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Daria Pesce

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The application of the punishment on parties' request, i.e. the bargaining , is a special pre-proceedings procedure, starting over an agreement between parties (the inquired and/or defendant and Public Prosecutor) concerning not only the rite but also the punishment to adjudge. The bargaining rite is favoured by the code because it brings great proceedings economies and potentially satisfies the indictment's requirements (implicit admittance of guiltiness since the acceptance of punishment).

Specially to induce the defendant to require or to accept this rite, the code establishes a set of provisions-premium; it subordinates to the bargaining rite requirement the grant of the punishment conditional stay, punishment reduction, proceeding charges payment exoneration, not said benefit on certificates of the criminal records-office issued on the concern's request, crimes abatement and abatement of all crime penalty effect after a lapse of a certain spatium temporis, but in the case of voluntary evading the punishment, unsubjection to additional punishment or to security measures, but confiscation, ineffectiveness in the related administrative and civil trials .
The norm formulation has planted great interpretative problems just in order to the of the bargaining sentence as well as in order of the extension of the i.d. crime effects of the sentence.
The late pronounce about this matter is the sentence of the Court of Cassation -United Sections, on February 26 1997, n.1 (issued by Riv. pen. 1997, 571) according to whom: 'Granting the sentence delivered according to the procedure therein at art.444 and following c.p.c. does not has the feature of a condemnation sentence, lacking the judicial assessment of the occurred fact-crime, it cannot be give enough right to revoke, on the basis of the art.168, paragraph 1, n. 1, c.c., the former granted punishment conditional stay.
All the same, in the opinion of the sentence, the Court of Cassation-United Sections has gone further into details stating that the delivered punishment, depending on bargaining, can legitimately forbid a following punishment conditional stay, for, 'adjudging the punishment' is under this profile, legitimately equalizable to a condemnation sentence.
According the Court of Cassation-United Sections, on May 8th 1996 n.11, issued by Cass. Pen. 1996 II, 3579 has furthermore stated precisely in the sentence opinion that: 'the judge of a bargain is compelled to adjudge the special sanctions established by special laws, which, since furthermore their administrative and atypical nature, do not postulate a crime responsibility trial, but follows by right the sentence examined, since the equalization, for the compatible to its peculiar nature effects, to the condemnation sentence Applying those principles, The Court of Cassation has asserted that, for example, '... by the means of a bargaining sentence an administrative punishment can also be delivered and it must be delivered the accessory administrative sanction of the driving licence stay, stated as compulsory measure by the same herein at art.189, paragraph 6, being no remarkable that it is not mentioned in the agreement between parties (Crime Cassation section II, on may 9th 1997, n.6138 issued by Arch.nuova proc.pen.1997, 452).
Such a trend has been followed also by the merits jurisprudence: 'With the object of the forfeiture of the charge of a town-councillor, according to art.1 paragraph 4 fifth L. Jenuary 18th 1992 n.16, to the punishment crime sentence is equalizable the sentence delivered by the Criminal Judge on the basis of a bargaining according to art.444 c.p.c.' (Court of Monza, March 2nd 1996, issued by in Foro it., I, 967).
Concerning disciplinary procedure on charge of professionals, the sentence delivered by the Supreme Court assumes a basic rôle, according to whom: '...the evaluation of the gravity of charge, both under the profile of the negative incidence over the prestige of the professional order and the choice of the sanction to be delivered (including the Professional List cancellation) falls within the merits evaluations committed to the institutional competence of the professional organ and so it evades the re-examination when applying to the United Sections of the Court of Cassation, being adverse the National Council decision in order to the fact that the above mentioned applying is admitted in order to the rightness and congruence of the opinion of the sentence, being quite possible to evaluate in order to this purpose, within the disciplinary session, even in the context of the other outcomes, the sentence which has determined the punishment agreed by the parties, according to the 2° paragraph of the art.444 c.p.c. specially when it has took place, in the crime session, admission of the facts by the professional.' (Principle emitted about disciplinary proceeding on charge of an architect) (Civil Cassation - u.s., July 9th 1997, n. 6223, issued by Giust.civ. Mass. 1997, 1169).
In the jurisprudence of the jurisdictional sections of the Council of State the matter about the equal effectiveness of the sentences coming from the bargaining rite and the ones coming from ordinary crime judgement is a very disputed matter, regarding specially the disciplinary proceeding against public employers.
