(by Giovanni Aliquò - SFP senior executive of the State Police) Domestic violence affects more and more foreign women. Also in this case the warning of the commissioner can have an important preventive and dissuasive effect
The quaestor, as a public security authority, has over time assumed a role of absolute and central importance in the field of crime prevention. Effective, if well oriented, are the powers that the law entrusts him, in particular, to contain gender violence, a widespread phenomenon, especially in the insidious form of domestic violence.
In the final report of the parliamentary committee of inquiry on femicide, as well as on all forms of gender violence (6 February 2018), the pervasiveness of the phenomenon was well focused, observing, among other things, how "domestic violence" in Italy ", In its most aggressive forms, affects foreign women to a considerable extent, probably due to the vulnerability induced by linguistic, cultural and legal differences; it was also highlighted how, in contrast with the gradual containment of the phenomenon, the worrying scourge of "assisted violence", or of minors forced to witness violence committed in the family, grew.
Particularly heinous are those crimes that, inspired by a subculture of sexism and / or on a background of patriarchal dominance, deny the woman the rights of freedom and the same life: over 70% of homicides committed in the family has as a victim the woman. In application of the 2 and 3 articles of the European Convention on Human Rights, the jurisprudence of the Court Edu has repeatedly stressed that, where there is a danger to physical integrity, children and other vulnerable persons - among which there are victims of violence domestic workers - "have the right to the protection of the State, in the form of effective prevention, which protects them from forms of serious harm to the integrity of the person". Their defense is an essential objective for the State.
To consciously tackle the dangerous phenomenon of domestic violence, a strong cultural commitment is indispensable, which must be supported by a particular effort of knowledge and data analysis (for the 2018 ISTAT has announced the release of a new statistical study while the Protocol Eva - Acting violence examination - of the Public Security Department supports the most effective and rapid assessment and management of the risk of lethality, gravity, recurrence and recidivism), from the knowledge of the territory and from a strong ability to integrate a complex multidisciplinary network and multilevel for information and victim support.
Of this network for the prevention, the emergence and the contrast of the phenomenon are part of the service of the anti-violence number 1522 (always active 24 hours on 24 and free with operators in Italian, English, French, Spanish and Arabic, organized by the Equal Department opportunities of the Presidency of the Council of Ministers), the Oscad (the Observatory for security against discriminatory acts of the Ministry of the Interior), health services, anti-violence centers, schools, universities and, as a social prevention authority and police, the commissioner.
The essential regulatory framework for the prevention of domestic violence is contained in the framework of the so-called Istanbul Convention of 11 May 2011 (ratified by Law, 27 June 2013 77), of the decree-law 23 February 2009, n. 11 (converted with amendments from 23 April 2009 law, 38 law) and 14 decree-law 2013, n. 93 (converted with changes from 15 October 2013, No. 119).
The article 3 of this last norm introduces a new "Prevention Measure for Domestic Violence Conduct" into the legal system: the quaestor's warning.
It should be clarified immediately that domestic violence means "one or more acts, serious or non-episodic, of physical, sexual, psychological or economic violence occurring within the family or family nucleus or between persons linked, currently or in past, a marriage bond or an emotional relationship, regardless of whether the author of such acts shares or has shared the same residence with the victim ". The definition of the law incorporates, in part, the Istanbul Convention but, in part, it also follows the long jurisprudential path in the matter of family mistreatment, referred to in Article 572 of the Penal Code.
Of particular importance, alongside physical and sexual violence, is the alternative emphasis taken on psychological and economic, consisting of harassment aimed at depriving the victim of his serenity and independence to destabilize and humiliate or even to force it to tolerate unjustified restrictions of its liberties .
Equally interesting is to consider that the concepts of family, family and emotional relationship, in the constant change of social relationships, allow us to intervene, according to the rationale of the law, on a wide range of positions worthy of protection: they do not necessarily fall into only those of marriage or monogamous coexistence between a man and a woman, but also the other "civil unions" recognized today and, according to the jurisprudence of the Supreme Court, even the same "clandestine relations" that are (or have been) to a certain extent characterized by continuity and mutual trust.
It also seems appropriate to emphasize that the relationship between the abuser and the victim does not need to be restricted to the traditional "affective" relationships of the couple, but can extend to cases of cohabitation or emotional relationships of another nature, provided that within the family or family nucleus: domestic violence can also be hypothesised against children or a father-in-law towards a daughter-in-law or a cohabiting domestic worker.
