| Supreme Court Sec. Sixth Pen - Sent. of 26.06.2009, No 26594. The complex nature of social relations is reflected today, inevitably, working conditions and their environments, increasingly become the place where the victim is the personality of the person undertaking the work. In recent years, in particular, has stressed the need to respect the dignity, moral and existential sphere of the employee, deserving of protection against those behaviors hostile, degrading, humiliating put in place by the employer work. That phenomenon, called bullying, has assumed high importance that has committed and still commits doctrine and jurisprudence in the search for a definition of the case, and to guarantee institutions and ad hoc security, which have higher efficiency than traditional. The sentence that says, in taking the long standing problem of the configurability of bullying as a crime or not, it is an opportunity for a review of a number of legal issues which had long been trying to solve. SC, with this ruling reaffirmed that the recruitment of "systematic conduct hostile, humiliating, ridicolizzanti and offensive to personal dignity, so as to injure serious or very serious, especially on a psychic level "to a worker who suffers them, is not suitable to integrate the details of the offense under Article. 572 cp, if these behaviors are maintained by an employer as part of a business with "hundreds of employees, which articulated the organization (...) does not involve a close and intense direct relationship between employer and employee." 1. Attempted definition of bullying and social-economic causes of the phenomenon The first problem with which We must confront when it comes to the phenomenon of bullying is the lack of an unambiguous legal definition of the case. In general, bullying is defined as a series of repeated behaviors, ie shares held by an individual or a group (for the purposes of this discussion, which has no means an exhaustive list of subject as a whole, we will refer almost exclusively to the conduct by the employer towards a more workers), such as to harass, threaten, intimidate one or more employees, and create a risk to mental health and / or physics themselves. In light of the above, the incidence of bullying can involve physical assault or verbal slurs in the work of an employee, in his social isolation within the workplace. The phenomenon of bullying is attributable to simplify, to two different cases: on the one hand, it may be the culmination of an interpersonal conflict or, more simply and on the other hand, a situation where quota is the victim of the cd. mobber. social economic causes of this phenomenon are manifold, ranging from intolerance against another's personality or specific nature, discriminatory behavior, conflicts of role, the low quality of the relationship between colleagues and the employer. On many occasions it is difficult to distinguish between bullying and interpersonal conflict, are particularly important in such situations, the location of an asset to be able to prevent blurring of the second phenomenon in the first. Such prevention can be pursued through improving the social environment, the development of an organizational culture based on values \u200b\u200bagainst bullying, the development of positive social interactions. 1. The offense of harassment As is well explained by ruling that says, in our legal system, "there is no trace of incriminating a specific figure to counter the practice of persecution defined bullying" and that, despite a resolution of the Board 's Europe in 2000 and signed by all Member States to adopt a specific law on this issue. a result of this legislative silence, the lower courts and legitimacy, in a case where nell'imbattersi an employer had repeated mistreatment of one employee designed to humiliate, ridicule and capable of offending the dignity of individuals, found themselves in this situation due to the provision under Art. Cp 572, entitled "abuse in the family or to children" (remember in this connection the following decisions: Trib Belluno, 30/01/2007, No. 77, Cass. 10090/2001 and 33624/2007). In this case, the Supreme Court held that the offense referred to the above rule could not be apparent on the part of the Director-General, already completed in the first and second degree because the crime does not exist. The Court based its reasoning on the fact that, in light of spirit of Article. 572 cp the relationship between subject and stand in that offense, must be of "familiarity" in the sense that "while not typically seen in the context of the family, should include regular and intense relationships, habits of life among the subjects, the subjection by one party against another, "and this aspect could be seen in the case referred to a company with hundreds of employees and a comprehensive organizational structure, with CD. "Middle management". Done right and The Court of Appeals, ruling with 31/1/2006, confirmed that the Local Court on 24/3/2004 - Susa section - which had acquitted (...) the crime referred to 'Art. 572 / 1 - 2 cp, because fate does not exist. The specific charges to move 'is accused of having, in mid-1996 onwards, in his capacity as Director General of (...) Avigliana, mistreated the employee (...) under his authority for the exercise of profession, for which he had taken systematic behavior hostile, humiliating, ridicolizzanti and offensive to personal dignity, so as to provide serious and very serious injuries, especially on a psychic level. The District Judge found that the case was framed in the legal case in art. Cp 572, defect, on the ontological level, the details of such care, understood as "Close personal relationship characterized by ongoing systematic, between employer and employee" and the absence of evidence of subjective dell'attribuibilità conducted hypothesized, however, and accused of "foreknowledge" of him with a choice of harassment, take place directly or through their collaborators, to the detriment of the (...). Pointed out that the reality was very different from complying investigation emerged from the hearing and ruling by the Labour Court on 1/28/2003: not a hostile attitude and habitual abuse of power against the (...) under the direction of (...) but in a situation of conflict 'work environment in the context of which were read and interpreted individual events contested. He appealed to the Supreme Public Prosecutor at the Territorial Court claiming a breach of criminal law, with reference to art. 572 cp, and a lack of reasons: he had not sufficiently valued the intersubjective relationship that develops between the employer and employee, characterized by the power steering and discipline of the first against the second, given this appropriate, in the presence of other elements typical to set the crime of abuse; had not emphasized the findings of expert resigned from the PM about the causal relationship between working conditions experienced by the (..) and the diseases found on the same; it was considered unnecessarily unreliable the testimony of the victim, had erred in delineating the subjective element of the offense. The appeal is well founded and should be rejected. The ruling appealed of criminal law and good governance rests on an argumentative device that is anchored to specific emergencies proceedings by account, as appropriate and logical reasons justifying the conclusion it reaches. the lower courts, the outcome of a thorough analysis and critique of testimonial evidence acquired, show that (...) certainly had lived in the working environment in which it was integrated, a situation of great conflict, which resulted in contrasts with other co-workers, executives, and with only marginally or indirectly with the director general (...). Apart from any consideration about traceability subjective episodes of the accused in dispute and ravvisabitità the subjective element of the crime suggested, the data obtained is that (...) had been addressed in the climate veriticatesi exacerbated tensions in that working environment, of repeated complaints by his superiors, which she perceived as burdensome and detrimental to their professional dignity of person. This situation may be, in theory, reduced bullying in the CD, whose concept recalls a policy which continues in time with the characteristics of persecution aimed exclusion of the worker. In our criminal code, however, despite a decision by the Council of Europe in 2000 and signed by all Member States to adopt an arrangement, there is no trace of incriminating a specific figure to counter the practice of persecution defined bullying. On the basis of positive law and the factual data obtained, therefore, the criminal route is not feasible. And 'certainly feasible, however, as seems to have happened in this case, the way of civil proceedings, constituting the rnobbing title for the damages suffered by the worker as a result of persecutory conduct and attitudes of the employer work. The employer is contractual liability under Article 2087 Civil Code, under this in close liaison with those ordered to defend the constitutional right to health (art. 32) and compared the safety, freedom and human dignity in using the Economic Initiative (Article 41). The illegitimate exercise of power business, in fact, must find a no nell'inviolabilità thimbles in the essential rights and still need to prevent the onset or worsening of pathological conditions prejudicial to the health of the worker, while ensuring peace and respect in the dynamics of the employment relationship, even in situations that require any exercise against the power steering or even discipline. Bullying is only vaguely similar to the provisions of art. Cp 572, but this does not agree outright, almost automatically, all the typical elements. The Court notes that, of crimes against family support (Chapter IV, Title XI of the book of the Penal Code), are also included in this case extends beyond the confines of the family, however it is understood, legitimate or done. Indeed, both the art. That Article 571. 572 cp indicate how their taxpayer also expected the "person under the authority entrusted to him or the agent for the exercise of a profession or of art. "The language used formula requires a clear reference to relationships involving a subordinate, whether purely factual or legal, who on the one hand - may lead the actors to behave normally prevaricating to the taxpayer and - other - makes it difficult to evade, resulting in degradation and humiliation of his personality. Just bearing on the definition of "subordination to authority" and "trust, may be covered by the same situation as part of the doctrine and Court considers, on the relationship between worker and employer. The claim is worth, however, a clarification. Observe, indeed, the Court that this report, taking into consideration the ratio of the mentioned rules and, in particular, that in art. Cp 572, still has to be characterized by "familiarity" in the sense that, while not seen in the context of the typical "family" must include regular and intense relationships, habits of life among the subjects, the subjection of one party towards 'other (ratio supremacy - awe), the reliance by the taxpayer in the active subject, recipient of care obligations towards the latter first, because the weaker party. And 'only in the limited context of such a special relationship of para-familial nature that can be envisaged, if the alteration occurs function of that relationship through the debasement and humiliation of the physical and moral dignity of the taxable person, the crime of abuse: for example, of example, the relationship between the domestic worker to persons with whom the family carries out its work or what may elapse between a master artist and apprentice. The inclusion of crimes against the mistreatment of family support is in line with the role that the Constitution entrusts to the "family" as an intermediate company for the training and the affirmation of the personality of its members, and in the same vein are read and interpreted only those relationships that characterize the Beyond the formal appearances for parafamiliare nature. This connotation is not the case under consideration, given that (...) inserted in a complex business reality (...) had hundreds of employees whose articles organized (there were so-called 'middle') did not imply a close and intense relationship direct link between employer and employee is determined by a community of life comparable to that characterizing the consortium, family and relationships inevitably marginalize intersubjective in the sense that it exalts that 'personalist aspect related to the "supremacy awe of actors involved at different levels. Consequently it is not appreciated in such a reality, the reduction the weaker party in an existential painful and intolerable because of the systematic oppression of which he was the victim. PQM dismiss the action. FILED ON 06/26/2009 the source overlex.com CRIMINAL LAW |
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