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The judicial error consists in the identification, through the extraordinary recourse to revision (see articles 629 ss c.p.p.), of the concrete injustice of a definitive sentence of conviction.
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It is essential to know that it is the Constitution itself that requires legislation to implement the circumstances and procedures for the remedy of judicial mistakes (see Article 24, paragraph 4 of the Constitution).
The fundamental requisites for the remedy of the judicial error can be both positive and negative (article 643 c.p.p.).
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The positive requirement is absolution during the audits; the revision conditions are mainly the obstacle between criminal evaluations, the obstacle between penal, civil or administrative evaluation, the presence of other evidence (see art.630 c.p.p.).
Negative requirements are: first of all, the person who was acquitted during the audit must not have committed a cause for malice or gross negligence to the judicial error; moreover, the right to the remedy is for the one for whom the detention is transformed into a sentence to be served for a different offense.
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The assessment of damage due to judicial error is mainly linked to a double order of causes: first of all the generic notion used by the legislation in indicating the criteria for determining the nature of the remedy and, secondly, the clarification that, in fact, on a literal level, one can not speak of reimbursement of damage due to judicial error, but of compensation.
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It is in this view that recourse is made to the jurisprudence on which "the remedy of the judicial error, such as that for unjust imprisonment, has no character of reimbursement of the damage but only of compensation with respect to the social solidarity requirements for those who unjustly he was deprived of his freedom and was punished ".
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In these terms, the remedy for the judicial error (with indemnity and non-reimbursement) gives an answer to the intention to prevent the injured person from ensuring the verification of the presence of the subjective event (fraud or fault) of the physical subjects they have carried out, both the assessment of the nature of the damage he has suffered.
The fault lies in the laziness, recklessness or incompetence of those who act, that is in its violation of legislation, legal systems or matters.
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The culpable homicide (Article 589 of the Criminal Code), therefore, occurs at the moment in which someone, through fault, causes the death of a person. In such circumstances, those who carry out the offense, while operating with intent, did not become aware of the effects of its act.
The pre-intentional murder, while, happens when the act or omission takes place a risky event heavier than the one desired by the one who acts, and which therefore goes beyond one s will. Homicide murder (Article 584 of the Criminal Code), therefore, is accomplished at the moment when a person, by carrying out actions aimed at injuring a subject, or causing injuries, unconsciously causes death.
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Therefore, while in the culpable homicide the fact is not desired by those who act and it happens by fault, in the pre-intentional murder the fact that it manifests itself is heavier than that desired by those who act.
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Ultimately, the attempt (Article 56 of the Criminal Code) is manifested when a person commits suitable actions, unambiguously aimed at carrying out an unlawful act, but the same is not committed because the fact desired by the person has not occurred , or because the event has not been completed.
The attempted murder, therefore, takes place when a person commits suitable actions, stretched unambiguously to cause the death of a subject and is regulated by art. 56 p.p. and the art. 575 penal code.
The three crimes differ from each other because: a person dies in the culpable homicide but the guilty had no intention of killing him (as when a pawn is hit); in the pre-intentional murder a person dies, but the guilty one only intended to hurt him, but not to kill him (as an assault that happens unconsciously in the death of the offended subject); in the attempted murder, while no one dies, even if the guilty person intended to kill the subject and tries to do so in an unambiguous manner with suitable actions (such as stabbing a subject).