Introduction

It is not easy to give an immediate operational reading – safe and secure – to the discipline of the causes for the exclusion of criminal liability of the “legitimate use of arms” (Article 53 of the Criminal Code). The Regulation of reference, in fact, deserves to be read carefully, placing it within the framework of the general principles of the grounds for justification. Also the case law on the subject, supplies, at times, very unclear indications, if not contradictory and perplexing (1)


The Regulation of reference

For an organic discussion, it is obviously necessary to start from the given regulatory reference. According to paragraph 1 of the Article 53 c.c. “ferme le provisions contained in the two previous Articles” [Articles 51 and 52 c.c.], a public official is not punishable who, in order to fulfill a duty of his office “uses or orders the use of arms or other means of physical coercion”, when forced by the “necessity” to repulse violence or to overcome resistance to the Authority and, in any event, to impede the perpetration of the crimes of massacre, shipwreck, drowning, air disasters, railway disasters, murder, armed robbery and kidnapping.
The same provision, according to paragraph 2, is applied to any person who, legally required by a public official, lends assistance. Paragraph 3 of Article 53, however includes “the other cases” specified by the law in which the use of arms or other means of physical coercion is authorized.


The “residual” function of the Regulation

The fact that the Regulation of the Code starts by providing for the application of the common causes for the exclusion of criminal liability in the performance of duty (Article 51 c.c.) and in the legitimate defense (Article 52 c.c.) attests to the subsidiary and residual character of Article 53 c.c.
Even apart from the invoking of the causes for the exclusion of criminal liability of legitimate defense (obviously applicable not only to private persons, but also to police operators) (2) , it is hard, in fact, to find a specific area of application of the Article 53 c.c. in relation to the causes for the exclusion of criminal liability in the performance of duty, which, for the investigative police, correlates to the general obligations set out in Article 55 of the Code of Criminal Procedure [e.g. obligation to act in order to impede that crimes lead to further consequences, obligation to pursue the offender, obligation to search for evidence of the offense …] and to those specific obligations connected to the exercise of the typical powers of the investigative police [e.g. the regulations concerning the arrest in flagrante delicto] and detention of a crime suspect: Articles 380, 381 and 384 of the c.c.p.; and to regulations concerning the search: Articles 352 c.c.p., 41 of the TULPS, 103 of the Presidential Decree 9th October 1990 N° 309, etc.].
It is clear that “already” Article 51 c.c., legitimizes – for the performance of institutional duties on the part of the law enforcement agencies – the use of a certain dose of necessitated and proportioned “physical violence” with respect to the execution of the arrest, the search etc., i.e. with respect to the interruption of criminal activities in progress. In fact, the use of physical force to carry out an arrest or a search is already discriminated by Article 51 c.c., just as, similarly, the use of arms to intimidate (to shoot in the air or to the side of a person) or for preemptive purposes (to shoot at the tires of a getaway vehicle) would be likewise discriminated by Article 51 c.c., without necessarily invoking the causes for the exclusion of criminal liability of the legitimate use of arms.
This, in fact, precisely demonstrates the subsidiary and supplementary nature of Article 53 c.c., relevant [only] for the cases in which the Article 53 c.c. is not applicable: being a provision which serves to remove any doubt on the possible and legitimate use of the “firearm” to directly hit the person, in a context in which such use is a necessitated condition for the performance of the institutional obligations of the police operator.
The subsidiary and supplementary nature of the Regulation is attested to also by the limited details concerning the persons who may make use of the exclusion of criminal liability. These concern only public officials for whom, institutionally, is provided the possibility of the use of force for the realization of their institutional duties; ergo, officials and agents of public security or investigative police; the military in the service of public security and security guards, within the limits of their competence (3) . So much so that, in accordance with the indication contained in paragraph 2 of the Article 53 c.c., the cause of justification can also be applied to private persons, but only insofar as “required” by the public official to lend assistance (voluntarily or obligatorily: see Article 652 c.c.). On the contrary, it is not applied to private persons who “spontaneously” perform the arrest, former Article 383 c.c.p. (for these, if anything, the possible applicability of the exclusion of criminal liability of the legitimate defense or of the state of necessity could be discussed: Articles 52 and 54 c.c.).
The subsidiary and supplementary nature of Article 53 c.c., is attested to also by the prevision, referred to in paragraph 3, of typical “further preconditions” in which the use of arms is allowed (4) . They are preconditions which, as we shall see, are “reinterpreted” in the light of the principles of the Constitution and the ECHR.


