Commentary on Judgment No. 26223 of 2023: Damage Repair and Continuing Offence

Judgment No. 26223 of May 4, 2023, filed on June 16, 2023, offers important clarifications regarding the application of mitigating circumstances in the context of continuing offences. In particular, the Court addressed the issue of damage repair and how it can influence the quantification of the penalty, highlighting the crucial role of compensation in determining the judiciary's attitude towards the defendant.

The Principle of Damage Repair

The Court of Cassation, with the judgment under review, reiterated that damage repair pursuant to Article 62, no. 6, of the Criminal Code is a fundamental element that can lead to the application of mitigating circumstances. However, it is essential that the repair is carried out adequately. If the amount paid is less than the total damage, the Court has established that the compensation must be allocated to the most burdensome debt, in accordance with Article 1193 of the Civil Code.

Damage repair pursuant to Article 62, no. 6, of the Criminal Code – Amount less than the total – Allocation criteria – Article 1193 of the Civil Code – Applicability – Consequences – Case law. In the context of a continuing offence, the mitigating circumstance referred to in Article 62, no. 6, of the Criminal Code, where the repair has been made by paying a sum less than the total amount of damage, must be assessed and applied – in the absence of a different indication from the perpetrator – by allocating the compensation to the most burdensome debt, based on the criteria set out in Article 1193 of the Civil Code, with the consequence that the reduction will only apply if the amount paid as compensation is at least equal to the damage caused by the most serious criminal conduct judged.

Implications of the Judgment

This judgment has several practical implications for lawyers and defendants. Firstly, it clarifies that mere damage repair is not always sufficient to obtain a reduction in the penalty. It is crucial that the amount paid is in line with the damage suffered by the victim. Otherwise, the mitigating circumstance may not be applicable. Therefore, it is essential for legal counsel to assist their clients in managing repairs, considering the allocation criteria provided for by the Civil Code.

Conclusions

In conclusion, Judgment No. 26223 of 2023 represents an important guide for the assessment of mitigating circumstances in cases of continuing offences and damage repair. It provides a decisive clarification on how allocation criteria should be applied, highlighting the importance of proper compensation management. Lawyers and industry professionals must pay particular attention to these aspects to ensure effective defence in compliance with current regulations.