Judgment No. 40301 of 2024: Stalking and the Aggravating Factor for Minors
The recent judgment No. 40301 of the Court of Cassation, issued on September 25, 2024, has raised an important discussion regarding the applicability of the aggravating factor provided for in Article 61, first paragraph, no. 11-quinquies of the Penal Code in the context of stalking. The decision focused on the interaction between the crime of stalking, governed by Article 612-bis of the Penal Code, and the specific aggravating factors related to the presence of a minor.
The Regulatory Context
The Italian Penal Code provides various aggravating factors for specific crimes, aimed at ensuring greater protection for vulnerable categories, such as minors. However, the Court established that the aggravating factor referred to in Article 61, first paragraph, no. 11-quinquies does not apply to the crime of stalking. This is because this aggravating factor is exclusively provided for non-negligent crimes against life, personal safety, and personal freedom, categories that do not include the crime of stalking.
Analysis of the Judgment
Stalking - Aggravating factor referred to in Article 61, first paragraph, no. 11-quinquies, Penal Code - Applicability - Exclusion - Reasons. The aggravating factor for acts committed in the presence or to the detriment of a minor referred to in Article 61, first paragraph, no. 11-quinquies of the Penal Code is not applicable to the crime of stalking, both because it is only provided for non-negligent crimes against life and personal safety and against personal freedom, among which the crime referred to in Article 612-bis of the Penal Code does not fall, and due to the existence of the specific aggravating circumstance with special effect referred to in Article 612-bis, third paragraph, of the Penal Code, which requires that the conduct be directed to the detriment of the minor, not merely the presence of the minor during the commission of the crime.
The Court emphasized that, although the legislator's intention was to protect minors from harmful behaviors, in the specific case of stalking there exists a specific aggravating circumstance. The latter requires that the perpetrator's conduct be specifically aimed at harming the minor, and not limited to the mere presence of the minor during the commission of the crime. This clarification is crucial to avoid interpretative confusion and to precisely delineate the scope of application of the various provisions.
Conclusions
Judgment No. 40301 of 2024 represents an important step forward in clarifying the regulations concerning stalking and the aggravating factor for minors. It reiterates the necessity for a careful and contextualized reading of the legal provisions, in order to ensure adequate forms of protection for the most vulnerable categories. It is essential for legal professionals and citizens to understand the significance of these decisions, which contribute to defining the boundaries between different types of crimes and their respective aggravating factors.
