Thanks, Bergmolch. I can't say my understanding of the decision was improved by the BabelFish translation. It looks like a political judgment, based for the most part on post-war Italian legislation rather than the laws and customs of war which existed in 1944:
ATTACK OF VIA RASELLA IN ROME OF 23 MARCH 1944 - DEFINITION LIKE LEGITIMATE ACTION OF WAR, ACCORDING TO OF D.L.VO LGT. 12 YOU OPEN THEM 1945 194 N.
(Cassation - Section the Penitentiary sent. n. 1560/99 - President R. Teresi - Reporter To. Mabellini)
OBJECT OF THE RESOURCE AND REASONS OF THE DECISION
- With “decree” 16.4.98 the G.i.p of the Court of Rome arranged to the recording of the procedure to cargo of Bentivegna Rosary, Capponi Carla and Paschal Balsamo, having to object the hypothesis of the crime of massacre previewed from art. the 422 c.p in relation to the attack completed in Rome, Via Rasella, the 23.3.1944. The procedure had been established on denunciation of next kinsmen of civilians remained killed in the attack (Iaquinti and Zuccheretti), or killed from the Germans to the “Graves Ardeatine” (Gigliozzi), let alone from Forts George which “General Secretary Nazionale of the Committee of defense of the citizen”.
Asked from the P.M the recording, for extinction of the crime in virtue of the disposed amnesty with D.P.R. 5.4.1944 n 96, be a matter of actions store clerks “for reasons of war” (in the sense of completed to the aim to free Italy from the German occupation, but not qualificabili like “actions of war” in tight sense) and oppostesi the parts offenses, the G.i.p had ordered to ulterior surveyings, excluding the notoriety of the episode, as for the concrete modalities with which it had carried out itself, and thinking necessary to assess if the massacre corresponded to the aim thought from the historical reconstructions that is less noble reasons relative to the contrasts between the political groups that composed the National Liberation Front.
In outcome to surveyings the G.i.p., with the provision appealled here, reconstructed the fact, and excluded that it could re-enter between the not punibili actions of war, indicated from the D.L.vo Lgt. n. 194 of 1945 like “the sabotaggio actions, the requisitions and every other operation completed from the patriots for the necessity of fight against the Germans and the Fascists in the period of the enemy occupation”.
It observed that the qualification of the fact as “action I legitimize of war” attributed from the Court of Cassation to civil United Sections (sentence n 3053 of the l9.7.1957) did not have value in the penal procedure and that, be a matter itself of crime that offends the most personal assets of the man, he was not applicable the “special cause not previewed punibilità” from the D.L.vo Lgt. 12.4.1945 n. 194.
It remembered that the artt. 174 and 175 c.p.m.g they punish the methods and prohibited means of war from the law or the international conventions, emphasizing that, in case of various interpretation, it would lack meant the emanated amnesty, relative to “any type of crime”. It excluded therefore that the fact could characterize “action legitimizes of war”, ravvisava instead all the objective and subjective ends of the massacre crime.
It thought, on the base of the arranged actions of surveying, than the attack, in the intention of the agents, it had been planned and put into effect sure to the indicated patriotic aims from the D.L.vo Lgt. n. 96 of 1944, and consequently arranged the recording of the actions declaring extinguished the crime for amnesty, in compliance with demanded how much sin from the beginning from the P.M.
It observed then that in the phase of preliminary surveyings c is not concurred the application of art. the 129. 2 c.p.p with examination of the merit, classified to the process in sense own, and that therefore the judge was esonerato “from every appraisal approximately the applicabilità or less to the present fattispecie of the dispositions of which to D.L.vo. Lgt. 12.4.l945 n. 194 on not the punibilità of the actions of war of the patriots in occupied Italy”; it added from last: “After all how much up to here exposed, us those will be able perhaps to be asked at the end if that happened in via truly necessary Rasella the 23.3.1944 or be or also only opportune, had with regard to the prevedibilità of a pitiless reaction from the Germans. To warning of deciding, but, such issues, on which insistently the parts have been stopped offenses, if they can find I legitimize income within an ethical debate, political and historical, cannot assume legal importance some to the aims of the present procedure. Ne', on the other hand, it is concurred with the judge to express appraisals that are not extremely pertinenti to the “thema decidendum” to assigned it”.