The preconditions: the necessity and proportion of the use

To see the scope and limits of the legitimate use of arms, the preconditions must be appreciated in a necessarily coordinated way, as we shall see.
The first precondition – explicit – is represented by the literal wording of the Regulation, by the “necessity” of repulsing violence or overcoming resistance; that is, to impede the perpetration of one of the “typical” crimes [murder, armed robbery etc.]. The second precondition – implicit – is represented by the proportion and adequacy of the use of force, from the viewpoint of the inevitability (extrema ratio) of the use of arms, in alternative to other, less invasive, means of physical coercion.
The principle of proportion, although not being expressly referred to in the Regulation, is of obvious importance and must be inferred from a series of convergent considerations.
In the first place, it is the characteristic principle of all the common causes for exclusion of criminal liability and is, therefore, applicable also to the legitimate use of arms.
In the second place, the proportion and adequacy, which limit the use of arms to a necessitated and residual choice, is imposed by a constitutionally oriented reading of the causes for exclusion of criminal liability, which cannot but see as exceptional the sacrifice of life and the safety of even those who oppose the institutional activities of the police operators. A further argument is deducible from the Article 2 of the ECHR (5) , where, after the “right to life” is affirmed, the use of force with arms is allowed, [but] only when it is “absolutely necessary” to guarantee the defense of any person against illegal violence, to make an arrest or impede an escape, to suppress a riot or an insurrection.
Finally, even without an explicit literal indication, the same Article 53 c.c. suggests, implicitly, the subject of “proportion” when it legitimates not only the use of arms, but also the use of other more graded and less invasive “means of physical coercion”.

“Necessity” meaning “actuality””

Starting from the interpretative reading to be given to the first precondition, there is no doubt that “necessity” cannot but mean “actuality” of the condition legitimating the use of arms or other means of physical coercion: to be quite clear, an act of violence or resistance which is “in progress” is needed, and must be opposed; i.e. it is necessary that the perpetration of one of the typical crimes must be “in progress”.
The actual existence of the legitimizing situation conditions the concrete applicability of the exclusion of criminal liability. In default, if anything, the discipline of the cause of putative justification could be invoked (Article 59, para. 4 c.c.) under which the exclusion of criminal liability is, however, applicable if the agent “in error” believes that the precondition exist; moreover, if the error is determined by “fault”, punishability is not excluded, when the fact is envisaged by the Law as culpable. In other words, the exclusion of criminal liability could be applied to the investigative police operator who fires, hitting the fugitive, believing “erroneously” that he has to overcome “armed” resistance; while, if the error of perception proves to be culpable, the operator would be held responsible for the culpable offense of personal lesions or homicide.
It must be clear, however, that the “error” which would allow benefiting from the “putative” exclusion of criminal liability can happen only on the precondition of “fact” of the exemption [to remain with our example: the agent believed erroneously that he had to overcome armed resistance], not on the legal preconditions, because contrary to the provisions of the Article 5 c.c. on the irrelevance of ignorance of the criminal law [the exclusion of criminal liability cannot be invoked if the agent had used the firearm in the belief that he was allowed tout court to fire at a fugitive] (6) .
The consideration of the “necessity” requirement does not present particular problems when the use of arms concerns the countering of the perpetration “in progress” of one of the typical crimes. It only has to be clearly specified that, obviously, since the use of arms can occur, in order to avoid undue extension, details, at least, of the “attempt” to perpetrate one of the typical crimes must be present (Article 56 c.c.) since the use of arms to counter a simple criminally irrelevant intention is prohibited.


Passive resistance and the escape

The consideration of the “necessity” requirement to contrast violence or resistance is more problematic.
That is, to ask whether or not the violence and the resistance taken into consideration by the Regulation must be understood in the sense that it must concern violence (moral or physical) or resistance suitable to incorporate, respectively, the crimes referred to in Articles 336 and 337 c.c.
The question is not trivial since on the answer depends the solution that must be given in the hypotheses of the so-called passive resistance and escape situations which, obviously, do not constitute the crime referred to in Article 337 c.c. (7) .
Too simplistic and penalizing for the operator would be the answer which always wishes to exclude the relevance of the passive resistance and escape, from the operational scope of Article 53 c.c.
On the contrary, the answer is given in consideration of the principle of proportion, which, as has been seen, constitutes a further precondition of the applicability of the exclusion of criminal liability.
It follows then, to exemplify, that the passive resistance although not legitimizing the use of arms to hit the person, allows different and less invasive means of coercion (for example, the use of physical force for the forcible displacement of demonstrators or authors of road and railway blocks).
Similarly, again to exemplify, the “escape” clearly allows the use of arms, not to hit the person, but to intimidate. We could say that these are situations where the use of physical coercion would already find coverage in the referred Article 51 c.c.
Conversely, there is no doubt that the escape incorporates the crime of resistance, former Article 337 c.c., and allows also the use of arms to hit the fugitive if the conduct of same is dangerous: one refers to the hypothesis of the “armed” escape (8) , where the escape is realized aboard a vehicle performing maneuvers that are dangerous to the safety of the operators or other users of the road (9) .
Removing the hypothesis of the “dangerous” escape, in observance of the principle of proportion, the application of the Regulation must be made in accordance with the fact that the escape – to the point of halting or to the arrest – which does not incorporate “active” resistance, does not permit the direct use of arms to hit the fugitive (10) .


