6. Subornation of False Testimony, False Reference or False Interpretation

"non si deve confondere un involontario errore della mente colla dolosa alterazione del vero che propriamente costituisce il reato di cui (in questo articolo)"150 .

It is no mistake or erroneous expression of opinion or inadvertence, nor even carelessness or unskillfulness that the law punishes here, but the deliberate and intentional perversion of the truth.

For the rest we can make reference to what we have said concerning the crime of false testimony which "mutatis mutandis" applies.

6. Subornation of False Testimony, False Reference or False Interpretation

Section 100 lays down:

"Whosoever, in any civil or criminal proceedings, suborns a witness, a referee, or an interpreter, to give false evidence or to make a false report or a false interpretation, shall, on conviction, be liable:

(a) where the false evidence, report or interpretation has been given or made, to the punishment to which a person giving false evidence would be liable

(b) where there has only been an attempt of subornation of a witness, a referee, or an interpreter, by means of threats, bribes or promises, to the same punishment decreased by one or two degrees."

Subornation is the instigation to commit any one of the crimes mentioned in this section. It is the procuring of a witness to make a false testimony or of a referee to make a false report, or of an interpreter to make a false interpretation, in each case in a civil or criminal cause. It has not been considered by our legislator as comprised in the general class of cases of “Concursus delinquentium”, that is, in other words, as a form of a criminal participation, as an accomplice or co-principal, in the crime of false testimony, false reference or false interpretation; but has been created as a distinct substantive offence. It is, nevertheless, intimately connected with those crimes and, like them, it constitutes an offence against the administration of justice.

Other systems of law and theoretical writers consider subornation as nothing more than a form of complicity; but for them the offence is punished only when the false

150 Maino, para. 1128

witness, referee or interpreter has actually given false evidence or made a false reference or interpretation. It could not be otherwise: for no one can speak of complicity unless the principal offence has been committed.

As, however, our law punishes subornation even when it has been unsuccessful or merely attempted, inasmuch as a witness, referee or interpreter sought to be suborned has not, in fact, given false evidence or made a false reference or interpretation, so the necessity of making of subornation a crime “sui generis” distinct and independent from the crime of false testimony, false reference or false interpretation, is obvious.

For purpose of punishment the law distinguishes the case in which the crime of false testimony, false reference or false interpretation has actually taken place from the lease in which it has not. With regard to the former case, it is to be carefully noted that it is not necessary that the false witness, referee or interpreter should have been sentenced. Even if the witness, referee or interpreter has been acquitted of the charge by reason of some personal ground of defence, the person who had suborned him will not be exempt from responsibility for the subornation, if the falsity of the testimony, reference or interpretation is Subjectively established151 . Also, when our law speaks of the false testimony, reference or interpretation having taken place, it does not mean that it is necessary to prove that it has objectively influenced the event of the proceedings: what is necessary is merely that the false testimony, reference or interpretation has been given in the cause to the possible prejudice of justice.

As we have already said, our law punishes also attempted subornation, but only where the attempt is made by means of threats, gifts or promises. When the subornation has achieved its object, and has actually been followed by the false evidence, reference or interpretation, it is immaterial how or by what means the witness, referee or interpreter was suborned; but when there has been only a fruitless attempt to suborn, this is not punishable unless the attempt was made by means of threats, gifts or promises:

“La subornazione seguita da effetto e’ punita in qualunque forma sia avvenuta, semprecchè le istigazioni del subornatore siano state la causa determinante del reato

151 Pessina, op. cit., Vol. II, pg. 243; Chaveau et Helie “Theorie ecc.”, Vol. IV, n. 1823-1824