Comment on the Sentence Cass. pen. n. 38126/2023: Family Assistance and Violation of Obligations
The recent ruling of the Court of Cassation, n. 38126 of September 18, 2023, offers important insights into the crimes of violation of family assistance obligations and the related causes of non-punishability. In particular, the decision focuses on the issue of non-compliance with a judicial order regarding the custody of minors, a topic of great relevance in family law.
The Case and the Alleged Conduct
In the case at hand, the defendant A.A. was convicted for evading a ruling from the Court of Turin that established the visitation arrangements for her minor daughter. In particular, the Court of Appeal confirmed the conviction for the crime under Article 388, paragraph 2, of the Penal Code and the crime under Article 574-bis of the Penal Code, regarding conduct that impeded the exercise of parental responsibility by the father.
In the case at hand, the typical conduct of the crime is lacking, namely the transfer or "retention" of the minor abroad.
Relevant Legal Principles
The Court reiterated that the crime under Article 388, paragraph 2, of the Penal Code is completed in the place where the judge's prescriptions must be fulfilled. Therefore, the mere non-compliance with an order does not automatically constitute a crime, as evidence of fraudulent or simulated conduct is necessary. This principle is fundamental to ensure that not every non-compliance is punished, but only those characterized by bad faith behavior.
- The concept of "evasion" requires a quid pluris compared to simple non-compliance.
- Case law establishes that evidence of objective impossibility to comply excludes criminal liability.
- The defense must demonstrate the circumstances that would justify the non-compliance.
Conclusions
The sentence n. 38126/2023 represents an important affirmation of the principles protecting parental responsibility and the necessity for concrete evidence in the configuration of crimes related to custody. The Court effectively excluded the conviction of the defendant, highlighting that economic difficulties cannot be equated with fraudulent conduct. This approach underscores the importance of considering the context and the real possibilities of the parties involved, to ensure fair and balanced justice in the delicate field of family law.
