Judgment No. 26309 of 2023: Provocation and Putativity in Crimes Against Honor

The recent ruling of the Court of Cassation No. 26309 dated March 23, 2023, has sparked extensive debate among experts in criminal law. In particular, the Court addressed the issue of provocation concerning crimes against honor, establishing that the non-punishability cause of provocation can also be recognized in cases of putativity. This principle, referenced in Article 599 of the Penal Code, offers new insights for jurisprudence and legal practice.

Provocation in Crimes Against Honor

Provocation, according to Article 599 of the Penal Code, is a cause of non-punishability for crimes against honor, such as defamation. The Court clarified that this cause can be applied even in situations where the defendant believes they are being provoked, even if such provocation has not actually occurred. This aspect of 'putativity' is fundamentally important as it broadens the scope of defense for defendants in cases of interpersonal conflicts.

Application in case of putativity - Possibility. In matters of crimes against honor, the cause of non-punishability of provocation, as per Article 599 of the Penal Code, can also be recognized at the putative level, according to Article 59, paragraph four, of the Penal Code, unlike the mitigating circumstance of provocation provided for in Article 62 no. 2 of the Penal Code, which, instead, is only objectively relevant.

Implications of the Ruling

The implications of this ruling are significant. Firstly, it recognizes a form of protection for the defendant, who can invoke provocation as a cause of non-punishability even in subjective situations. However, it is essential to note that this application is limited to non-punishability and not to the configuration of the mitigating circumstance. Indeed, while provocation as a cause of non-punishability can be assessed in putative terms, the mitigating circumstance of provocation requires an objective and not a subjective evaluation.

  • Provocation can be considered even if it has not actually occurred.
  • The recognition of putativity offers greater protection to individuals accused of crimes against honor.
  • The distinction between non-punishability and mitigating circumstance must be clearly understood to avoid misunderstandings in court proceedings.

Conclusions

In conclusion, judgment No. 26309 of 2023 represents a step forward in understanding provocation in crimes against honor. It highlights the importance of considering the subjectivity of the defendant and their perceptions in conflict situations. However, the distinction between the various forms of provocation and their legal consequences remains crucial to ensure fair and balanced justice. It is essential that lawyers and legal practitioners are aware of these nuances to provide an adequate and informed defense.

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