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The warranty notice is governed by art. 369 of the Italian Penal Code, is a notification in writing sent by means of a letter recommended by the Public Prosecutor to both the individual object of the investigation and the injured party, and is intended to ensure the right of protection enshrined in the Constitution.
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With the notification of guarantee, in fact, the Public Prosecutor communicates to an individual with respect to whom investigations are being carried out in relation to a situation that according to the law constitutes unlawful.
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This notification must include the explanation of the legislative provisions that are considered transgressed, the day and the place of completion of the offense and the exhortation to proceed with the appointment of a lawyer of trust.
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If the inquisitor does not care to appoint an attorney, the public prosecutor will take care of one of his office.
The norm n. 60 of 2001, has introduced a further protection established by art. 369 bis c.p.p .: is the notification to the individual investigated on the right to defend themselves. The Public Prosecutor, as prescribed by the recent provision, when he must execute the first phase in which the lawyer has the right to participate, must notify the notification of the designation of the lawyer to the inquisitor and must give him a set of explanations to protect the right of protection to a greater extent.
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This notification is established under penalty of disability of the following stages and notifies the inquisite all the duties and rights related to the technical protection. It must include: 1. Communication of the mandatory nature of technical protection in criminal proceedings;
The data of the lawyer of office and his domicile and telephone number; 3. information on the possibility of appointing a trusted attorney with the recommendation that, in his absence, the inmate will be protected by the person in charge of the office;
the warning of the duty to compensate the professional attorney, unless the investigated person obtains the acceptance of the defense without compensation; 5. notification of the requirements for defense authorization for non-owners.
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The reasons for non-prosecution are those particular contexts in which a behavior, forbidden and sanctioned by the penal legislation, does not represent an illegal act due to the existence of a provision that legitimizes it or, in some cases, orders it; they are explicitly established by the law and are those that follow:
the legitimate defense (art.52 c.p.); the state of need (Article 54 of the Italian Civil Code); enforcement of the right (Article 51 of the Italian Civil Code); the agreement of the person entitled to the right (Article 50 of the Civil Code); compliance with an obligation (Article 51 of the Italian Civil Code).
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The legitimate defense, (article 52 c.p.) is a reply to an attack allowed by the law provided that it has some characteristics: 1. the subject of the attack must be a right;
The infraction or challenge to the same must be incorrect, ie contrary to the law; 3. When replication occurs, it is essential that it is in a dangerous situation; 4. Replication must be indispensable, that is, one can not act in another way, and must be related to the attack, ie the right infringed by the reply must not be more relevant than the law infringed and / or attacked with the primary outrage.
In any case, replication is permitted not only to protect a specific right, but also for the benefit of third parties. In such cases, the law attributes to the individual who performed the action a type of guarantee allowing him to respond to an affront with a gesture that habitually, if there are no such requirements, would be assessed illicit by the Penal Code.
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The state of need (Article 54 of the Criminal Code) expels the feasibility of the person who made the gesture, for being induced by the need to protect himself or third parties from the concrete risk of damaging the individual, a risk unintentionally caused by him .
In essence, for there to be the state of need it is essential that an individual, without being responsible, is in the fundamental situation of carrying out a fact-wrong in order to save his own existence or that of third parties.
The case that he teaches is that of the shipwrecked person who throws a person who has attached himself to the same shelf to protect himself, but who can support only one subject.
This reason for non-prosecution has some elements common to the legitimate protection and the most relevant discrepancies are those that follow: first, since there is no assailant of any right, as the circumstance took place without anyone s responsibility, a subject is injured who does not has caused no risky condition; moreover, where the reply made with legitimate defense can be directed to protect every right, in the state of need the gesture can only tend to avoid the concrete risk of a heavy damage to the individual.