II - They have proposed rerun in cassation Paschal Balsam, Bentivegna Rosario and Capponi Carla, participates to the attack, deducing the following reasons, deepened from the defensive memory successively deposited.
1) the appealled provision had to be considered abnormal, since the judge, before asserting not to be able to come down in the merit, like concurred in the dibattimentale phase from art. the 129 c. 2 c.p.p and of being esonerato estimating the applicabilità to the species of the D.L.vo Lgt. 12.4.95 n. 194 su11a not punibilità of the actions of war of the patriots in occupied Italy, was profuse on the topic, reaching the conclusion that the attack of via Rasella could not be qualified as action I legitimize of war, on the base of a most debatable analysis of the dispositions of international right and the post-war norm. The irrituale construction, founded also on distorted jurisprudential precedence, characterized the decree between the so-called the “actions ricorribili extras-vagantes” for cassation.
2) the appraisals expressed from the G.i.p on the configurabilità of the attack of via Rasella which war action, with reference to the Military Wartime Penal Code, was not of its competence the legittimità of the action already had not been however thought in other sentences, between which that emitting from Ulite the Civil Sections of the Cassation, in which correctly it had been considered that the absolute discrezionalità of the war activity does not concur with the judge some various control from that relative one to the purposes of the action
3) the recording provision cannot never contain pregiudizievoli assessments to the person subordinate to surveyings or the thirds party, principle this in compliance with art. the 24 of the disregarded Constitution and in the event under investigation.
4) c Would have otherwise to be declared constitutionally illegittimo art. the 129. 2 c.p.p., in relation to the artt. 3 and 24 of the Constitution, in the part in which of it is not concurred the application to the judge to which the p.m it has demanded the recording of the actions.
In the defensive memory the incostituzionalità exception came developed in various way, with reference to art. the 411 c.p.p., “in relation to the artt. 3/1° c., 24/2° c., 111/2° c. Cost. for the part in which it applies the dispositions of which to art. the 409 1°c. c. .p.p., and therefore in the event concurs the recording of the actions also in which the application of the amnesty it is subordinated to a jurisdictional procedure of constituent assessment in which the appraisal of the subsistence in the fact of determined circumstances (in the species, the detail patriotic purpose of the fact) and their value represents the necessary and intransgressible participation of science and the will of the judge who contributes to render the abstractly delineated estintiva truth from the legislator concrete and effective”. The disparity of treatment between the citizens is found who in compliance with art. the 129 c.p.p are admitted to demonstrate the existence of the conditions of which to 2° the codicil of the same article, and therefore eventually obtaining a improcedibilità or acquittal sentence, and appealling, if of the case, the same sentence, in compliance with the inviolabile right of defense and to the principle of ricorribilità of the sentences, and those who remains private of all such rights and faculty in force of a highly summarized procedure of recording, than however it motivates its decisive aspect with the apodittica relative affirmation to the existence of the crime.
The incostituzionalità of art. the 411 c.p.p is eccepita in the memory, with reference to art. the 77 of the Constitution, also under the various profile of the violation of art. the 2 n. 50 of the law delegation n. 81 of 1987, that he only previews the possibility of the recording for manifest infondatezza of the crime news, for being unknown the authors of the same one or for improcedibilità of the criminal action, while the two fattispecie are recalled in directive 52 between the cases for which it can be pronunziata sentence not to have itself to proceed according to of art. the 425 c.p.p., like modified from law 8.4.93 n. 105.
III - The Attorney general near this Court in own written requisitoria disregards the defensive thesis concerning the abnormità of the appealled procedure. It considers that “if does not appear contestabile that the G.i.p., also invocando completely various principle, is of left fact to go to judgments of merit, moreover “morally” unfavorable to the inquired ones, this operation - on whose arguable contents from the legal and historical point of view are opportune in this center not to stop themselves in order not to introduce ulterior misleading reasons - has been put into effect so to speak going “beyond” how much was for form and necessary substance to giving concrete answers to the demand for recording. This glut for its “smaccata” ultroneità is not able to communicate its “defects” to organic - and the clearly sussistente - compatibility with the premises placed from the P.M that is to its decisive content”.
