The crime committed by the person who claims the false or denies the truth is silent, in whole or in part, what he knows about the facts on which he is questioned What is false testimony
- The standard
- Protected interest
- Active subject
- Passive subject
- Objective element
- Subjective element
- The reticence
- Retraction and causes of non-punishment
- How to prove false testimony
- Relevant jurisprudence
Avv. Laura Bazzan
What is false testimony
Pursuant to art. 372 cp, the false testimony is the crime committed by who, deposing as a witness before the judicial authority or the International Criminal Court, affirms the false or denies the truth, or is silent, in whole or in part, what he knows about the facts on which he is questioned.
This is a crime against the administration of justice designed to protect the correct functioning of the judicial activity, which intends to ensure, in particular, the truthfulness and completeness of the witness testimony as a suitable means to base the conviction of the judge.
According to the art. 372 of the Penal Code, ” anyone, deposing as a witness before the judicial authority or the international criminal court, asserts the false or denies the true, or is silent, in whole or in part, what he knows about the facts on which he is questioned, he is punished with imprisonment from two to six years “.
The interest protected by this rule is, as mentioned, that of the correct functioning of judicial activity through a complete and correct testimony.
The offense sanctioned by Article 372 of the Criminal Code is a crime of its own : the false testimony, in fact, can only be ascribed to those who hold the legal status of witness in civil or criminal proceedings.
The passive subject of the crime, on the other hand, must be identified in the State-collectivity and not directly in the private which is deemed to have been damaged by the false declaration or by the silence of the witness.
It is in general the State-collectivity that has an interest in having the jurisdictional activity carried out in a correct and orderly manner.
Coming to the objective element of the crime, the conduct can be integrated either by commission (mendacious declaration) or by omission (reticence) with reference to the facts object of deposition relevant and relevant for the purposes of the judgment. Since this is a crime of danger, it is sufficient that the false testimony is likely to influence the outcome of the trial without necessarily having to conclude an erroneous judgment. It is hardly necessary to specify that the consummation of the false testimony coincides with the completion of the witness testimony and the consequent exhaustion of all the questions formulated to the witness.
The nature of a non-existent crime and the danger of false testimony prevents the configurability of the attempt.
As for the ‘subjective element, simply the generic ol d, which is the awareness and the will to assert falsely, denying the truth or keep silent, remain indifferent to the goal it had actually targeted by the agent.
The forms with which the false testimony can manifest are three:
- affirmation of the false
- denial of truth
Therefore, not only denying something that we know to be true or affirming something that we know to be false : our system also punishes silence in whole or in part of facts of which we have knowledge.
It is important to underline that the falsity must be evaluated not in an absolute sense but taking into account how much the witness actually knows. In this regard we speak of ” true subjective “
Aggravating circumstances: what is at risk?
The penalty for false testimony is that of imprisonment from two to six years.
If, as a result of the false testimony, the judge pronounces a sentence of imprisonment or life imprisonment, increases in punishment proportional to the amount of punishment imposed on the accused are provided for. In this case, therefore, false testimony can be qualified as an offense aggravated by the event and the aggravating circumstances are of an objective nature pursuant to art. 70 of the Criminal Code. In particular, in application of art. 375 cp:
– if the sentence results in a sentence of imprisonment not exceeding five years, the penalty is imprisonment from three to eight years ;
– if the sentence results in a prison sentence of more than five years, the penalty is imprisonment from four to twelve years ;
– if the sentence results in a life sentence, the penalty is imprisonment from six to twenty years.
Retraction and causes of non-punishment
According to the provisions of art. 376 of the Criminal Code, the punishment of the active subject is excluded, who, after the closure of the trial and in the same proceeding (in criminal proceedings) or the pronouncement of the final sentence (in a civil proceeding), portrayed the false and manifest the truth. The retraction, therefore, consists of an unequivocal denial of the fact object of deposition accompanied by the truthful declaration regarding the same fact; this case is identified by doctrine and jurisprudence as an exemption, while on the other hand it is a discriminating factor. Article. 384 of the Italian Criminal Code provides as grounds for justification the hypotheses in which the false testimony was committed by those who were forced to save themselves or a neighbor from a serious and inevitable harm in freedom or honor (c. 1), or from those who by law should not have been hired as a witness, or could not have been forced to testify or otherwise respond, or should have been warned of the faculty to refrain from bearing witness (c. 2).
How to prove false testimony
Demonstrating that there has been a false testimony can be fundamental to the fate of a civil or criminal trial.
To do this it is necessary, first of all, to obtain the minutes of the case relating to the witness testimony.
It is also fundamental to acquire the documentation or the other elements (also other declarations) suitable to prove that what is claimed by the witness does not correspond to the truth or that he has proved reticent with respect to something he knew.
For example, it will be useful to acquire suitable documentation to show that the witness, at the time of the fact on which he deposed, was elsewhere or that, for another reason, could not have witnessed you.
Here are some important judgments concerning false testimony:
“In relation to the crime of perjury committed by the purchaser of modest quantities of narcotic substance for personal use which, having heard as a witness in the debate on the summary information given during the preliminary investigations, denies having signed the related report, is not applicable l ‘exemption referred to in Article 384 of the Italian Criminal Code, as the guarantee of non-punishment only covers the declarative content suitable for determining a serious and inevitable harm to freedom or honor and cannot extend to the content of other reported statements to objective factual data such as the completed signing of summary information “. (The Court stated that the statement of the witness that denies having signed the minutes of summary testimonial information, without deducing its counterfeiting or ideological falsity, is a falsehood, so that this report can be used for the proof of the historical fact objective (Cassation n. 90/2014)
“The exemption of the state of necessity cannot be invoked in the hypothesis in which the accused has made a false testimony in the presence of a non-impending danger, but only generally feared, of a serious damage to the person”. (In this case, in which the plaintiffs had falsely declared that they had not received extortion requests, the SC considered the circumstance for which the same previously – about six years before – had been victims of intimidation) not relevant (Cass. 34595/2009)
“On the subject of false testimony, what matters for the purposes of integrating the crime is that the witness affirms the false or denies the truth, while the degree of influence that the false deposition has concretely exercised on the proceeding is irrelevant.” (Cassation No. 26559/2008).
“The false testimony does not integrate the untruthful declaration made by a person who cannot be heard as a witness or has the right to abstain from testifying, but has not been warned, to nothing by pointing out the purposes and reasons that led to declare false “. (Cassation No. 7208/2008)
“The private individual who denounces the crime of false testimony lacks the right to object to the request for dismissal (and the subsequent appeal by cassation), I certify that the protected legal asset is the normal development of the judicial activity and the passive subject of the crime is the community and not the person who, due to the crime, suffers any damages that can be compensated in civil proceedings “(Cass. No. 35051/2005)
“For the purposes of the crime of false testimony, a witness must be understood as the third party with respect to the parties to the judgment who, admitted to making statements of science as to his knowledge regarding the facts relevant to the decision, are called to testify before the judge and, in the procedural sphere, in the contradictory of the parties, warned of the penal responsibilities which he meets for the statements not corresponding to his knowledge, he says answering the questions addressed to him about the facts about which he is called to make statements of science. therefore of the offense the person who claims the forgery in the summaries given to the civil judge under Article 689 of the Italian Code of Civil Procedure in the context of a possessory proceeding “. (Cassation No. 6118/2000)