the arrest up to two years.

Anyone who fails to use, in the custody of weapons, ammunition and explosives referred to in paragraph 1 the necessary precautions to prevent any of the persons indicated in the same paragraph 1 come to easily possess it, is punished with arrest up to a year or with the fine up to two million lire.

The penalty of a fine ranging from three hundred thousand to one million lire is applied when the fact referred to in the first paragraph is committed:

a) in places designed for shooting, unless it is the permitted exercise of sporting activity;

b) in places where hunting can take place.

When the facts referred to in the preceding paragraphs concern the weapons, ammunition or explosives indicated in the article 1 or clandestine weapons, the penalty is imprisonment from one to three years ".

From the literal tenor of the aforementioned standard, it appears first of all evident that it is a "common" crime (ie that it can be committed by anyone: therefore, not only by members of the police, as in the case from which it was taken as a starting point) and of an infringing nature (for which, that is, the penalty of arrest and / or a fine pursuant to art. 17 cp) is provided, which makes it "ex officio" and, given the foreseen penalty, of competence of the monocratic Court.

The underlying "ratio" aims at protecting public safety through lto prevent more serious crimes against common security in general, which may derive, precisely, from the omitted custody of a weapon and from the possible consequences of such conduct: in this regard, the Court of Cassation has well argued, according to which "The crime of omitted custody of weapons (art. 20 bis L. 110 of 1975) is a crime of mere conduct and danger that is perfected for the sole fact that the agent has not adopted the necessary precautions, based on of circumstances known to him or known by ordinary diligence, regardless of the fact that one of the persons indicated by the incriminating rule - minors, incapable persons, inexperienced or drug addicts - has come to take possession of the weapon or ammunition, as it is necessary that , on the basis of specific circumstances, the agent can and must represent the existence of a situation that requires the adoption of specific and necessary precautions to prevent the possession of the arms by one of the indicated subjects. (V Criminal Section, judgment 7 December 2007, n. 45964).

By virtue of what has been said, it is clear the need for a case-by-case assessment of the individual cases from time to time subjected to the scrutiny of a criminal trial, as they may differ between them due to the dynamics, nuances and circumstances¹ which, as documented by numerous other judgments of the same Court, create often discordant orientations: thus, if on the one hand it has come to establish that "For the purposes of the existence of the crime envisaged by art. 20 bis paragraph second of L. 18.4.1975 n. 110, the simple omission of the precautions is sufficient, to nothing detecting the lack of effective apprehension of the weapons by the subjects indicated in the preceding paragraph of the same article, as well as evincing from the letter and the ratio of the incriminating norm, intended to achieve an advance protection of the good safe"(ex pluribus: Cass. Section pen. I January 21, 2004 n. 1809; Cass. I, May 4, 2004 n. 20950), on the other hand, from a less restrictive point of view, it was stated that "For the purposes of the existence of the crime envisaged by art. 20 bis paragraph second of L. 18.4.1975 n. 110, (the omitted adoption of the necessary precautions in the custody of weapons, ammunition and explosives) is sufficient the simple omission of the precautions commensurate to the diligence of the average man and proportionate to the danger that the law intends to avert such as occurs in the specific case. It follows that the custody of the weapon inside a piece of furniture and in an environment in the particular availability of the legitimate holder (in this case: in the bedroom) should be considered proper caution by not requiring the incriminating rule nor the actual possession by the subjects indicated in the preceding paragraph of the same article nor the adoption of precautions to absolutely preclude to these people the obstruction "  (See Cass. Pen. Section I, 15 March 2004 No. 12295).

In short, even if it is true that a sentence of the 1999 has established that "On the subject of arms, for the integration of the crime pursuant to art. 20 bis, second paragraph is not sufficient the mere possibility that some of the persons indicated above will take possession of the weapons, ammunition and explosives left unattended, as it is necessary the actual possession of them by the said subjects.

The mere possibility that the subjects come into possession of weapons and explosives left within their reach for lack of diligence falls, however, within the discipline dictated in general terms by art. 20 paragraph first part of Law 110/75. (Cf. Cass. Criminal Section I, 3 December 1999 n. 13894), it can be said with some certainty that, in principle, however, there is a ban on "leaving arms around", remaining in good faith sense of any owner of them to keep them away from any dangers of any kind. A concept, this, which, despite the apparent obviousness, did not prevent the occurrence of episodes of gross negligence in this regard, if it is true - as it is true - that the Ermellini were even forced to have to sentence that "Integrates the elements constituting the crime pursuant to art. 20 bis of the law 110 / 75 the custody in a living room frequented by children, of some weapons inside a piece of furniture with glass doors that make the contents clearly visible and with the key of the piece of furniture placed on the same in a clearly visible position and accessible ” (Cass. Pen. Section V, 1 March 2005 No. 07573).

For this type of crime, as already mentioned, the pre-precautionary measures of arrest and detention are not permitted, as are all other personal precautionary measures, while those of a “real” nature of the preventive seizure are applicable (art. 321 cpp) or evidentiary (art. 354 cpp).

As for the sanctioning regime and the possible solutions, it must be said that while in the hypothesis referred to in the paragraphs 2 and 3 the payment (discretionary - or special - pursuant to article 162 bis of the criminal code, for the former; 162 cp, for the third party), with the consequent extinction of the crime, the same possibility is not foreseen for the remaining cases described, for which it will be compulsory to continue with the ordinary ways of the process (with possible request, in this case, for alternative rites) ).