An absolutely significant aspect of this warning - which distinguishes it from that for persecutory acts referred to in article 8 of the legislative decree n. 11 / 2009, of which the following is compatible with the procedural scheme - it is necessary that a request from the victim is not necessary to activate the procedure: the commissioner proceeds on the basis of a report whose author, if it is a private matter, has guaranteed anonymity by law (except in the case where the report itself is not fraudulently unreliable).
The commissioner, with discretionary assessment, initiates the administrative procedure, paying particular attention to the possible "symptoms" of a wider picture of domestic violence: it is essential that his preventive, dissuasive and precautionary action anticipates the protection of victims, both by focusing and interpreting the slight but current and significant facts that are the subject of the initial report, both by valuing previous information or those made through officers and public security officers. The goal is to cross the wall of indifference and overcome any omissions, even when faced with apparently silent violence, to avert the risk of their degeneration in episodes more dangerous for the safety and life of the victim.
In this regard it is worth remembering that the jurisprudence is now well established in affirming that the alternation of periods of violence and "normality", where current events exist, does not exclude the possibility of adopting the warning as a preventive measure, because previous events they may be taken into account in the reconstruction of the framework of domestic violence, without the discontinuity of the conduct being objected to.
If the "sentinel symptom" required is a current fact that, even if only abstractly, can be due to the crimes referred to in the articles 581 cp (beatings) and / or 582 cp, second paragraph (very slight injuries), in the consumed or attempted form, however, the assumption of concordant information from the investigative bodies is also necessary. Objectively we must reconstruct and contextualize current episodes within a framework of similar behavior.
Normally, any persons informed of the facts must also be exited, also notifying the abuser of the notice to initiate the procedure pursuant to art. 7 of the law n. 241 / 1990. Notice and hearing of the abuser can only be omitted if, on the basis of findings of unequivocal facts, there are real urgent reasons, to be explained in the justification of the provision. The quaestor, as the technical-operational authority at the center of the territorial network of the public security administration, also linking up with other institutions and public and private bodies, in the investigation has the possibility to make use of important information resources, especially where it opportunely with the mayors, the health system and the anti-violence centers.
As in any preventive proceeding, it is not necessary that the facts established constitute the source of an ostensible evidence in a criminal trial, but it is sufficient that the elements collected are generally coherent and reliable, and therefore suitable to establish the reasonable conviction of the commissioner about the hypothesis of the existence of the domestic violence and the necessity of preventive intervention. Since this is a measure of personal prevention, the de facto elements required to justify the warning, according to the administrative jurisprudence, may also be below the level of those serious signs of guilt which, instead, must exist for the criminal court. provision of precautionary measures.
It is essential that, at all stages of the procedure, in addition to the right to the defensive participation of the abuser, measures are taken to safeguard, according to the principles of Article 18 of the 2012 / 29 / EU Directive, victims from the risk of victimization secondary and repeated, protecting their dignity and guaranteeing them from risks of intimidation, retaliation, emotional or psychological damage resulting from inappropriate contact with the abuser or his supporters.
The admonition of the commissioner - who must always have a logical and coherent motivation also in relation to the choice of procedural investigation - consists of a preventive, dissuasive and precautionary notice. The content monitorio must never be generic, but it must be translated into real behavioral prescriptions that, although limited to substantiating precepts already already provided for by the current regulations, are acceded, case by case, to the person to whom the measure is intended, indicating also in short, the possible consequences of his behavior that does not comply with the law. At the same time, for purposes of social prevention, the commissioner must notify the abuser about the existence of special support centers where they can find psychological help to avoid falling into violent and antisocial behavior.
The commissioner, adopted the warning, is bound to take measures that limit the detention and possession of weapons, ammunition and, although the law does not expressly provide for the explosives. For domestic violence (both suffered and assisted) involving minors, pursuant to the combined provisions of the articles 1, paragraph 1, letter c), and 4, paragraph 1, letter c, of the legislative decree n. 159 / 2011, the quaestor may also request the special surveillance measure from the competent MP court. For all persecutory acts, however, the prevention measure is expressly envisaged, with a legal category of qualified hazard, by the article 4, paragraph 1, letter i-ter) of the legislative decree n. 159 / 2011, modified by the article 1, paragraph 1, letter d) of the law n. 161 / 2017 (for the first application, at the request of the Quaestor, MP Milan court, decree No. 58 of 9 October 2018).