It thinks manifestly groundless the exception of costituzionalità proposed, considering that own the censorships of the recurrent ones on the distorted use of the principle of which to art. the 129 c. 2 fact in the decree indicate like verifiable in are not separated the deducted disparity of treatment.
It concludes for the inammissibilità of the proposed resource.
IV - That premised one, the Court observes how much follows.
1) the recording decree disciplined from the artt. 408 - 411 c.p.p it is a provision conceived from the legislator like front to the exercise of the criminal action, correlated to the insussistenza of the ends in order to exercise it, than in no way it can prejudice the interests of the person indicated like responsible in the news of crime or the interest of public prosecution to reopen surveyings in the event previewed from art. the 414 c.p.p. For such its nature, of provision in some 'neutral” way “, they are not previewed any average of impugnazione.
2) the only form of impugnazione concurred against the decree of recording and connected to its eventual abnormità, in virtue of the jurisprudence that admits the resource for cassation, in compliance with art. the 111 of the Constitution, in the comparisons of the provision characterized from defects “in proceeding” or '' in iudicando” completely unforeseeable for the legislator, which own for the extraneity of the action to the legislative system has not previewed against of it some means of impugnazione (on the point, between the others, Cass. Sez. III 8.8.96, Cammarata, RV. 206058). According to the United Sections of this Court (12.2.98 n. 17, Of Batiste, R.V. 209603) “the provision is affection from abnormità not only that, for the singularity and strangeness of the content turns out extirpated from the entire trial-like ordering, but also what, also being in separated manifestation of legitimizes to be able, esplichi to outside of the concurred cases and the previewed hypotheses, beyond every reasonable limit. The abnormità of the legal proceedingses can also regard as well as the structural profile, when the action, for its singularity, is placed to outside of the organic system of the trial-like law, how much the profile works them, when it, not stranger to the normative system, determines the stasis of the process and the impossibility to continue it”.
3) the recurrent ones deduce the abnormità of the provision of recording adopted in their comparisons for being extinct “the contested crime” (cfr. pag. 29 of the provision appealled) for amnesty, siccome emitted in wide outcome and detailed motivation with which their colpevolezza for the crime of massacre has been assessed. The formulated, considered doglianza in separated, corresponds to the concept of considered abnormità, since “the neutral” nature of the recording decree, emitted in a phase in which the relative elements to the crime news they are still amorphous and fluid, radically incompatible with the declared one and is motivated attribution of a crime to subject determining. A provision that has the characteristics presssed charges in the resource places therefore to outside of the legislative system, that it imposes the exercise in conflicting of the criminal action before the assessment of a crime to cargo of a denounced person.
The abnormità complained in coherence to the nature of the appealled provision renders therefore permissible only half of impugnazione concurred in the considered hypothesis.
4) the resource, beyond that permissible, it is founded, since the presssed charges abnormità is real.
The appealled provision of recording, than art. the 409 c.p.p it previews or emitted in the forms of the “decree”, it is characterized like “decree”, and moreover has the typical motivazionale cut of the sentence, as, after to have reconstructed the fact and the role in carried out it from the three recurrent ones, in order very six pages (ff. 24-29) it is expressed on the qualification of it and the configurabilità of the crime of massacre. The previewed outline is that one from art. the 129 c.p.p., of which to pag. 35 the G.i.p moreover recognizes the inapplicabilità to the phase of surveyings, admitting express that the issues placed from the parts offenses, object of the previously extensive motivation, could not “assume importance some to the aims of the present procedure”.
