Commentary on Judgment No. 29723 of 2024: The Prohibition of Generic Mitigating Circumstances Prevaling Over Repeated Recidivism

Judgment No. 29723 of May 22, 2024, issued by the Court of Cassation, addresses an issue of particular relevance in Italian criminal law: the prohibition of generic mitigating circumstances prevailing over repeated recidivism. This judgment offers food for thought not only on current legislation but also on the constitutional implications arising from it.

Legal Context

The case in question concerns Article 69, paragraph four, of the Criminal Code, which establishes that generic mitigating circumstances cannot prevail over repeated recidivism as referred to in Article 99, paragraph four, of the same code. The Court declared the question of constitutional legitimacy raised regarding this provision manifestly unfounded, holding that it does not conflict with Articles 3, 25, and 27 of the Italian Constitution.

The Ruling's Headnote

Art. 69, paragraph four, of the Criminal Code - Prohibition of generic mitigating circumstances prevailing over repeated recidivism - Question of constitutional legitimacy for violation of Articles 3, 25, and 27 of the Constitution - Manifestly unfounded - Reasons. The question of constitutional legitimacy of Art. 69, paragraph four, of the Criminal Code, for conflict with Articles 3, 25, and 27 of the Constitution, in the part where it provides for the prohibition of generic mitigating circumstances prevailing over repeated recidivism referred to in Art. 99, paragraph four, of the Criminal Code, is manifestly unfounded, as it is a derogating provision from the ordinary discipline of balancing, which does not transgress into manifest unreasonableness or arbitrariness, as it refers to a common mitigating circumstance which, as such, does not have the function of correcting the disproportion of the sanctioning treatment, but of valorizing, to a limited extent, the subjective component of the crime qualified by the repeated relapse of the offender into conduct violating criminally sanctioned precepts.

This headnote clarifies how the legislator intended to protect society from those who, by virtue of repeated recidivism, demonstrate a propensity to offend. Although generic mitigating circumstances can in some cases reduce the sentence, in the presence of recidivism, their weight is limited so as not to nullify the deterrent effect of the penalty itself.

Implications and Final Considerations

The decision of the Constitutional Court is part of a broader debate concerning the function of mitigating circumstances and their application in cases of recidivism. The choice not to allow generic mitigating circumstances to prevail over repeated recidivism reflects a desire to ensure a balance between respect for the offender's rights and the need to protect society.

• Recidivism is considered an aggravating factor.
• Generic mitigating circumstances cannot be used to mitigate sentences for repeated offenses.
• The judgment affirms the legitimacy of current legislation.

In conclusion, judgment No. 29723 of 2024 reiterates the importance of a criminal justice system that, while respecting individual rights, must also protect the community from repeated criminal behavior. The protection of public safety must remain a priority, especially in contexts where multiple recidivism is evident. Therefore, the Court's decision not only responds to a legislative need but also represents a clear signal regarding the position of criminal law concerning recidivism.

Conclusions

Judgment No. 29723 of 2024 offers an important and current interpretation of the relationship between generic mitigating circumstances and recidivism, reiterating the need for a balanced approach in assessing criminal responsibilities. It is essential that the legal system continues to reflect on how norms can be applied to ensure justice and safety, without prejudice to the fundamental rights of individuals.