A particular attention, for what has been said, must be dedicated to domestic violence that is consumed in certain immigrant communities and that are often the product of (sub) cultures present in some countries of origin, the more difficult to eradicate as much defects the real social integration.
With pretexts of traditions, rites and religious precepts and family obligations, sometimes women are forced to renounce freedom and constitutionally guaranteed rights, forced to the use of unwelcome rituals, humiliated and limited in their relationship life, induced to forced marriages and even mutilations of the genitals. Each of these behaviors, which concur a woman's freedom of self-determination, often combine phenomena of domestic violence of apparent minor importance, which however may be a symptom of the ongoing pathology and which, however, relegate the victim to subaltern integration.
In these cases the tools available to the commissioner are extended. Besides the admonition, for the adoption of which the professionalism of the Immigration Offices and the network of profitable relations with qualified representatives of the communities will be of informative support, there are different tools to steal the victims from the spiral of fear, guaranteeing them, even if in a position of irregular stay, the possibility of being able to stay in our country.
A recent address of the Court of Cassation (see Civil Section I, sentence no. 28152 of 23 June - 24 November 2017), for example, by reforming decisions of different sign, applied Article 3, lett b) of the Istanbul Convention to cases in which a foreign citizen has not been assured, in her country, effective protection from domestic violence: the Court has traced this case back to the context of inhuman and degrading treatment, to which art. . 14, lett. b), of the legislative decree 19 November 2007, n. 251, recognizing the right of the immigrant to subsidiary protection.
The article 4 of the dl n. 93 / 2013, revealing the dlgs 25 July 1998 n. 286 (Consolidated Text on Immigration), also introduced the article 18 bis, which provides for the issuance of residence permit for "special cases" (so renamed by the recent dl 4 October 2018, No. 113, still in progress conversion) to the foreign victim, in Italy, of persecuting crimes or due to a domestic violence. The victim, denouncing the abuser, must never be afraid of being expelled, being denied to the violent any screen.
The permit will allow the victim to integrate and work, thus ensuring his independence from the maltreating person. For a fully effective protection, as a matter of fact, it would be appropriate for the law to expressly provide, where necessary, support for victims through a specific program of assistance and social inclusion.
Equally clear the provision of the article 4 of the legislative decree n. 93 / 2013 against the foreigner who becomes the author of domestic violence.
In particular, against the convicted foreigner, even with a non-definitive sentence, including that adopted following the application of the penalty upon request under Article 444 of the Criminal Procedure Code, for one of the crimes referred to in the articles 572, 582, 583, 583-bis, 605, 609-bis and 612-bis of the penal code or for one of the crimes provided for in article 380 of the criminal procedure code, committed in domestic violence, revocation of residence permit may be ordered and the expulsion pursuant to article 18-bis, paragraph 4-bis, of the legislative decree 25 July 1998, n. 286.
In the presence of convictions for "impeding" crimes, the jurisprudence acknowledged that, for the Public Security Authority, the provision is essentially bound in the an and quid: assessed the absence of a family interest to be protected, due to its dissolution or for only formal existence of the relative restraints, the security needs that prevail in previous serious and reprehensible conduct of domestic violence prevail.
The jurisprudence, moreover, believes that it is also possible to proceed with the expulsion of a foreigner warned for domestic violence (but not yet condemned for "impeding" crimes referred to in article 4 dl n. 93 / 2013), requesting, however, to the Authority an even more thorough preliminary investigation, especially with regard to the requirement of the current danger of the abuser.
The same rigor against the perpetrators of domestic violence and mistreatment is required at the time of the resolution of the eventual request for the conferment of citizenship to the admonished: such antisocial manifestations, together with other elements, negatively affect the discretionary appreciation of the Authority about the stable integration and integration of the foreigner and, according to the administrative jurisprudence, fully legitimize the rejection of the petition.
In conclusion, even in the complexity of the social dynamics connected with the phenomena of domestic violence in foreign communities residing in Italy, the commissioner, as responsible for the exercise of essential preventive powers, is recognized as the role of guarantee authority for the respect of principles fundamental principles of the Constitution and for the protection of the liberties and rights of persons.