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THE ABUSE OF OFFICE AND THE REFUSAL OF OFFICE DEEDS
The official defect and the refusal of office actions are crimes addressed to the Public Administration bodies made by Public Officials or by those responsible for a Public Function.
The office vice, regulated by the art. 323 of the Italian Code of Civil Procedure, if a Public official or a person in charge of the Public Function, exploiting the professional task, intentionally procures, to himself or to third parties, an illegitimate asset benefit, or an illegitimate damage to third parties.
The defect, moreover, must consist in the transgression of laws or regulations, or in the non-observance of the duty of non-participation of those who benefit in the episode of an advantage for themselves or for relatives or related persons.
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Therefore, in order for such an offense to occur, such factors must exist: 1. the intent to obtain for themselves or for third parties an illegitimate asset benefit or to provoke illegitimate damage to third parties; 2. the transgression of a specific normative or regulatory disposition, or the non-renunciation of a personal benefit or of a relative or similar or in the other established hypotheses; 3. The non-compliance or lack of the previous step must be the reason for the unjust benefit or immoral damage.
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The waiver of official actions, governed by art. 328 of the Italian Code of Civil Procedure, if a Public official or a Public Functional employee, consciously rejects the adoption of a gesture that, for reasons of integrity, public integrity or health reasons, must be committed without referrals; moreover, if the Public official or the heads of Public functions does not commit an action requested, within 30 days, or does not justify the postponement.
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Therefore, even though in both cases the crimes that can be committed only by the public official or by the person in charge of Public Functions (so-called own crimes), the discrepancies consist in the fact that with the office flaw the offender exploits his charge and commits an action provoking, to itself or to third parties, an illegitimate patrimonial benefit or an incorrect damage, with the renunciation of official actions the guilty one escapes from committing a necessary action.
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The accused enjoys a real individual right to obtain a fair compensation for the precautionary surveillance suffered illegitimately (Articles 314 and 315 of the Italian Civil Code).
This right has been introduced by the criminal procedure code of 1988 and implements a specific constraint imposed by the European Convention on Human Rights (see Article 5, paragraph 5, C.E.D.U.).
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The request for compensation is forwarded by the accused after the acquittal verdict is final and on the application the Court of Appeal has the power to decide with a procedure in the council chamber.
The starting point of the right to have the right compensation lies in the illegitimacy of substance or form of the precautionary surveillance suffered.
The real illegitimacy is sanctioned by the art. 314, paragraph 1, c.p.p. and if there is an acquittal with a definitive verdict, since the crime does not exist, for not having carried out the action, since the gesture is not illegal or not expected by the legislation as such.
It is essential to consider that, according to the following paragraph 3 of the art. 314 of the Italian Penal Code, the judgment of non-necessity to continue and the sanction for dismissal are considered equivalent to the acquittal verdict.
The illegitimacy of form is regulated by paragraph 2 of the art. 314 p.p.p. and if the precautionary surveillance was adopted unlawfully, that is in the absence of the requirements of feasibility enshrined in articles 273 and 280 c.p.p., not considering the verdict of acquittal or penalty.
In this regard, important innovations have been introduced by law 16 December 1999, n. 479, so called "Legge Ca", whose article 15 has modified to the art.315 of the code of penal procedure.