The policeman under investigation for the "shooting" in Termini: will politics proceed with concrete regulatory reforms?

(To Avv. Marco Valerio Verni)

As is now known, the Rome prosecutor's office would have opened an investigation into the "shooting at Termini station"where a police officer wounded a non-EU citizen armed with a knife1: for the first, culpable excess in the legitimate use of weapons would have been hypothesized, while the second, hospitalized, would already be under arrest for threats and resistance to a public officer, as well as for abusive carrying of improper weapon, while, again against him, the dispute relating to the attempted murder would have lapsed2.

Following this, the media and political uproar was unleashed, as expected, in defense, in almost all of the opinions expressed, of the policeman involved: comments such as "a country that works in reverse", "should not have been investigated", "Now you will have to pay a lawyer, while the other will be defended at the expense of the citizens", and others of similar content, have found space, in fact, in the words expressed by ordinary citizens on social networks, by opinion leaders on talk shows, even from some politicians in some of their statements.

Taking a cue from the above, let's try to make order: first of all, that the agent who shot the shot was investigated is a "Due deed". Every fact, however clear it may seem in its dynamics, and perhaps "understandable" on a human level, still requires a judicial assessment that allows us to ascertain with certainty that, indeed, it was carried out "in compliance with the rules". And this, regardless of who is involved: indeed, the fact that the subjects who were somehow the actors, are enrolled in what, journalistically, is called the "register of suspects", allows them to make use of of some guarantees that, on the contrary, they would not have, and to carry out, as appropriate, the related procedural activities.

Attention: this does not mean that this cannot "upset" or that, precisely, as in the present case, it cannot cause popular indignation. But, as mentioned, to guarantee everyone, it is a painful, but necessary step.

Therefore, those who cry scandal risk misleading and creating misinformation, especially when it comes to politicians: indeed, they should be guided by institutional rigor and, if anything, remember that they must be the ones to create laws as fair and equitable as possible, to improve existing ones and fill any gaps. But, as other recent news stories have shown, they seem to have often forgotten it by now.

As for the fact that the policeman will have to "pay the expenses for his defense", it is necessary, here too, to clarify, and, if anything, to take the opportunity of what has happened to improve, where necessary and possible, the legislation in this regard.

What does the latter foresee?

In general, all public employees - including, therefore, the policemen themselves - if it is true that, when subjected to judicial proceedings, they must "anticipate" the monetary resources useful for their defense, it is also true that, if the outcome of the themselves should be "acquitted", they could exercise the action of recourse against the Administration to which they belong. Which, clearly, would not happen in the event of a conviction.

For police personnel, specifically, there are two provisions in this regard: the first, of a specialist or sectoral character, is article 32 of the law of 22 of 1975 May 152 ("Provisions for the protection of public order), according to which

"In proceedings against officers or agents of public security or judicial police or soldiers in public security service for accomplished facts in service and relating to the use of weapons or other means of physical coercion, the defense can be assumed to request of the interested party from the State Attorney's Office or from a trusted freelancer of the interested party. In this second case, the defense costs are borne by the Ministry of the Interior except for compensation if the accused is liable for malicious acts. The provisions of the previous municipalities apply in favor of any person who, legally requested by a member of the police force, provides assistance ".

The second, having a broader scope and of a general nature, as it is valid, as mentioned above, for all state employees, is contained in article 18 of Decree Law no. 25, converted into 23 law May 1997, n. 135, (entitled "Reimbursement of legal aid expenses"), in mind of which

"Legal expenses related to civil, criminal and administrative liability judgments, brought against employees of state administrations as a result of facts and acts connected with the performance of the service or with the fulfillment of institutional obligations and concluded with a sentence or provision which excludes their liability, are reimbursed by the administrations to which they belong within the limits recognized as congruous by the State Attorney. The administrations concerned, having heard the State Attorney, may grant advances of the reimbursement, except for repetition in the case of a definitive sentence that ascertains the responsibility."

To this, it should be added that, for the same subjects, ie those belonging to the State Police, there is also the possibility of requesting an "advance on expenses", thanks to the provisions, by law, of the Presidential Decree no. 51 of April 16, 2009 ("Transposition of the trade union agreement for the civil police forces and the concertation measure for the military police forces, supplementary to the decree of the President of the Republic September 11, 2007, n. 170, relating to the regulatory four-year period 2006- 2009 and the economic period 2006-2007 ") and, in particular, in art. 21 of the same, where it is stated that

"(…)2. Without prejudice to the provisions referred to in paragraph 1, the officers or agents of public security or judicial police investigated or accused for facts relating to the service, who intend to make use of a trusted freelancer, may be anticipated, at the request of the interested party, the sum of 2.500,00 for legal costs, except for recourse if at the end of the procedure the employee's responsibility for willful misconduct is ascertained ".

Having said that, however, there do not seem to be any lack of critical issues that, precisely, events like the one in question should serve to bring the spotlight back. And let's see what they are.

