Commentary on Judgment no. 639 of 2024: Stalking and Ex Officio Prosecution

Judgment no. 639 of 2024, issued by the Court of Cassation, represents an important evolution in Italian jurisprudence concerning stalking, particularly regarding ex officio prosecution in cases of a warning issued by the police commissioner. This decision offers significant food for thought, both legally and practically, for lawyers and citizens involved in situations of violence and stalking.

The Legal Nature of the Warning

According to the ruling, the police commissioner's warning, provided for by art. 8, paragraph 2 of Legislative Decree no. 11 of February 23, 2009, is not considered a condition for the prosecution of the crime, but rather an administrative act that determines a status for the recipient. This means that, in the presence of a warning, the crime becomes subject to ex officio prosecution. The amendment made by Law no. 168 of November 24, 2023, has extended ex officio prosecution to crimes committed by individuals already warned against persons other than the original victim.

Stalking - Ex officio prosecution for the case of a warning by the police commissioner - Legal nature of the warning - Art. 8, paragraph 4, Legislative Decree no. 11 of February 23, 2009, converted into Law no. 38 of April 23, 2009, as amended by art. 1, paragraph 3, Law no. 168 of November 24, 2023 - Unfavorable change in the crime's prosecution regime - Prohibition of retroactivity of a more unfavorable criminal law - Violation - Non-existence. In terms of stalking, the police commissioner's warning, provided for by art. 8, paragraph 2, Legislative Decree no. 11 of February 23, 2009, converted into Law no. 38 of April 23, 2009, does not constitute a condition for the prosecution of the crime, but is an administrative act that establishes a status for the recipient, making the crime subject to ex officio prosecution. Therefore, following the amendment made by art. 1, paragraph 3, Law no. 168 of November 24, 2023, to paragraph 4 of the aforementioned art. 8, which extended ex officio prosecution to the crime committed by a person already warned against a person other than the original victim, the violation of the prohibition of retroactivity of criminal law, which does not apply to the effectiveness of an administrative measure issued before the commission of the criminal offense, must be excluded.

The Issue of Retroactivity

A crucial aspect of the judgment concerns the prohibition of retroactivity of criminal law. The Court clarified that the legislative amendment does not constitute a violation of this prohibition, as the warning is an administrative measure that does not affect criminal law in a restrictive sense. This clarification is fundamental to ensuring that the rights of the accused are respected, while seeking to protect victims of stalking.

Practical Implications and Conclusions

The practical implications of judgment no. 639 of 2024 are manifold:

• Clarity on ex officio prosecution for stalking offenses, even in cases of prior warnings.
• Strengthened protection for victims of stalking.
• Clarity on the limits of the retroactivity of criminal law, safeguarding the rights of the accused.

In conclusion, judgment no. 639 of 2024 represents a significant step forward in the fight against stalking, emphasizing the importance of a balance between the protection of victims and the rights of the accused. It is essential that legal professionals and citizens are informed about these dynamics to best address such delicate situations.