INFORMATION ABOUT PRIOR COMPLAINT

INFORMATION ABOUT PRIOR COMPLAINT

In the case of family conflicts , the police can act after a written referral was filed at the police station competent over the territorial area of the victim's home (if it is made by the victim it is called a complaint, if it is made by a witness it is called a denunciation), following a telephone call to the service officer of the police station/unit in the respective area or a call to the Single Emergency Call Service 112 (which can be made by anyone aware of such events), a verbal referral made by anyone directly to the police officer patrolling or, the police may find out from the media or during an intervention in a different case.  An ex officio referral is the way in which the police find out about an offense in any other way than the victim's complaint.

Referrals about acts of domestic violence may also be filed by persons with management positions within a public administration authority or within other public authorities, public institutions or other legal persons under public law, as well as by any person with control powers who, in the exercise of their powers, have become aware of the commission of an offense for which criminal proceedings are instituted ex officio. They are obliged to immediately notify the criminal investigation body and to take measures so that the traces of the offense, the corpora delicti and any other means of evidence do not disappear. (art. 291 of the Criminal Procedure Code)

The victim must know that they can refer a prior complaint to the criminal investigation body or the prosecutor. The right to lodge such a complaint is personal and belongs to the injured party. The prior criminal complaint may also be lodged by an agent, in which case the power of attorney must be drawn specifically for this purpose and must remain attached to the complaint during the proceedings.

The criminal action in case of offenses punishable upon prior complaint of the injured person, for example:

• battery or other acts of violence (art.193 of the Criminal Code)
• threats (art.206 of the Criminal Code)
• rape in non-aggravating forms (art. 218 para. 1 and para. 2 of the Criminal Code)
• sexual assault in non-aggravating forms (art. 219 para. 1 of the Criminal Code)
• theft between family members (art. 231 para. 1 of the Criminal Code)
• destruction (art. 253 para. 1 and para. 2 of the Criminal Code)    

is governed by the principle of availability: the victim may decide to withdraw the complaint, a situation which extinguishes the criminal action previously initiated.

In the case of the offense of battery or other acts of violence committed against a family member, the criminal action may be initiated ex officio, and in this case, the victim's will to stop the punishment of the aggressor can no longer be manifested.

For the other categories of offenses (for which the law does not require the lodging of a prior criminal complaint), the criminal investigation bodies do not need the express manifestation of will of the injured person to prosecute the perpetrator, regardless of how they found out about it (complaint, ex officio).

A complaint shall have a certain form and has to be submitted within a certain deadline.

A prior complaint is addressed to the criminal investigation body or to the prosecutor only by the injured person or by an attorney-in-fact (there should be a limited power or attorney, which shall remain attached to the complaint). If it is made in writing, the complaint has to be signed by the injured person or by the attorney-in-fact.

A complaint may also be submitted verbally, and its content shall be recorded in a report written by the person receiving it. 

A complaint may also be sent electronically, namely by e-mail, but only if it is certified by electronic signature.

Information which shall be included in the COMPLAINT: name, first name, personal identification number, capacity and domicile of claimant, description of the fact forming the object of the complaint, indicating the perpetrator and the means of evidence.

In the case of legal entities: name, registered office, unique registration code, fiscal identification code, registration number in the trade register or registration in the register of legal entities and bank account, indication of the legal or conventional representative.

A prior complaint shall be submitted within 3 months from the day when the injured person found out about the perpetration of the deed. When the injured person is a minor or an incapacitated person, the term of 3 months shall start running from the date when their legal representative found out about the perpetration of the deed. If the perpetrator is the legal representative of the minor or the incapacitated person, the term of 3 months runs from the date of appointment of a new legal representative.

A prior complaint may be withdrawn before the issuance of a final judgement. This situation applies only in the case of the offences for which the initiation of the criminal action is conditional upon the submission of a prior complaint.

A prior complaint may be withdrawn by the person who submitted it, namely the victim or its legal representative (if it is a person lacking legal capacity)

and such withdrawal has the following effect:

it removes the criminal liability of the perpetrator of the offence, therefore such perpetrator shall no longer be punished.