It observes with regard to the College that according to of the artt. 408 and 411 c.p.p the recording can be disposed if the crime news is groundless, that is because a condition lacks procedibilità, because the crime is extinguished or because the fact is not previewed from the law like crime. On the credit side recording does not apply art. the 129 c.p.p., than to according to codicil it arranges to the prevalence of the causes of declaratory judgement not punibilità of substantial nature regarding those connecting to the extinction of the crime. The norm in fact is dictated for “every state and degree of the process”, and is therefore stranger to the phase in issue, front to the exercise of the criminal action (in consistent sense, Cass. Sez. YOU, 5.3.98, Boccardi, RV. 210826; Sez. V, 18.3.97, Giustini, RV. 207901; Sez. YOU, 7.9.94, Rosco, RV. 199084; on The Manifest the infondatezza of the issue of costituzionalità proposed on the specific point with reference to the artt. 3 and 24 Cost., Cass. Sez. YOU, 7.7.92, Zanetti and others, RV. 19l053, that it has excluded the disparity of treatment presssed charges regarding the sent back one to judgment in whose comparisons must be issued sentence of release, in consideration of the absolute diversity of the situations disciplined, and the absence, in case of recording, rights or interests to protect in head to the subject).
The inapplicabilità to the decree of recording of art. the 129 c.p.p involves that the judge, which the provision is asked for reasons relating to the extinction of the crime, does not have to motivate in order to the impossibility to record for various reasons, inherent to not the configurabilità of the crime. And thought moreover, in consideration of the favor that meets in our ordering the choice of the liberatoria formula more wide, than the G.i.p which it has been asked the recording for defect for a proseguibilità condition or of procedibilità of the criminal action or for taken part extinction of the crime it can, in alternative to the demanded adhesion of the P.M., to record according to “notitia criminis” for manifest infondatezza of art. the 408 c.p.p. (in such Cass sense. Sez. YOU, 1910, 16.11.90, Sica, RV. 185768, published in It Hole. 1991, II, 516). It is not instead permissible that the analysis and the conclusions of the G.i.p in such phase address “in malam partem”, making to precede to the indication of the formal reason for which the recording is arranged a substantial motivation, that it concerns the configurabilità of the crime and the responsibility of inquired in order to it (in the same sense cited sentence over, that has thought the abnormità of the provision with which the G.i.p., to forehead of the demand for the p.m for recording of the actions for extinction of the crimes for amnesty, before expressing itself in consistent sense had assessed with diffused motivation the existence of elements of responsibility to cargo of the denounced one. Consistent Cass. Sez. YOU, 7.9.94, Rosco, RV. 199084, that it has thought abnormal the decree of issued recording for amnesty, preceded from the relief that did not turn out obvious the insussistenza of the fact, and that the legal qualification correct era; Sez. V, 9, 18.3.97, Giustini RV. 207901, in topic of pronounced provision before the exercise of the criminal action, in which the G.i.p with reference to art. the 129 c.p.p has used the formula, rather than of recording, “nonsuit to cargo of the inquired one as a result of the dead women of these”, preceded from the appraisal on the lack of manifest elements based on which to release in the merit).
Since in the species the appealled provision has assumed various nature from that merely declaratory and delibativa own of the recording decree, and contains a specific expressed assessment “in malam partem” regarding persons in the whose comparisons the criminal action had not been exercised, ravvisa its abnormità in dependency of the foretold assessment, independently from the correctness or infondatezza of the motivations that such assessment support. From the deduction abnormità it follows the cancellation of the same provision.
5) the considerations that precede evidence the irrilevanza, and at the same time The Manifest the infondatezza, of the exception of proposed costituzionalità. The artt. 408 - 411 c.p.p it does not give space for appraisals concerning in positive the responsibility of the inquired one for a determined crime, accompanied from the recording of “notitia criminis” the relative one, and it cannot be outlined, neither one in the event outlines of species, the lesion of the rights and the interests complained as a result of a provision that, as abnormal, is ricorribile during legittimità and that it must be cancelled.
6) the cancellation of the provision, characterized like abnormal, places to the College the problem ulteriorly to supply in order to the possibility to give in this center the dispositions necessary in order to render the decision appealled in compliance with the law, in compliance with art. the 620 lett. l c.p.p. In this perspective it sure competes to this Court the obligation to consider if the fact, which it emerges from the demands for the P.M and the reconstruction put into effect on the base of surveyings arranged from the G.i.p., does not turn out previewed from the law like crime: and this in relation to the specific observations formulated with the resource.
