Commentary on Judgment No. 49940 of 2023: Extortion and Balancing of Circumstances

Judgment No. 49940 of October 10, 2023, filed on December 15, 2023, offers important clarifications on the regulation of aggravating circumstances in the crime of extortion. Partially annulling the decision of the Preliminary Hearing Judge of Cremona, the Court specified how to interpret the reference made by Article 629, paragraph two, of the Criminal Code to Article 628, last paragraph, of the Criminal Code. This reference, as clarified by the Court, must be understood in relation to the current third paragraph of Article 628 and not to the fifth paragraph, which concerns the balancing of aggravating and mitigating circumstances.

The Reference and Aggravating Circumstances in the Crime of Extortion

The Court ruled that the reference to aggravating circumstances for the crime of extortion, expressly regulated by the legislator, does not extend to the specificities of balancing circumstances provided for the crime of robbery. In this regard, the judgment clarifies that, in the absence of specific regulation, provisions relating to the crime of robbery cannot be extended "in malam partem" to the case of extortion. This interpretation is fundamental to ensuring the correct application of the rules, avoiding confusion between the two types of offenses.

Reference made to the aggravating circumstances under Article 628, last paragraph, of the Criminal Code - Reference to be understood as referring to the current Article 628, third paragraph, of the Criminal Code - Consequences regarding the balancing of circumstances. The reference made, regarding the aggravating circumstances applicable to the crime of extortion, by Article 629, paragraph two, of the Criminal Code to Article 628, last paragraph, of the Criminal Code must be understood as referring, following the amendments made by Law No. 94 of July 15, 2009, to the current third paragraph of Article 628 of the Criminal Code and not to the fifth paragraph, concerning the balancing of aggravating and mitigating circumstances. (In its reasoning, the Court also specified that, in the absence of specific regulation, the peculiar regime provided for the balancing of circumstances in the crime of robbery by Article 628, fifth paragraph, of the Criminal Code, which excludes the aggravating circumstances referred to in numbers 3, 3-bis, 3-ter, and 3-quater of that provision from comparison, cannot be considered extended "in malam partem" to the crime of extortion).

Implications of the Judgment for Legal Practice

This judgment has several practical implications for legal professionals, including:

• Clarity in distinguishing between aggravating circumstances in the crime of extortion and those in the crime of robbery.
• The need to consider the balancing of circumstances according to the specific regulations relating to the crime of extortion.
• An invitation to stay updated on legislative and interpretative changes that may affect the management of extortion cases.

Conclusions

In conclusion, Judgment No. 49940 of 2023 represents a significant step forward in understanding the rules governing the crime of extortion. The Court has drawn a clear line between different types of offenses, clarifying the legislative reference and its consequences on the balancing of circumstances. This not only helps to prevent misinterpretations but also offers insights for a fairer application of justice.