NOTORIETÀ DI DIRITTO E DI FATTO (notorietas iuris et facti). — In the ordinary sense, something notorious is that which is a matter of public knowledge, or is known to most members of a given community. In the legal sense, the concept of notoriety may seem clear, yet it is difficult to define, so much so that one glossator was able to assert: « quotidie de notorio loquimur, sed quid sit notorium ignoramus ».
I. IN CANON LAW
In the CIC, notoriety is a specific aspect of publicity: facts are considered notorious when they have occurred in circumstances of such incontrovertible evidence that there can in no way be any doubt about their existence or nature. A rule of law commonly accepted in canonical jurisprudence and codified, with certain limitations, in can. 1747, n. 1, is the brocard « notorium non eget probatione ». This means that, in the case of notorious facts, proof is not required at trial and the judge may avail himself of his private knowledge, thus making, in a certain sense, an exception to the procedural principle « iuxta acta et probata ».Canon law also distinguishes between notoriety of law (notorietas iuris) and notoriety of fact (notorietas facti), giving the term its corresponding meaning in Book V of the CIC, that is, in penal law (can. 2197, nn. 2 and 3).
For a criminal act to be called notorious notorietate iuris, it must be established either by a judgment that has become res judicata or by a judicial confession in accordance with can. 1750, that is, one made in writing or orally before the judge, spontaneously or in response to the judge’s own questions. It should be noted that, if, instead of becoming res judicata, a judgment is granted restitutio in integrum, the effects of notorietas iuris cease. The CIC further requires that the judgment have been issued by the competent judge. Relative incompetence, if not raised, is cured; if the incompetence is absolute, the judgment is null and there is therefore no notorietas iuris. Such facts need not be proved; however, if the notoriety derives from a judicial confession, the judge may, when the judicial protection of a public good is involved, nevertheless not release the party from the burden of proof. Against notorietas iuris, some authors (Creusen) admit that solid proof may be brought, and therefore hold that, in itself, the force of notorietas iuris is less than that of notorietas facti.
An offense is called notorious notorietate facti when it is publicly known and has been committed in such circumstances—for example, in a public place, before several persons able to testify to it, before a public official, or when it is recorded in a public register or document—that it cannot in any way be concealed or excused by any legal determination. For a criminal act to possess notorietas facti, its imputability must also be notorious, since this is an essential element of the offense as such. For example, a homicide may be notorious as a fact but not as an offense if there is doubt that it was committed in legitimate self-defense.
It is disputed in legal doctrine whether the same notion of notoriety examined above can also be applied in matters outside penal law, specifically 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 arises (Commission for the Interpretation, 25 June 1932: AAS, 24 [1932], p. 284), can be proved in the external forum; it is occult when it cannot be proved (can. 1037), irrespective, therefore, of the nature of the fact from which the impediment originates and of the knowledge of it within the community.
The twofold classification and distinguishing scope of public and occult are therefore not identical to those prevailing in the classification of offenses. For impediments, the CIC follows another criterion. Thus, a fact may be occult as an offense but public as an impediment.
The controversy has important applications convalidation (v.) of Marriage, to the publication of matrimonial banns and the dispensation from matrimonial impediments, and finally to the right of the promoter of justice to bring an action in a case concerning the nullity of a marriage.
II. IN ITALIAN LAW
In the Italian legal system there are no institutions exactly corresponding to those of the notorietas iuris et facti in canon law; nevertheless, in keeping with this, although formulated in a manner less prominent or, better, less clearly defined in its contours than that adopted by the CIC in can. 2197, nos. 2 and 3, there exists a provision, namely art. 115, para. 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), establishes that the judge, without the need for proof, may base the decision on matters of fact falling within common experience; therefore, the judge may certainly take into account those facts known by a person of average education at that particular time and in that particular place.
A certain analogy with the notorietas facti of the CIC may be identified in art. 1168 of the Civil Code, with regard, that is, to the bringing of an action for reinstatement in possession. The fourth paragraph of this article provides, in fact, that reinstatement must be ordered by the judge on the basis of the mere n. of the fact, this being understood not according to the meaning given in para. 2 of art. 115 of the Code of Civil Procedure, but as proof so sufficient, even if not conclusive—for example, through public opinion—as to persuade the judge that dispossession has occurred and thus lead him to order reinstatement in possession.
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 their personal knowledge of II.
The act of n., which is of French customary origin, is not, in the Italian legal system, a general means of proof; indeed, it has no value outside the cases expressly established by law, since the declarations contained therein are collected without the parties’ participation in adversarial proceedings and without the procedural safeguards prescribed by law. Where it is admitted, the value attributed to it does not exceed that accorded to the praesumptio hominis, and contrary proof is therefore permitted.
For the most part, declarations of n. are received by public officials in order to provide the public administration with proof of the truth of a fact.