Penalty decree: what to do?
September 14, 2012 by
What is the procedure for decree (penalty notice):
The process by decree is one of the special rites required by the legislator (Articles 459 et seq. Cpp.): A criminal proceeding initiated at your expense, can be defined by penal order when the guilt of the accused appears with a certain evidence if the offenses at issue, you can apply a final sanction constituted solely by the fine, even if imposed in lieu of the sentence (assuming € 250.00 in penalties for each day of detention).
The criminal order is issued by the judge for preliminary investigations at the request of the Public Prosecutor;
Time limits for appeal:
Within days 15 (fifteen) by notification of the decree, the defendant may, personally or through counsel appointed, opposition to penal statement to be filed with the Registry of the Judge for Preliminary Investigations that issued the decree or in that of the Court or the Judge Peace of the place where the person is located;
Oblation is a legal institution through which, in certain cases, you can extinguish the offense complying with an administrative obligation. In short, the offense becomes an administrative offense by paying a certain sum of money determined by law.
The oblation of the case is admissible solely for unlawful mild in severity, in particular:
for misdemeanors punishable by fine only: through the payment of a sum equal to the third part of the maximum penalty prescribed by law for the offense committed (art. 162 cp);
punished for misdemeanors, alternatively, by imprisonment or a fine of: by paying a sum equal to half of the maximum penalty prescribed by law for the offense committed (162 bis);
The criminal offense through payment of the oblation, degrades to a ilelcito amministratico (such as fines Code street) The judge had certain proof of payment, issuing judgment not to proceed with declaring the extinction of the offense;
Why can it be BENEFICIAL RELY ON ORDER
- Defects of form or innocence of the criminal proceedings, to be enforceable shortened or ordinary;
- Possibility ‘to settlement (non-payment of the sum fine, suspended sentence, not mentioned on the record, automatic deletion of any effect of the sentence)
- Statute of limitations
Declaration of the penal OPPOSITION:
In promoting lodged under Articles. 461 and 557 Code of Criminal Procedure the defendant may ask the judge:
- the ordinary trial hearing, on the basis of which we celebrate an ordinary trial with all the right of the accused to show that he had committed the crime or that the crime does not exist, pointing to his acquittal.
- the immediate trial: Judge issues a decree in accordance with art. 456 Code of Criminal Procedure staring at the next ordinary proceedings before the Court having territorial jurisdiction;
- the summary proceedings: Judge fixed by decree of the hearing before him, by giving notice to the parties. In judging, observe the provisions laid down in Articles. 438 et seq. Code of Criminal Procedure;
- the application of the penalty on request: special ritual that involves the agreement between the prosecution and defense on the quantum of the penalty to be sprayed, the judge fixed by decree of the hearing before him by giving notice to the parties. If the prosecutor does not make that choice, that the defendant has not made any request for the notice of opposition, the judge issues a decree of immediate judgment as indicated in paragraph 1.
- The judge, if submitted application for offering contextual opposition, decide on that request before issuing any of the measures mentioned above.
ADVANTAGES OF BARGAINING
The plea agreement is potentially attractive to the defendant (which, remember, you agree not argue anything accusatory hypothesis of the Public Prosecutor) in the event that with the penal order is requiring the payment of a fine to very substantial sums of money (for example, the offense of driving while intoxicated) as:
- ensures a reduced sentence to a third party;
- the claim of any victim is not contemplated in the plea agreement and, therefore, offended by the offense must instruct a civil case (with its time) in which, however, is excluded the effectiveness of the Civil Judgment of settlement (in each If the judge of the settlement – if the victim requests it – may order the defendant to reimburse the legal costs incurred by the victim);
- Judgment of the plea agreement is not a judgment of conviction, or as such can be evaluated in the extrapenale
- when the negotiated penalty is equal to or less than two years, the settlement may be subject to probation (so NOT PAY ANY AMOUNT AND NOT affected NO DETENTION), resulting in the extinction of the offense after five years from the settlement benefits ( two years in the case of fines patteggiate);
- The probation also determines the non-mention of the judgment in the criminal record of the defendant requested by individuals (the so-called “criminal record”);
- there is exemption from court costs to the defendant;
- there are no penalties and security measures (except for obligatory confiscation) but it should be noted that in the case of driving while intoxicated, the judge will apply the sanction (although not covered by the agreement) of the suspension of driving license;
- limits the legal fees that the defendant must bear.