Commentary on Judgment No. 38288 of 2023: The Aggravating Circumstance in Robbery and its Conditions

Judgment No. 38288 of June 13, 2023, issued by the Court of Cassation, provides important clarifications regarding the aggravating circumstances applicable in cases of robbery. In particular, it analyzes the aggravating circumstance under Article 628, paragraph three, number 3-bis, of the Italian Criminal Code, which comes into play when the offense is committed in a place that hinders the victim's ability for private defense.

The Regulatory Context

Article 628 of the Italian Criminal Code governs the aggravating circumstances of robbery. The provision in question establishes that the aggravating circumstance also applies when the act is committed in a place where defense is made more difficult, not necessarily impossible. This interpretation broadens the conditions for the applicability of the aggravating circumstance, making the criminal response to property crimes more severe.

Aggravating circumstance under Article 628, paragraph three, number 3-bis, of the Italian Criminal Code - Existence - Conditions - Case law. The aggravating circumstance under Article 628, paragraph three, number 3-bis, of the Italian Criminal Code exists when the act is committed in a place that makes private defense more difficult without necessarily preventing it, it being sufficient that it is merely hindered. (In application of the principle, the Court held that the non-completion of the robbery due to the prompt reaction of the victim is not sufficient to cause an automatic exclusion of the aggravating circumstance in question).

Analysis of the Judgment

In the judgment under review, the Court rejected the appeal of a defendant, S. F., confirming the application of the aggravating circumstance in question. The Court emphasized that the prompt reaction of the victim, which prevented the completion of the robbery, does not automatically exclude the application of the aggravating circumstance. This aspect is fundamental, as it clarifies that the assessment of the aggravating circumstance does not depend on the outcome of the attempted robbery, but on the circumstances in which the crime was committed.

• If the crime is carried out in an isolated or sparsely populated area, the victim's defense is more difficult.
• The presence of physical obstacles or situations of vulnerability can be considered aggravating factors.
• The victim's prompt reaction does not exclude the aggravating circumstance but may influence the quantification of the penalty.

Conclusions

This judgment highlights the importance of a correct interpretation of criminal law, especially concerning property crimes. The aggravating circumstance under Article 628, paragraph three, number 3-bis, of the Italian Criminal Code applies more broadly than might have been thought. Robbery victims should be aware that, even in situations of prompt reaction, the context in which the crime occurs can lead to more severe consequences for the defendant. It remains essential to monitor the evolution of case law in this area to ensure adequate protection for citizens and an effective criminal response against predatory crimes.