Commentary on Judgment No. 27050 of 2023: Damage and Owner's Supervision

Judgment No. 27050 of April 12, 2023, by the Court of Cassation addresses a highly relevant theme in criminal law, namely the distinction between the crime of aggravated damage and simple damage conduct. In particular, the Court analyzed the case of damage to the window of a commercial establishment, which occurred in the presence of internal staff, excluding the existence of the aggravating circumstances provided for by the penal code.

The Case Examined by the Court

In this case, the defendant, S. M., had broken the window of a store where, at the time of the act, employees were present who had the opportunity to supervise what was happening outside. The Court held, based on Article 635, paragraph two, no. 1, of the penal code, that the presence of staff inside the commercial establishment could not be considered as exposing the property to public faith.

Damage to the window of a commercial establishment - Presence of the owner - Aggravating circumstance of exposure of the property to public faith - Exclusion - Reasons. The conduct of breaking the window of a commercial establishment, where the staff is present and has direct perception of what happens outside, does not constitute the crime of aggravated damage under Article 635, paragraph two, no. 1, of the penal code, in relation to the hypothesis under Article 625, paragraph one, no. 7, of the penal code, as the direct and continuous supervision by the owner of the property does not allow for the consideration that it is exposed to public faith.

The Implications of the Judgment

The judgment of the Court of Cassation provides an important clarification regarding the definition of "public faith" in the context of property protection. The presence of the owner or staff inside the commercial establishment implies active supervision, which excludes the possibility of considering the property as exposed to public faith, according to what is established by Article 625, paragraph one, no. 7, of the penal code.

  • Direct supervision excludes the aggravating circumstance.
  • The judgment aligns with previous case law, confirming a consolidated orientation.
  • The case emphasizes the importance of surveillance in commercial premises.

Conclusions

In conclusion, judgment No. 27050 of 2023 represents a fundamental reference point for understanding the dynamics and responsibilities related to damage to commercial property. The analysis of supervision and the presence of personnel within commercial establishments highlights how the legal protection of property cannot disregard the reality of the circumstances in which the damage occurs. This jurisprudential orientation is crucial for legal professionals and entrepreneurs, as it offers defense tools and clarifications on what actually constitutes an aggravating factor in the crime of damage.

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