Fattispecie indennitaria e danno da processo penale

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Compensation for damages incurred during criminal proceedings is framed in the context of the responsibility of legal activity carried out by public administration.In administrative law, the concept of “welfarism”, inspired by special regime, is flanked by a model based on the statutory paradigm,with influences arising from the contractor’s liability for risk, or from multiple cases of objective liability. Often the indemnity parameter is confused with non-contractual or pre-contractual compensation.In some cases, the developments of these instances put emphasis on the “protection of legitimacy” in the private sector or the “apparatus of guilt”. Similar forms of responsibility are found in European systems where compensation is derived from the infringement of the principle of equality, in the “rupture de l’égalitédevant les charges publique”(within the responsabilité sans faute) or, in the German variant, the “Lastengleichheit”.Alongside traditional assumptions in the compensation process, already identified legally in cases of wrongful imprisonment, violations of the right to a speedy trial, and miscarriage of justice, we can imagine there are many other hypotheses for procedural damages.Slow judicial practice, complex bureaucratic procedures, overcrowding of trials, and media overexposure resulting from strepitus fori, create situations where injuries incurred become eligible for compensation proceedings, even beyond the hypothesis of a dysfunctional use of contract (“abuse of process”). Serious damages incurred in procedural violations are also verified in the field of preventive measures.There is a choice to comply with a procedural indemnity model inspired by the rule of obligation or a more abstract, general model.The first solution already found its prototype in equitable reparation in light of unreasonable length of proceedings under Lawn. 89 on 24 March 2001, and it makes possibile a future profiling new assumptions of responsibility on criminal procedural damage,resulting in compensation.A more general paradigm of compensation would instead require an application with extensive regard to similar cases.As we anticipate interventive changes to legislation, the ‘compensation’,inspired by positive performance and impartiality on behalf of the public administration, could represent a kind of generalsanctioning against the failure of proceedings, in line with the protection of “legitimate expectations”.“Entrustment”, often applied in case law by the standards of proportionality and rationality, is linked to the principle of equalityand ensures the certainty of legal positions of private citizens,which is also in line with the Principle of Solidarity with respect to the powers of the State.
Lingua originaleItalian
Numero di pagine134
ISBN (stampa)9788892107625
Stato di pubblicazionePublished - 2017

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