Judgment No. 51159 of 2023: State of Necessity and Relevance of Putativity

The recent judgment No. 51159 of October 12, 2023, issued by the Court of Cassation, offers important insights regarding the theme of state of necessity in criminal law. This ruling clarifies the necessary requirements for a conduct to be considered justified in the presence of an actual danger of serious harm to a person. The decision concerned the case of an individual who, due to navigation difficulties, had used a compass to orient himself while transporting irregular foreigners, and the Court excluded the configurability of the justification.

The Concept of State of Necessity

The Italian Penal Code, in Article 54, regulates the concept of state of necessity, defining the circumstances under which an individual can justify their criminally relevant conduct. The fundamental principle is that the intervention must be necessary to avoid serious harm, which must not have been caused by the same individual who performs the necessitated action. The ruling in question highlights the importance of putativity and the conditions required to invoke this justification.

PUTATIVITY - State of Necessity - Requirements - Danger of serious harm to a person not caused by the active subject - Relevance - Case Law. In terms of state of necessity, the actual danger of serious harm to a person, which cannot be otherwise avoided, must not have been caused voluntarily or negligently by the individual performing the necessitated intervention and must also be independent of his will. (Case in which the Court excluded the configurability of the justification concerning an individual who, due to unexpected navigation difficulties, had used the compass on board a vessel transporting irregular foreigners, as the agreement for the use of the instrument had occurred at the time of the vessel's departure).

Implications of the Judgment

The Court emphasized that for an individual to invoke the state of necessity as a justification, it is essential that the danger does not arise from voluntary or negligent behavior. This means that the individual must be in an emergency situation not caused by himself. In the specific case, the fact that the defendant had agreed to use the compass only at the time of departure implies that the emergency was already in progress, which excludes the possibility of invoking the justification.

Conclusions

Judgment No. 51159 of 2023 represents an important reflection on the conditions of the state of necessity within our legal system. It clarifies that, in order to invoke this justification, it is crucial that the danger is actual, serious, and not caused by the individual himself. This ruling not only sheds light on the specific case but also offers useful indications for better understanding the legal dynamics governing emergency situations in criminal law. The analysis of such a judgment is fundamental for legal professionals and anyone wishing to deepen their knowledge regarding justifications.

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