Upholding a precautionary appeal brought by Michele Vaira himself, the Court of Cassation ruled on domestic abuse under Article 572 of the Criminal Code.
In particular, the Supreme Court held that the relationship between two people who, conducting a clandestine affair, do not create a life project based on mutual solidarity and assistance cannot be equated with a family relationship.
FACTS
1. By order of 20/05/2020, the Court of Bari, reforming the order of the preliminary investigations judge of the Court of Foggia, imposed on G.A. a ban on approaching places frequented by the injured party M.L. within 300 metres and a ban on communicating with her by any means, in relation to the offences under Article 572, Article 61(2), Articles 56 and 610, Article 81(2), and Articles 582 and 585 of the Criminal Code described in the provisional charges.
2. The appeal filed by G.’s counsel seeks annulment of the order, alleging: a) misapplication of Article 572 of the Criminal Code in the absence of a stable cohabitation with the injured party, with whom G. had a lasting romantic relationship limited to sexual intercourse and to whom he had merely “provided accommodation where he could meet her discreetly”, without establishing even occasional cohabitation, in a context in which G. is married and M. herself had a relationship with another man; b) misrepresentation of the evidence in inferring from the evidence gathered the existence of mutual material and moral assistance between G. and M., and in considering proven the beatings of (OMISSIS) in the absence of medical certificates, those connected with the attack of (OMISSIS) based solely on information reported by the patient (while the diagnosis indicates only “traumatic pathology of the limbs”) and others of (OMISSIS) on the basis of the mere statements of L.C. without corroboration, disregarding the fact that the victim’s mother stated that she had never seen bruises on her daughter’s body.
LAW
1. The appeal is unfounded insofar as (in the second ground) it alleges a general misrepresentation of the evidence concerning the beatings and injuries suffered by M., since it develops arguments that amount to challenging certain parts of the body of circumstantial evidence without showing manifest illogicality in the Court’s reasoning.
It must be reiterated that the statements of the injured party – to which the rules laid down by Article 192(3) of the Code of Criminal Procedure do not apply – have evidential value, subject to a verification, more rigorous than that applied to the statements of any witness, of the subjective credibility of the declarant and the intrinsic reliability of his or her account (ex multis: Sec. 2, no. 43278 of 24/09/2015, Rv. 265104; Sec. 5, no. 1666 of 08/07/2014, filed 2015, Rv. 261730). In the present case, the Court of Appeal duly noted that M.’s detailed statements summarised in the contested decision are corroborated: by what the judicial police reported when intervening in the episode of (OMISSIS) (pp. 1 and 6); by the statements of M.’s mother, who, contrary to what is stated in the appeal, recalled seeing a large bruise on her daughter’s face; by the emergency department records of (OMISSIS), which document signs of recent beatings and bruises on the legs, arms and head when (as recalled by the suspect himself) M., an employee of G., was moved from the shop he managed to that of his brother; by the statements of L. (a friend of M.), who reported the various episodes the woman had told him about and her transfer to another shop to avoid contact with G.; and by the medical reports (pp. 3-4) attesting on various occasions to states of anxiety and, in (OMISSIS), bruises and injuries.
2. The appeal is, however, well founded insofar as it disputes that the evidence assessed in the contested decision makes it possible to establish the conditions of mutual material and moral assistance between G. and M.
The offence of domestic abuse presupposes a relationship (between offender and victim) involving a stable bond of trust and solidarity, so that the attacks carried out by the offender – on the body and mind of the victim – violate the person’s dignity by breaking a relationship that should be based on trust and sharing.
That said, for the offence under Article 572 of the Criminal Code to be configured, a way of life marked by relations of solidarity and close ties, arising for various reasons, is sufficient (Sec. 3, no. 8953 of 03/07/1997, Miriani, Rv. 208444); as in the case of a romantic relationship involving such frequent presence in the injured party’s home as to give rise to feelings of solidarity and duties of moral and material assistance (Sec. 5, no. 24688 of 17/03/2010, B., Rv. 248312).
In other words, Article 572 of the Criminal Code applies not only to families founded on marriage, but to any romantic relationship which, through the habitual nature of the relations established, entails the emergence of emotional bonds and expectations of assistance comparable to those typical of the family or habitual cohabitation; as occurs between persons linked only by a de facto relationship which, through the intimate relations and habits of life between them, resembles and is analogous to that of marital relations (Sec. 6, no. 23830 of 07/05/2013, Rv. 256607; Sec. 6, no. 1587 of 18/12/1970, filed 1971, Imbesi, Rv. 116810; Sec. 2, no. 320 of 01/03/1966, Palumbo, Rv. 101563), or also in the case of persons linked by a romantic relationship involving frequent presence in the home, if it is a habitual relationship such as to give rise to feelings of solidarity and duties of moral and material assistance (Sec. 6, no. 31121 of 18/03/2014, Rv. 261472; Sec. 5, no. 24688 of 17/03/2010, Rv. 248312).
The offence of domestic abuse may also be configured where there is a merely de facto family relationship with the victim, which may be inferred – in the absence of stable cohabitation – from the start of a life project based on mutual solidarity and assistance (Sec. 6, no. 22915 of 07/05/2013, I., Rv. 255628); as in the case of shared parenthood arising from the birth of a child which, even in the absence of even initial physical cohabitation, has – the birth not being a merely occasional outcome of sexual relations but having, at least in the initial phase of the relationship, produced a significant emotional bond – given rise to the expectation of a relationship of personal solidarity independent of the legal ties deriving from parenthood (Sec. 6, no. 37628 of 25/06/2019, C., Rv. 276697).
In the present case, the Court gave weight to the stability of the relationship between the suspect and the injured party, inferred from the fact that G. rented a flat for his meetings with M.
However, the defendant – who did not interrupt his ordinary cohabitation with his wife and children – never lived with, let alone cohabited with, the injured party. Instead, he had a clandestine affair with her – which lasted from (OMISSIS) to (OMISSIS) – for which the flat was solely the base for their meetings, without there emerging in any event a life project based on mutual solidarity and assistance (Sec. 6, no. 8145 of 15/01/2020, S., Rv. 278358; Sec. 6, no. 22915 of 07/05/2013, Rv. 255628; Sec. 6, no. 23830 of 7/05/2013, Rv. 256607), or even the expectation that the relationship would develop in that direction.
3. With the exclusion of the offence of domestic abuse, the conditions for recognising the aggravating circumstances referred to in Article 585 of the Criminal Code no longer exist.
It follows that the contested order and the order issued by the preliminary investigations judge of the Court of Foggia on 29/04/2020 must be annulled without referral and, consequently, the precautionary measure imposed ceases to have effect.
ON THESE GROUNDS
Annuls without referral the contested order and the order issued by the preliminary investigations judge of the Court of Foggia on 29/04/2020 and consequently declares that the precautionary measure imposed has ceased. Directs the registry to carry out the formalities under Article 626 of the Code of Criminal Procedure.
