Judgment No. 16493 of 2024: Offer of Compensation and Recognition of Mitigating Circumstances

Judgment No. 16493 of February 23, 2024, issued by the Court of Cassation, offers significant insights into the issue of compensation for damages and mitigating circumstances related to the defendant's conduct. In particular, it clarifies the conditions necessary for the mitigating circumstance referred to in Article 62, No. 6 of the Criminal Code to be applied in the event of the victim's non-acceptance of compensation.

The Regulatory Framework

The provision in question, Article 62, No. 6 of the Criminal Code, stipulates that the mitigating circumstance can be recognized when the defendant has offered compensation that has not been accepted by the victim. However, the Court has emphasized that for the application of this mitigating circumstance, it is necessary for the offer to have been made in the form of a real offer, as established by Articles 1209 et seq. of the Civil Code. This implies that the defendant must deposit the sum to be compensated and make it available to the victim, thus allowing for a considered evaluation of the situation.

The Importance of a Real Offer

Offer of compensation - Non-acceptance by the victim - Recognition of the mitigating circumstance under Article 62, No. 6 of the Criminal Code - Conditions - Necessity for the proposal to have been made in the form of a real offer - Reasons - Factual situation. In terms of circumstances, the mitigating circumstance under Article 62, No. 6 of the Criminal Code can be recognized, in cases where the victim has not accepted compensation, only if the defendant has proceeded in the form of a real offer as per Articles 1209 et seq. of the Civil Code, by depositing the sum and leaving it available to the victim, so as to allow the latter to assess its suitability for compensating the damage and to decide with necessary consideration whether to accept it or not, and for the judge to appreciate its adequacy and its connection to the offender's genuine remorse. (Factual situation relating to a sum offered by means of a cashier's check, refused by the victim, in which the Court excluded the applicability of the mitigating circumstance, as the check had not been deposited and left available to the victim).

In the analyzed case, the Court excluded the applicability of the mitigating circumstance because the offer was made through a cashier's check that had not been deposited. This aspect is crucial, as it highlights that the defendant did not comply with the necessary formalities to allow the victim to properly evaluate the offer. The Court therefore held that without the deposit of the sum, the offer cannot be considered valid for the purpose of recognizing the mitigating circumstance.

Conclusions

Judgment No. 16493 of 2024 represents an important clarification on the matter of compensation and mitigating circumstances. It clarifies that an offer of compensation, to be effective, must follow precise procedures, otherwise it risks not being considered by the judge. This jurisprudential trend invites defendants to pay particular attention to the forms of compensation offers, as procedural correctness can significantly influence the assessment of their criminal liability.