The obligation to bear witness deposing the true, of course, she meets some limitations. The legislature to ' art. 199 cpp exceptions introduced by placing the non-mandatory nature of evidence in favor of close relatives. L ' intentio legis is characterized by the desire to give recognition to the affective bond-family and in particular to protect the witness from the personal conflicts that would otherwise be determined between the legal obligation to testify and tell the truth and a moral obligation not to harm the people bound by a family relationship [1] . This approach è stata ribadita dalla Corte Costituzionale, sotto la vigenza del codice di rito del 1930, con sentenza resa il 12 gennaio 1977, n. 6 [2] , sottolineando come nel possibile contrasto tra l'interesse pubblico, della giustizia, che su tutti gravi il dovere di deporre, e l'interesse privato, ancorato al sentimento familiare, che i prossimi congiunti dell'imputato, non siano travagliati dal conflitto psicologico tra il dover deporre e dire la verità ed il desiderio o la volontà di non deporre per non danneggiare l'imputato, il legislatore abbia come regola ritenuto prevalente l'interesse privato, anche se in modo non generale ed assoluto ma se ed in quanto the person concerned and considers that the witness not to have to overcome that conflict or power [3] . Therefore, the deposition is not mandatory for the next joint is configured not to testify as an absolute prohibition but as a right to abstain. It is for the person concerned to assess specifically whether to abstain or to opt for the deposition. To this end, the ' art. Cpp 199, paragraph 2, requires the court to inform the next of kin, called to testify, the option granted to him by the code of ritual to abstain. The penalty provided for failure to comply with obligations under the second paragraph is referred to the decree nisi ' art. 181 cod. proc. penalty.
The subjective scope of protection, in the absence of specific provisions contained in ' art. 199 cpp, be determined by applying the general rules laid down in anticipation ' art. Cp 307, paragraph 4. Therefore beneficiaries the option of abstaining from the deposit are the ancestors, descendants, spouses, brothers, sisters, in-laws in the same grade, uncles and nephews of the accused does not include them in the name of the immediate family when it is related death of a spouse and there is progeny. The new code of ritual has expanded the scope of protection subjective bring within the definition of close relatives having the right to refuse the subject linked by ties of adoption of the accused, whether an adoption of minors ex l. 184/83, or age ex Articles. 291 ff. cc [4] .
The most important novelties are happy the second part of paragraph 3, Art. 199 cod. proc. penalty. Coexistence marital status was placed on the same level of married life. The spouse or unmarried marital status , only the events or learned by the accused during the cohabitation, may decide to abstain. In this respect it seems appropriate to highlight the exegetical approach taken by the Court of Assizes of Turin [5] . The court fully adherent Piedmontese approach to social evolution, shared by both the substantive law of legitimacy, has decided to extend the scope of ' art. 199, paragraph 3, cpp bring within the definition of cohabitation also any legally relevant stable emotional bond that includes the mutual willingness to engage in sexual relations, it all falls in a relational situation where there are attitudes of mutual assistance and solidarity, elements that these are not only excluded from the uniformity of sex between persons in relation .
The correct concept of the family in fact, a consequence of cohabitation marital status, accepted in law and endorsed by the legislature in ' Article 199 cpp as a case of exception to the obligation to give evidence has been held of legitimacy more recently. The
Supreme Court ruling made with January 5, 2006, No 109 [6] , in an action for legal aid, moving from the obvious need to focus on the social reality rather than as a formal union between two people living with recognized legal significance to the interpersonal nature of the expected trend towards stability, and emotional nature parafamiliare, esplicatosi in a community of life and interests and mutual moral and material assistance, thereby concluding a full equality of married life to a marital cohabitation in order to identify the income ceiling for legal aid in criminal cases [7] .
To conclude this brief discussion I believe that the legal right to abstain from giving evidence referred to ' art. 199 cod. proc. penalty should be extended beyond the traditional limits laid down ' art. 307, paragraph 4, cp awaiting the new social reality asserted itself throughout the country, and of which, have proven repeatedly to be taken into account in the case of legitimacy, both the substantive law as well, the same legislature.
Giuseppe Lantieri
[1] V. Perchinunno, subjective limits of testimony Criminal Milan 1972, 147.
[2] Constitutional Court, January 12, 1977, No 6, Riv. Jur. School 1980, 45 (note). not against the principle of equality (Article. 3 cost.) The provision of Article. 350 cpp in that it allows, in addition to close relatives of Article. 307, paragraph 4, cp, who can refuse to testify, against the accused or one of the defendants, is in an emotional situation by family simply factual and objectively identical to that cited by the governed. art. Cpp 350.
[3] same effect, see Constitutional Court, May 16, 1994, No 179, in Arch new proc. pen. 1994, 478, Jur. cost. 1994, 1589 note Pitton, Cenci .
[4] V. Greve, The family secret: the testimony of close relatives, in The Testimony, 114. The author already noted the need to extend the power of abstention to those related by adoption of the ordinary, as well as the possibility of affiliation (now repealed by the institution. 77 l. 184/1983) generating normally very close emotional relationships, just family-style, fully in line with those that are to be protected by a provision such as art. 350 cp.p. .
[5] Court of Assizes of Turin, November 19, 1993, commenting on the decision see V. Pocar, deconstruction of the family, 191 et seq.; MA Cattaneo, Data ontological 193 ff.; V. Fanchiotti, Right to privacy, 195 ss.
[6] Court of Cassation, Criminal Section IV, January 5, 2006, n.109. The relationship of cohabitation, for purposes of calculating earnings for admission to legal aid, does not stop with the custodial status of the person concerned to legal aid.
[7] Civil Cassation, sez. I, August 8, 2003, No 11975. Family Law in 2004, 72. The legality of a civil case has fully considered incident on metrics, for the establishment and the clearance of the check divorzile, the stable coexistence "marital status" established by the applicant's spouse, severing any connection to plausible content ed il modello di vita economica caratterizzanti la pregressa fase di convivenza matrimoniale e, con ciò stesso, ogni presupposto per la riconoscibilità dell'assegno divorzile fondato sulla conservazione di esso.