It goes observed with regard to:
a) The attack of via Rasella of 23 March 1944 to the damages of the battalion of German police “Bozen”, in which they remained been involved some Italian civilians, was completed while it was in course the occupation of great part of the national territory to work of the Germans as a result of the successive events to the armistice of the 8 september 1943. To such occupation Rome was not embezzled, than although its qualification of “open city” (attributed unilaterally from the Italian Government before the armistice: cfr. Cass. Sez. U. Civ. 19.7.1957 n. 3053, in It Hole. 1957, I, 1398), it was garrisoned from truppe German and subordinate to a hardest control of military and political police.
Against such occupation in Rome and all Italy center-northerner sin from the 9 september 1943 had been gone spontaneously organizing groups of resistance is politics that to support.
The attack, carefully prepared (cfr. also pag. 33 appealled), determined provision and was put into effect from pertaining to formations of the G.A.P. (Groups Patriotic Action), employee from the Garibaldi Commando for Italy Center them, and commant in Rome to the age of the fact from Carl Salinari. They were connected the Military Committee of the C.L.N. (National Liberation Committee) through George Amendola and others. Rivendicarono the openly G.A.P the paternity of the action, directed to contrast the German occupation and to give back the freedoms conculcate from fascist regime.
The action was put into effect making to explode, by means of detonator connected to a fuse, 18 kg. of trito contained it in a carretto for the trash, in coincidence of the passage, usual and previewed, of a company of the battalion “Bozen”. According to the reconstruction of the technical adviser of the part Zuccheretti offense, brought back in the appealled provision (pag. 14), the outbreak of the device had to determine the dead women of 42 German soldiers (of which 32 died nearly immediately and the others in the following days), and at least two Italian civilians, the minor Peter Zuccheretti and Antonio Chiaretti.
b) made I1 object of the demand for recording proposed from the P.M and of the provision appealled for the quality of committed it to who, for the objective against which it was directed and for the purpose animated that it, re-enters, in all evidence, within application of the D.L.vo Lgt.12.4.1945 n. 194, that it arranges: “Actions of war are considered, and therefore not punibili to terms of the common laws, the actions of sabotaggio, the requisitions and every other operation completed from the patriots for the necessity of fight against the Germans and the Fascists in the period of the enemy occupation. This disposition is applied so much to the patriots framed in the recognized military formations from the National Liberation Committees, as for the other citizens have helped who them or have, for they order, in any way competition in the operations in order to assure of the resolution”.
From the premises that precede it achieves that they must be considered groundless the reasons for which the prosecuting attorney that has asked the recording before, and the G.i.p then, have excluded the applicabilità of the norm to the species, under the profile that the operations considered in the only article of the decree liutenant cited would be exclusively those “of contour”, not being involved straight head physicians of the human person. The term “operations”, junior clerk to a context that historically is of Armed Struggle, comprises any action, also cruento, face to fight the enemy. The “law of approved of war” with R d. 8.7.1938 n. 1415, All. To, it second dedicates the entire “Title” to the “war operations”, that they comprise “hostility actions” (Head II, Sez. I) implying “the use of violence” (art. 35), and the “strafing” (Head II, Sez. II).
The reductive interpretation of the term appears in fact not corrected from the literal point of view, since contrasts with the expression “every other” that precedes immediately it; collide with the systematic structure of the only article of the decree liutenant, than placing in the within of the “actions of war” the mentioned actions it cannot prescind from those which they are generally the characteristics of the actions in whose number the same actions are inserted; it squeaks with the will of the legislator, desunta from the historical situation in which the norm has been emanated, addressed to at the end attribute acknowledgment of liceità to every directed action to the liberation of the national territory and of the fascist regime, evidently expressed will in a series of dispositions of successive law of the age and, than of continuation they are recalled here.
- The D.L.vo Lgt. 21.8.1945 n. 518 have disciplined “the acknowledgment of the qualifications of partisans and the examination of the proposals of ricompensa” in dependency of the Armed Struggle partisan.