The significance of the criterion of proportion

It is precisely the principle of proportion, among other things which are deducible from Article 2 of the ECHR (11) that allows giving a balanced reading of Article 53 c.c., which avoids application of unjustified rigors against operators and, at the same time, also avoids unjustified dilations in the use of arms also in contexts where it is felt to be necessary and unavoidable.
The reference to the principle of proportion also requires “rereading” the “typical” hypotheses, in a balanced way, [referred to in paragraph 3 of Article 53 c.c.] in which the use of arms is permitted. All these hypotheses (12) should, therefore, be reinterpreted in the light of this principle. This means having to exclude the idea that even in the absence of conditions that make it “necessitated”, they can simply “legitimate” the direct use of arms to hit the subject, in order to perform the institutional duties of the public official. To be perfectly clear, also in the case of a prison escape, the indiscriminate use of arms against escapees cannot be considered permissible, but is allowed only as estrema ratio, when the intimidatory use has had no effect and when the modality of the escape is dangerous for third parties or for the operators themselves.


The consideration of proportion and culpable excess

The consideration of the compliance with the precondition of proportion, to be understood as “proportion” in the choice of coercive means [arms or other means of physical coercion], as “adequacy” in the use of the chosen means and as “inevitability” (estrema ratio) of the use of arms to hit the subject, must be done ex ante, referring it, obviously, to the moment of the activity.
If the judgment is positive, the exclusion of criminal liability is applied and the operator cannot be held responsible, not even for a different and more serious event such as death or injury. The non-controversial presence of the cause for exclusion of criminal liability – which, in fact, excludes that the fact (death or injuries) constitutes a criminal offense – would require, correctly, that the position of the operator be defined with the so-called model 46, without the formal registration in the so-called model 21 (the Register of the crime reports). This eliminates the need to prosecute the police operator, whose position can be defined with the direct dismissal of the case by the same public prosecutor. An entry in the Register of crime reports technically aimed at a request to the Judge for the preliminary investigations for a formal dismissal, can and should be made only in doubtful cases, i.e. when the preconditions of applicability of the exclusion of criminal liability do not emerge with clear evidence, thereby imposing further in-depth investigation.
Otherwise, if the judgment is negative and, above all, if there is evidence of fault on the part of the operator or in the choice or concrete use of the firearm, then the operator will bear the responsibility for culpable excess, former Article 55 c.c. This can occur when the use of the arm is legitimate, but the manner of such use (number of shots, modality of firing, explosion etc.,) are revealed to be culpable, resulting in the responsibility of the operator for the crimes of manslaughter or culpably caused personal injuries (13) .


Conclusion

The foregoing observations and, especially, the consideration that the preconditions of the ‘necessity’ and the ‘proportion’ in the use of arms and the choice of the means and modalities of their use, are to be read together, will, we believe, allow the identification of a sufficiently clear rule of conduct, able to combine the certainty and ease of the police operator with the requirements for the physical integrity of the adversary. And all this in respect of the constitutional principles and those inferred by the repeatedly invoked Article 2 of the ECHR.
For completeness, it should be added that the reasoning developed above also applies to – in the occurrence of the objective and subjective preconditions outlined in Article 53 c.c. – the personnel of the Security Information Services.
In this regard, nothing is innovated, in an amplifying sense, from Article 17, paragraph 1, of the Law, 3 August 2007 N° 124, which, as is known, introduces a special cause of justification, reserved for personnel of the Security Information Services which, in the exercise of their institutional functions, engage in conduct which ‘theoretically’ constitutes criminal offenses (14) .
It suffices to consider the provisions of paragraph 2 of Article 17 of the Law N° 124 of 2007, that list a number of legal situations in which the special guarantee discipline does not apply: namely, crimes “intended to endanger or damage the life, the physical integrity, the personal freedom, the moral freedom, the health or safety of one or more persons”. It results most clearly from this that the facts potentially and/or concretely detrimental to the life and safety of others – which are the legal values typically affected by the use of arms or other means of physical coercion – find no direct coverage in the special discipline provided for the operators of the Services, but, if anything, they can be justified by the common causes for the exclusion of criminal liability, precisely those of Article 53 of the Criminal Code.


The author advises

Uso legittimo delle armi in Digesto delle Discipline Penalistiche Author:E. Mezzetti Editor:Utet, Torino,1999, vol.XV, p.124