Rules of the Road: the court has the power to determine the fine
The appellate court's finding of infringement to the minutes of road traffic has the power to determine, even in the absence of a request to that effect Public Administration, the amount of the penalty to be imposed on the wrongdoer (or jointly liable) before the measurement between the minimum and maximum amount prescribed, according to its free conviction.
They established the United Civil Sections of the Supreme Court in Case No. 25 304 filed on December 15 last year.
They claim the united section that the question submitted to judicial review is new. The judges stressed that the ruling of the Supreme Court has previously held that, even in the event of rejection of the opposition concerning the legality of the contested decision, the court is entitled to determine, on the best way for the opponent, the measure of punishment, acknowledging about the comments made by the person concerned, even where the PA is required by law, to determine the penalty with a limit of not less than a given threshold (Cass. 12748/1999, No. 5070/2000).
It was also considered (Cass. 18811/2003) in the judge the fairness of the penalty is not properly called to review the reasons for the on this point, but may determine the measure itself by directly applying the criteria of art. 11 of L. 689/1981, but still in the opponent's acceptance of the corresponding application (Cass. 21486/2004). The
compelsso of jurisprudential principles to be inferred from the observed excursurs - say the United Sections - can not move but simply the idea of \u200b\u200bopposition to the minutes: in fact, the same is not given any penalty, but is rather a mechanism for termination mentioned sx lege if the offender chooses to sacrifice and if the same can not bring an action in terms (and fails to pay a lesser extent).
The court, therefore, in the case of non-operation of the appeal, decide the amount of the penalty prescribed by law throughout its range has the criteria of Art. 195, second paragraph of CDS, he then determines, applies and imposing the administrative fine.
The Supreme Court also recalls that when she herself has rejected appeals against the opposition in the minutes has never exercised, even as it had no done so the trial court, pursuant to art. 384 CPC, the power of determining the penalty, nor has he put the instruments for this purpose the administrative authority.
Except that both may be considered unconstitutional to ascrtto the rule that, for the proposition of the opposition, provided for the payment of prior security (Constitutional Court No 114/2004) since the link between the court's power to set the size of the fine was related to the provision of security only for profiles of procedural detail, is to end - says the sentence - in the sense that paragraphs 5 and 6 of art. 23 of L. 689/81 constitute the legal basis of the power of the court to quantify the financial penalty in excess of the third part of the maximum fine, or, if later, twice the minimum (maximum allowed in the event of failure to bring the application) , since it is expressly invoked by the law (see the aforementioned art. 7) the free conviction of the court itself, which would be meaningless if it were considered that there was a flattening of the minimum amount prescribed. A
albeit indirect confirmation of this view, to the Court, can be drawn from the order n. 23/2009 Cstituzionale Court, where he emphasizes "the significant role played to the interests of overall consistency and functionality of the system of investigation and prosecution of traffic offenses" of the possibility due to the magistrate to end, even in an amount equal to the minimum prescribed by law, the amount of financial penalties imposed in case of rejection of the appeal. According to
of Cassation, the Constitutional Court by that statement with any evidence he considered the possibility for the judge, according to its free conviction, to determine the amount of the fine in a size between the minimum and maximum amount prescribed, because not be explained, if not, why the free conviction of the judge could only be implemented in Bonami partem.
The United Sections, therefore, have formulated the principle of law that in case of opposition on record, the judge, according to their conviction, the penalty can be determined by between the minimum and maximum amount prescribed.
The question related to whether or not a request from the PA for the application of the sanction in excess of that provided for non-action, in the opinion of the Supreme Court issue, which involves the issue on the principle under which characterizes the civil trial, can only be resolved in the attitude of the system resulting from the application of the law 689/81 in this regard: the need for send an explicit request for the amount of the fine by the PA can not be considered consistent with the different positions of the parties in opposition: if the ' opposing party has to rely on specific reasons (also on the extent of the penalty) his complaints, the administration may be limited to reaffirm the legitimacy of its actions.
Since the point of free conviction of the judge in determining the penalty means that, rejecting the opposition and in the absence of predetermined rules, they can also apply the penalty of its own motion considered adequate, of course, between the minimum and maximum amount prescribed must be said that in case of opposition on record, the court may applied, even ex officio, a penalty greater than that required for non-action, according to its free conviction and, of course, within the limits prescribed by law.
Report by Marco Martini
http://www.negozioperleimprese.it/
0 comments:
Post a Comment