L'ammonimento amministrativo in caso di stalking e di violenza domestica. Profili teorici e giurisprudenziali

The «oral warning» in stalking and domestic violence cases. Theoretical and jurisprudential profiles The paper analyses the so called «oral warning», first introduced by decree law n. 11/2009 in order to prevent the crime of stalking (Criminal Code, art. 612-bis) and then extended to domestic violence by decree law n. 93/2013. The “oral warning”, as a preventive instrument of administrative nature, must comply with the Constitutional principles limiting all Public Administrations and with Administrative Procedure Law n. 241/1990. The A. highlights how the set of rules concerning the «oral warning» violates the Italian principle of Rule of Law, though the Constitutional Court has decided for the non-unconstitutionality of stalking legislative discipline (judg. n. 172/2014). According to the most recent Council of State’s judgments, the procedure which ends with the adoption of the «oral warning» doesn’t violate the Constitutional principles of Impartiality and Good Administration: the need to protect as soon as possible the victims – mainly women – of violence prevails over the formal respect of administrative rules. After expressing some critical reliefs about the use of the «oral warning» in domestic violence cases, the A. concludes showing how this administrative instrument could protect the privacy of victims and stalkers.