Commentary on Judgment No. 28218 of 2023: Domestic Violence and Unfavorable Rules

The recent judgment No. 28218 of January 24, 2023, by the Court of Cassation offers important reflections on the application of the rules concerning domestic violence and the succession of laws. In particular, the examined case deals with the complex issue of the unfavorable subsequent rule, a crucial aspect for the protection of the rights of victims of domestic crimes.

The Unfavorable Subsequent Rule

The Court clarified that, in the case of violence against family members and cohabitants, the applicability of the unfavorable subsequent rule is limited to specific situations. According to the maxim expressed in the judgment, "Habitual crime - Succession of laws - Unfavorable subsequent rule - Applicability - Conditions. In matters of violence against family members and cohabitants, where part of the conduct is committed under the validity of the incriminating provision of Article 572 of the Penal Code, as modified in a detrimental sense by Article 4, paragraph 1, letter d), Law No. 172 of October 1, 2012, the unfavorable subsequent rule applies to the offender only if after its entry into force a sufficient segment of conduct, in itself, is present to integrate the habituality of the crime."

Habitual crime - Succession of laws - Unfavorable subsequent rule - Applicability - Conditions. In matters of violence against family members and cohabitants, where part of the conduct is committed under the validity of the incriminating provision of Article 572 of the Penal Code, as modified in a detrimental sense by Article 4, paragraph 1, letter d), Law No. 172 of October 1, 2012, the unfavorable subsequent rule applies to the offender only if after its entry into force a sufficient segment of conduct, in itself, is present to integrate the habituality of the crime.

This consideration is fundamental to understand how legislative changes can influence conduct that has already occurred, particularly when it comes to habitual crimes. The rule that worsens the position of the offender cannot be applied retroactively unless new sufficient segments of conduct emerge that configure the habituality of the crime itself.

Implications of the Judgment

The implications of judgment No. 28218 extend well beyond the specific case. Here are some key considerations:

  • The protection of victims of domestic violence must be balanced with the rights of the offender, avoiding retroactive applications of punitive rules.
  • It is essential that legislative changes are clear and understandable so that all actors in the legal system can operate in compliance with the law.
  • The Court reaffirms the principle of legality, according to which no one can be punished unless based on a law that expressly provides for the crime.

Conclusions

In summary, judgment No. 28218 of 2023 represents an important reference point for jurisprudence in the area of domestic violence. It clarifies the delicate balance between the protection of victims and the respect for the rights of the offender, emphasizing the importance of a correct application of the rules in force. The issue of succession of laws and unfavorable subsequent rules remains a crucial theme for criminal law, raising significant questions about justice and equity in the treatment of domestic crimes.

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