- The D.L.vo Lgt. 5.4.1945 n. 158 have recognized the qualification of “combatant patriot”, involving miscellaneous benefits kind, between the others, “to the organizers and the stable or active members of bands, which have effectively participated to actions of combat or sabotaggio” (art. 9 lett. to, in which the comparison between combat and sabotaggio evidences like or wrong, from the mention of the contained sabotaggio in the D.L.vo Lgt. n. 194 of 1945 here under investigation, to desumere a reduced meaning, concerning set in action of simple “contour”, of the successive term “operations”).
- D.L.vo C.P.S. 6.9.1946 n. the 226, that it has disciplined the compensation to cargo of the State of the damages caused from the “placed operations of the war” in being from the national, allied or enemy Armed Forces, equipara to the Armed Forces “voluntary formations participants to the war operations”.
- Law 21.3.1958 n. 285, titolata “legal Acknowledgment of the body Voluntary of freedom (C.V.L.)”, have recognized the same body “to every effect, like framed organized military body in the Armed Forces of the State”, with the consequent economic benefits and of career.
Draft of connected normative provisions to our History, the formation of the Italian Republic and to the principles on which the Constitution I found (tasks to XII the Transitory Disposition to the Constitution), consistent to the “intention of the legislator” also if considered besides the moment in which it has been expressed and in sense they puts into effect.
Neither the circumstance that the disposed amnesty with D.L.vo Lgt. 5.4.1944 n. 96 all the crimes had which object “, when the aim has determined that them or be that one to free the native land from the German occupation, that is that one to give again to the Italian people the freedoms conculcate presses or from the fascist regime” (art. 1), is given suitable to exclude that a having action the characteristics and the effects own of the attack of Via Rasella re-enters within applicabilità of 194 decree liutenant n of 1945. The promulgazione of the amnesty is precedence, not successive, to the D.L.vo Lgt. n 194 of 1945, that it has removed in root the crime nature, having inserted it between the “actions of war”, to every “operation completed from the patriots for the necessity of fight against the Germans and the Fascists in the period of the fascist occupation”. And it has its an undeniable and deep “ratio” the such fact that, in that historical moment, to the wide formula of the disposed amnesty for a number grandissimo of crimes, only characterized in relation to the purpose persecuted, then has acknowledged the total irrilevanza to the fine penitentiaries of some of they, having characteristic subjective, objective and operating modalities to render them assimilable to every effect to “actions of war”.
As for the “necessity of fight” against the indicated obbiettivi, it is found that the nature of the war activity renders the appraisal on the discretionary point, evidently not sottoponibile from the ordinary judge to a control that is involved “a posteriori” the effectiveness de11'operazione prechosen to achieve the strategic objectives persecuted. In the event of species the attack, store clerk regarding an enemy formation that occupied the national territory, face to contrast the same occupation, appears characterized from those unequivocal structural and teleologici requirement that concur with the judge to characterize the action foretold like “action of war” based on the decree liutenant cited.
c) the reasonings - recalled express from the G.i.p., but from the same one must therefore be shared disregarded (cfr. pagg. 24 and segg. provision) - with which the Civil United Sections of this Court with sentence 19.7.1957 n. 3053 over cited, pronouncing in topic of compensation of the damage demanded from the civil victims of the attack of Via Rasella, have established that “the fight partisan has been considered from the Italian legislation which legitimate activity of war”, with consequent improponibilità of the proposed risarcitoria action. The statuizione, is clear, does not bind the penal judge, in compliance with the artt. 2 and 3 c.p.p., in the sense that not work with sentence effectiveness, but undoubtedly constitutes a meaningful precedence for the penetrating and exaustive analysis developed on the specific concerning topic the qualification of the carried out activity from the groups partisans had care, in particular, to the various position attributable to the same ones in relation, on one side, to the actions of completed hostilities, the age of the facts under investigation in the comparisons of the German occupants, and, from the other, to their relationship in the within of the ordering (inner) Italian.
Various, but to a careful examination not confliggenti, the situations and the consequent appraisals recepite in pronunce of the organs of the military justice concerning the attack of via Rasella, and having for object the “reprisal” put into effect the successive day from the Armed Forces with the killing of 335 Italian citizens to the Ardeatine Graves.