According to a certain trend, in fact, the bargaining sentence cannot be deemed a condemnation sentence, for it assumes an assestment by the judge, in order to define the fact juridically, the responsibility or punishment-subjecting of the accused ant the extenuating and aggravating circumstances, while the requirement of bargaining involves a responsibility avowal for conclusive facts, considering anyway that it does not have effectiveness in civil and administrative trials, unlike the irrevocable punishment sentences ex art.651, c.p.c. It descends that it is not employable as an implicit responsibility sentence and as a presupposition in order to the disciplinary proceeding ex art.9, l.n.19 -1990. but at least it concerns the case falling under the discipline thereof at the U.B.L. for civil employees of State (D.P. Jenuary 10th 1957 n.3), generally considered, concerning all public employment types.
Furthermore, this uselessness does not concerns the sole administrative trials, but it falls also on the competent administrative authority to adopt a disciplinary measure - even if different in order to the substantial content of the judge's and P.A. voluntary acts. -. In the sense that, in the administrative sector, the punishment sentence (and the bargaining one) has a mere value of notitia criminis, which compels the P.A. to issue a disciplinary proceeding, employing (if it is the case), the outcoming probe material, without the possibility to infer any implicit or explicit evaluation about merits of the disciplinary matter.
The Council of the State VI section, May 16th 1996, n.681 issued by Riv. giur. lav. 1996, II, 379 is oriented alike, asserting that: '.... the autonomy of the disciplinary trial as regard the crime trial, ended with a bargained sentence ex art. 444 2° paragraph 2 therein, imposes the completion of the required assessments by the administration in order to track down an exact disciplinary responsibility of the dependent concerning the facts he is accused of in crime session'.
But, it is quite true that : 'In order to the public employer destitution measure it is enough that the gravity of the fact, which he has been punished for, by the means of a sentence delivered according to art. 444 of the new c.p.c. comes from the same sentence, even if it is improperly indicated in the disciplinary acts the 'nomeno iuris' of the crime case' (Council of the State VI section, November 30th 1995, n.1338 issued by Foro amm. 1995, 2704 s.m.) Furthermore the Council of the State VI section, August 24th 1996, n.1067 (s.m.) asserts that: 'The measure of disciplinary removal of public employees is enough motivated with the call to the intervened bargaining sentence, taking in account that it is a condemnation sentence based over an assestement of responsibility and that the requirement of appliance of a punishment brings only the release of the faculty of denying charge .
' But even taking not in account those sentences, which are an extensive interpretation of the norm saying, what is most important is that the disciplinary proceedings are not included within the civil and administrative-jurisdictional trials, regarding which the legislator excludes the bargaining sentence to have immediate effectiveness. (Council of the State VI section, October 16th 1995, n.1140 issued by Studium Iuris 1996, 626) e than, '... full relevance in order to the disciplinary trial against public employees must be attached to the bargain sentence '... considering that the obligation of the administrator to verify, alleging them, the gravity of facts on charge in order to the forward development of the tasks concerning the labour agreement.' (Council of the State VI section, October 16th 1995, n.1149 issued by Foro amm. 1995, 2284).
Moreover the jurisprudence trend which tends to limit the effect of the equalization of the bargaining sentence to the ordinary condemnation sentence, after all states as the sole condition the requirement according to which the administration proceeds on reconstruction of facts that are the basis of the proceeding for the autonomy disciplinary proceeding (Council of the State VI section, May 16th 1996, n.681 issued by Foro it. 1996, III, 371; Council of the State I section March 2nd 1994, n.199 issued by Cons.Stato, I, 302).
After all, in the light of the examination hereabove, I deem that in the examined case it must take place the stay required by art.30, I paragraph, herein at the Collective Labour Agreement - Physician Managing Area, undersigned on 5.2.1996 as the consequence of the call therein at the art.15 of the L. March 19th 1990, n.55, letter b), which refers to textually 'Who has been condemned, even not definitively, for the crimes stated at the articles 314,316,316 second, 317,318,319,319 third, 320 c.c.'.
In fact, in this case, I deem it may result a full equalization between the bargaining sentence and the condemnation sentence, falling the obligatory stay within those 'special sanctionatory measures provided by special laws', that follows by right as crime consequences and which are compatible with the bargaining sentence (See Court of Cassation - U.S. Mayt 8th 1996 recalled hereabove), and coherent with the nature of a prevention measure.
In fact, the gravity of facts or behaviours, exercising one's own profession, as it results in the crime proceeding acts and the oral and documentary sources constitute elements able to perform an autonomy evaluation of the gravity of facts by the Body, to base the further measure of renunciation of the labour contract by the Body for just cause.

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