Abuse, arrest even if the perpetrator is absent but the victim has obvious signs

Green light for the validation of the arrest in quasi-flagrante delicto even if the alleged perpetrator of the ill-treatment is absent, but the woman has evident signs of violence and he is found, within a very short time, at his mother's house. The Court of Cassation rejected the appeal against the validation of the arrest in flagrante delicto decided by the Judge for Preliminary Investigations, on the charge of aggravated ill-treatment, because committed in the presence of the minor children and against the cohabiting woman. The arrest was invalid for the defence because it was carried out in the absence of the conditions of flagrante delicto or quasi-flagrante delicto, since the applicant was not in the flat when the Carabinieri arrived. Only later had he been traced home by his mother, as his wife had indicated. The arrest was also unjustified because there was no element of habitual conduct, which is necessary for the offence of ill-treatment, since at most it had been a single episode. Both the arrest and the prohibition to approach the offended person were therefore unlawful.

The Cassazione, however, confirms both measures. The judges of legitimacy acknowledge an error, made by the Gip, who had improperly referred to the hypothesis of deferred flagrancy, introduced by the new Red Code (law 168/2023). A rule that allows, in the crime of ill-treatment, to proceed to arrest in flagrante delicto, those who are nailed to their responsibilities byphotos or videos, which unequivocally demonstratethe facts and their author. The condition is, however, that the arrest is made no later than the time necessary for his identification or in any case within 48 hours of the fact itself. Specifically, the woman had shown a file with 30 photographs of herself in which the signs of violence were evident. But these were photos taken at different times.

For the Court, however, the perception that the officers had had is sufficient. The judicial police had found the lady locked with her children in thechildren's room, 'in a strong state of agitation and in tears, with conspicuous signs of aggression on her face (tumefactions, scratches, clotted blood), as well as the ransacked flat premises," the sentence reads, "with on the floor a hair 'snatched from the offended person by the fury' of the suspect and empty alcohol bottles strewn everywhere". And the alleged aggressor had been tracked down 'a few minutes after the events'. An arrest, therefore, 'executed in very close chronological succession with the occurrence of the facts, which were clearly attributable to him'. One of his own statements also weighs against the applicant: in his opinion his wife had broken his nose - an injury of which there was no trace - but the accusation was an implicit admission that there had been physical contact. The argument of a sporadic and not habitual event does not pass either. And this time, to prove the systematic nature of the violence, the photos that the officers had seen, combined with the victim's accounts of violence and harassment by her spouse over a period of years, were useful.