The above declaration contains the indication of not being subject to criminal proceedings. In this regard, the undersigned Order has requested:
- whether this statement must be made with exclusive reference to the art. 7, co. 5, Chapter III, of the Regulations for the exercise of the territorial disciplinary function, a rule which regulates the subjection to disciplinary proceedings of the professional against whom criminal action has been exercised by the Public Prosecutor with the request for committal to trial;
- whether the member is required to take action, and possibly in what form, in relation to his involvement in criminal matters prior to the indictment, reporting whether or not its existence also in the aforementioned self-certification.
Having said this, as a preliminary matter, the National Council noted that it is necessary to distinguish between criminal proceedings and criminal trials: the former is in fact a phase preceding the actual criminal trial, and begins with the registration of the crime report in the appropriate register kept at the public prosecutor’s office. Once this first phase has been completed, the preliminary investigation phase begins, in which the PM verifies the reliability of the crime report, looking for evidence and establishing whether or not there are the necessary conditions to be able to exercise criminal action. At the end of the preliminary investigations, if the Public Prosecutor considers the crime report to be unfounded, he can make a request for archiving (e.g., due to the extinction of the crime or because the fact does not constitute a crime).
If, however, at the end of the preliminary investigations, the Prosecutor believes that there are sufficient elements to support the accusation in the trial, he requests a committal to trial, i.e. the opening of the criminal trial. In this case the suspect acquires the “status” of accused.
Before the indictment, therefore – continues OP no. 60/2024 -, the criminal action has not yet been exercised, as this phase could, as mentioned, end with the request for dismissal of the proceedings. In this phase, therefore, the investigated person may not even know of the existence of a criminal proceeding against him, unless he has been reached by the guarantee information, i.e. the act with which the Prosecutor communicates to the suspect and to the person offended by the carrying out of an investigative act which involves technical defence, in relation to which he invites him to appoint a trusted defender. Warranty information, therefore, is often the act through which one formally learns of the existence of a criminal proceeding being investigated against oneself: before this moment, knowledge of the existence of a proceeding can be acquired , on one’s own impulse, through the interrogation of the general register of crime news, unless particular secrecy needs do not allow the disclosure of the news.
Well, given these premises, the National Council highlights that art. 46 of Presidential Decree no. 445 of 2000 (entitled “Declarations in lieu of certifications”) establishes, in art. 1, that «The following states, personal qualities and facts are proven by declarations, even contextual to the request, signed by the interested party and produced in lieu of the normal certifications: …. aa) not to have received criminal convictions and not to be the recipient of provisions regarding the application of preventive measures, civil decisions and administrative provisions entered in the criminal record pursuant to current legislation; bb) not to be aware of being subjected to criminal proceedings».
Given the above, in PO no. 60/2024, it is conclusively observed «that, at the moment in which the professional becomes aware of being subjected to criminal proceedings, in the manner described above, even if he has not (yet) been sent to trial, he will certainly not be able to declare that he is not aware of being subjected to criminal proceedings. […]it is therefore believed that, when making a declaration regarding the existence of the legal requirements for those registered in the Register, the professional who is aware of being subjected to criminal proceedings must in any case declare to the Council of the Order to which he belongs his involvement in the criminal proceedings concerning him”.