Meanwhile, if on the one hand, the reimbursement, rightly, is subject to the fact that the proceeding to which it refers - then concluded with a final judgment, or other provision, which excludes any liability - has been promoted against the employee for acts or facts connected with the performance of the service or with the fulfillment of institutional obligations, on the other hand it would seem that

“(…) On several occasions, the denials were motivated by the absence of connection between the fact and the service, the non-attributability of the conduct held for institutional purposes as well as the lack of fulfillment of a duty linked to the public function. Not infrequently these findings are based on the results of a disciplinary proceeding, relating to the legal matter, which ended with the application of a sanction, which substantiates the separation of the Administration from the alleged behavior of the employee "3.

But there would be more:

"On the one hand, there is the particularly rigid and restrictive interpretation of the literal content of the rules made by the Administration during the preliminary investigation, partly supported by rulings on appeals as a source of previous denials and, much more often, induced by the rulings of the Avvocatura of the state. In fact, the tax defense body, during its opinion, mandatory in the case of article 18 and of practice for uniformity in that of 32, often does not limit itself to expressing itself on the appropriateness of the sum requested, the quantum, but also carries out evaluations on the admissibility of reimbursement, the an debeatur, expressing himself with paralyzing perspectives for the decision-makers in charge, who frequently reject a large number of requests, having on the one hand the looming threat of possible tax damage and on the other the shield of the opinion of the 'State Attorney. The second critical element is represented precisely by the calculation, almost unquestionable, of the quantum carried out by the aforementioned Technical Body, the amount of which is lower, not infrequently and especially in the most serious and complex cases, to more than half of the amount quantified by the defender. of trust".4

Another critical element, then, is that the "reimbursement" would not be due in the event that the judgment were to be concluded with a ruling of prescription of the offense or with the doubtful formula referred to in Article 530 paragraph 2 of the Code of Criminal Procedure: also on this point, one should intervene on the obvious evidence that, as regards the first (the prescription), in particular, when it intervenes, it does not depend at all on the accused and that, although it can be renounced, in many cases this does not happen at all because of the suffering that being "on trial" for an infinite time can entail (as they say "the trial itself is a penalty").

Indeed, in this regard, it would be necessary that, especially in episodes such as the one in question, the related judicial investigations are concluded as soon as possible, in the interest of both the police operator involved and the whole community (here too, of on the other hand, our system provides, at least in theory, "preferential lanes" when dealing with certain crimes: see those listed in the so-called Red Code).

A rule, of course, which should apply to everyone, but which often, indeed, is disregarded: think of the many requests for filing that turn into definitive measures after a long time from the disputed fact, and the countless preliminary hearings that, far from being that "filter" wanted by the legislator to avoid unnecessary processes, in most cases they are reduced to mere bureaucratic steps (also for procedures which then, resulting in the trial, end up, precisely, with nothing fact), with the obvious consequences that those involved in it find themselves undergoing, under various aspects (on the other hand, it is no coincidence that the reform of justice, and of criminal proceedings in particular, is one of the cornerstones of the recent National Recovery and Resilience Plan drawn up by our current Government and presented to the European Commission to receive part of the funds provided for by the Next Generation Eu program, designed to tackle the pandemic crisis which, in these long months, it has shocked the world).

In this perspective, on the other hand, the increasingly pressing need, which has become unavoidable, of having to intervene on the civil liability of magistrates appears appropriate because, generally speaking, we are now too often witnessing people who, already prejudiced, find themselves committing a crime in a manner serial, because perhaps, previously, kept at liberty as a result of a "suspended sentence" whose institution, evidently, has ended up abusing over time: following, it should be remembered, a discretionary choice of the judge of time in turn called to decide that, evidently, where he has made an incorrect assessment it is - or should be - natural that he is called to answer: especially in the most serious cases.

Returning to the case in question, however, and extending the reasoning to all the other similar ones, which have happened and which, unfortunately, will continue to happen (as long as, at least, something is not changed), it would be equally a due act that one begins to investigate also on the reasons why, in the circumstances mentioned, subjects like the one stopped at Termini are free to walk down the street with a knife in hand.

From what it seems, in fact, he "He had already made himself responsible for some episodes that had connoted its social dangerousness: in the past he had damaged some sacred statues present in some churches in Rome, then manifesting hatred attitudes towards the Christian religion to the policemen".

Also, in April 2020, apparently, "he had been surprised several times in St. Peter's Square and denounced for resistance and threat to a public official as well as for an offense to a religious confession and in June of this year he was again denounced for damage and injuries as he was responsible for throwing bottles at the Islamic center in Via San Vito in Rome; circumstance in which the imam was also injured.

Difficulties related to the attribution of nationality due to the failure to complete the recognition procedures at the Consular Authorities of Gambia, Ivory Coast, Nigeria and Ghana emerged on the position of the foreign citizen, irregular on the Italian territory, started in 2017 which made the expulsion procedures against him not executable"5.

In addition to "going to find the policeman under investigation", will politics really move, proceeding with concrete regulatory reforms?

To posterity (hopefully not too much posterity, though) the arduous sentence.

3 "The policeman and court fees", p. 11, SILP Magazine.

4 "The policeman and court fees", p. 10, SILP Magazine.