With sentence 20.7.1948 n. 631, emitted against Kappler and others (in “Resigns of the Military Justice”, 1996, nn. 3-6, pag. 3), the Military Court of Rome, than also has excluded the legittimità of the reprisal for violation of the principle of the proportion, has denied the nature of legitimate action of war of the attack, as store clerk from “does not legitimize belligerents”, in connection with the clandestinità of the organization partisan, to the age lacking in requirement demands dall '' art. 1 for the Convention of the Aja of the 18.10.1907.
Proposed resorted from Kappler, the Supreme military tribunal, with sentence 25.10.1952 n. 1711 (ibidem, pag. 83) the exercise of the reprisal in relation to the legittimità of the Italian action has turned upside down such formulation declaring illegittimo: “Via Rasella, to the light of the norms of the international right, it is placed in terms of rigorous linearity: its qualification cannot be other that of an action of hostility to damage of the military forces occupants, store clerk from persons whom they have the quality of legitimizes belligerents”.
The topic of the liceità of the attack, connected to the illiceità of the put into effect ritorsivo action with the eccidio of the Ardeatine Graves, in the two sentences mentioned has been faced in connection with the controversial quality of legitimizes belligerents of the attentatori to the age of the contested fact, and it could not sure be resolved with reference to the decree liutenant n. 194 of 1945, emanated successively to the “reprisal” in issue. Such solution was not concurred neither from art. the 23 c.p.m.g on the ultrattività of the penal law to support of war, neither from the artt. 25 c. 2 of Constitution and 2 c. 1 c.p., for which the acknowledgment of the legittimità of the action of via Rasella, as characterized with retroactive effect “action of war”, it could not be worth to the aims of the location of the illicit penitentiary contested in that procedure.
Strangers to the “thema decidendum” remain therefore put into effect them the motivations, formulated in the first cited sentence, inherent to the illegittimità of the attack with reference to the artt. 25 and 27 of the war law (all. To the r. decree 8 July 1938, n. 1435, articles of which the moreover Civil Sections of this Court, within a “obiter contained dictum” in the cited sentence, they disown the applicabilità to the species case, as such norms were only directed to limit the powers of the Italian State in the comparisons of the citizens of other States with which it is in war), in connection with the clandestinità of the organization partisan, to the age lacking in requirement demands from art. the 1 for the Convention of the Aja of the 18.10.1907, for which a war action I legitimize can be completed solo from the regular armies that is voluntary bodies that, beyond to being commant they give a responsible person for the subordinated ones, has a sign at a distance fixed and recognizable symbol, and carries the crews openly. But that place in evidence, of it does not derive at all not the riconducibilità to the Italian State, for how much refers to the involvement in the attack also of civil victims, of the action of the partisans. It is necessary to remind in fact that, sin after the declaration of the state of war regarding the Germany (13 October 1943) the Government I legitimize had urged all the Italians to rebel themselves and to contrast with every means the German occupation (cfr. Cass. Sez. U.Civ n. 3053 of 1957 cited). The fact, undeniable, but common to all the movements of resistance, of their clandestine character in the moments begins them, is not at all in contrast, therefore, with the acknowledgment of the activities under investigation which typical actions of war. And the successive legislation has been simply limited to give of action
d) the considered operation legittimità, unitary in the action and the scope persecuted, must be therefore estimated in its complex, without that or possible scinderne the consequences to cargo of the German soldiers who of it constituted the objective from those being involved the civilians who remained some victim, in connection with its nature of “action of war”. The foretold actions are unfortunately for they nature characterized from consimili effects, like emerge from the “disciplined strafing” from Title II, Head II Sez. II of the legislation of war of which to the R.d. 1415 of 1938, all. To.
7) thus Excluded the configurabilità of the crime of contested massacre, the appealled, abnormal provision of recording, it can be brought back to legality replacing itself, that part in which the responsibility of the denounced ones for the foretold crime is declared and the recording is motivated on the base of the disposed amnesty with D.L.vo Lgt. 5.4.1944 n. 96, the motivation inherent to not the forecast of the fact like crime from the law.
FOR THESE REASONS
seen art. the 620 lett. l) c.p.p., it cancels without dismissal the provision appealled limitedly to the part in which it arranges the recording for extinction of the crime for amnesty rather than because the fact is not previewed from the law like crime.
