NOTORIETY OF LAW AND OF FACT. - Notorious in the vulgar sense is that which is the common property of public opinion, or is known to the majority of the members of a given community. In the juridical sense the concept of the notorious may seem clear, and yet it is difficult to determine, so much so that a glossator could assert "quotidie de notorio loquimur, sed quid sit notorium ignoramus".
I. IN CANON LAW
In the CIC "notorious" is a specific aspect of "public": those facts are held to be notorious which occurred in circumstances of such incontrovertible evidence that their existence or nature cannot be doubted in any way. A rule of law commonly accepted in canon jurisprudence and codified, not without certain limitations, in can. 1747 n. 1, is the brocard "notorium non eget probatione". By this it is meant that for notorious facts in a trial no proof is required and that the judge may make use of his private knowledge, thus in a certain way making an exception to the procedural principle "iuxta acta et probata".
Canon law also distinguishes a notoriety of law (notorietas iuris) and a notoriety of fact (notorietas facti), giving the corresponding meaning of the term in Book V of the CIC, that is, in penal law (can. 2197, nn. 2 and 3).
For a criminal fact to be called notorious notorietate iuris, it is required that it result either from a judgment that has become res judicata or from a judicial confession in accordance with can. 1750, that is, made in writing or orally before the judge, spontaneously or in response to questions put by the judge himself. Note that, if instead of becoming res judicata a restitutio in integrum of a judgment is granted, the effects of the notorietas iuris cease. The CIC further requires that the judgment be issued by the competent judge. Relative incompetence, if not raised, is cured; if the incompetence is absolute, the judgment is null and therefore there will be no notorietas iuris. Such facts do not need to be proved; however, if the notoriety derives from a judicial confession, the judge may also, when it is a matter of judicially protecting a public good, not release from the burden of proof. Against notorietas iuris some (Creusen) admit that solid proof may be opposed, and therefore they hold that in itself the force of notorietas iuris is less than that of notorietas facti.
A crime is said to be notorious notorietate facti when it is publicly known and was committed in such circumstances, e.g., in a public place, before several persons who can attest to it, before a public official, or when it is established by a public register or document, that it cannot be concealed in any manner nor excused by any legal resolution. For a criminal fact to have notorietas facti, it is necessary that the imputability also be notorious, since this is in fact an essential element of the crime as such; e.g., a homicide may be notorious as a fact, but not as a crime, if it is doubted that it was committed in legitimate self-defense.
It is disputed in doctrine whether the same notion of notoriety, as examined up to now, can also be applied in matters extraneous to penal law, and precisely with regard to matrimonial impediments. The majority of authors favor the negative solution. A matrimonial impediment, in fact, is defined by the CIC as public when its existence, or at least that of the fact from which the impediment derives (Commission for Interpretation, 25 June 1932: AAS, 24 [1932], p. 284), can be proved in the external forum; occult if it cannot be proved (can. 1037), independently therefore of the nature of the fact from which the impediment originates and of the knowledge of it that exists in the community.
The twofold figure and the discriminating scope of public and occult is therefore not identical to that which prevails in the classification of crimes. For impediments the CIC follows another criterion. Thus it can happen that a fact may be occult as a crime, public as an impediment.
The controversy has important applications with regard to the simple convalidation (v.) of Marriage, in matters of matrimonial banns and of dispensation from matrimonial impediments, and finally with regard to the right of the promoter of justice to act in a case of matrimonial nullity.
II. IN ITALIAN LAW
In the Italian legal system there are no institutions exactly corresponding to those of the notorietas iuris et facti of canon law; but, in correspondence with this, even if set out in a less prominent manner or, better, with less clear contours than the CIC did in can. 2197, nn. 2 and 3, there exists a rule, that of art. 115, paragraph 2, of the code of civil procedure.
That article, in fact, echoing the principle also affirmed in canon law, «notoria non egent probatione» (can. 1747), lays down that the judge, without need of proof, may base his decision on the notions of fact that fall within common experience; therefore the judge may readily take into account those facts which a man of average culture in that given time and in that given place knows.
A certain analogy with the notorietas facti of the CIC can be identified in art. 1168 of the Civil Code, that is, with regard to the bringing of the action for reinstatement of possession. The fourth paragraph of this article establishes, in fact, that reinstatement must be ordered by the judge on the mere n. of the fact, this being understood not according to the meaning given by paragraph 2 of art. 115 of the Code of Civil Procedure, but as proof so sufficient, even if not exhaustive, e.g., by means of public opinion, as to determine in the judge the persuasion that the dispossession of possession has occurred and thus to order the reinstatement of the same.
Not to be confused with what has been said thus far is the notarial act or act of n., which consists in a declaration made before the public official, authorized to receive it, by a certain number of persons, concerning the n. of a specific fact and concerning their personal knowledge of it.
The act of n., which is of French customary origin, is not a general means of proof in the Italian legal system; in fact it has no value outside the cases exhaustively established by law, since the declarations contained in it are collected without adversarial proceedings between the parties and without the prescribed procedural guarantees. When it is admitted, the value given to it does not exceed that recognized for the praesumptio hominis, so that proof to the contrary is permitted.
Most of the time declarations of n. are received by public officials in order to provide proof of the truth of a fact to the public administration.
Bibliography7 works
Francesco Ercolani