Judgment No. 40301 of 2024: Stalking and the Aggravating Circumstance for Minors

The recent judgment No. 40301 of the Court of Cassation, issued on September 25, 2024, has sparked an important discussion regarding the applicability of the aggravating circumstance provided for by Article 61, first paragraph, no. 11-quinquies of the Italian Penal Code in the context of stalking offenses. The decision focused on the interaction between the crime of stalking, governed by Article 612-bis of the Penal Code, and specific aggravating circumstances related to the presence of a minor.

The Regulatory Framework

The Italian Penal Code provides for various aggravating circumstances for specific crimes, intended to ensure greater protection for vulnerable categories, such as minors. However, the Court has established that the aggravating circumstance referred to in Article 61, first paragraph, no. 11-quinquies does not apply to the crime of stalking. This is because such an aggravating circumstance is provided for exclusively for non-negligent offenses against life, personal safety, and personal liberty, categories to which the crime of stalking does not belong.

Analysis of the Judgment

Stalking - Aggravating circumstance under Article 61, first paragraph, no. 11-quinquies, of the Penal Code - Applicability - Exclusion - Reasons. The aggravating circumstance of the act committed in the presence of or to the detriment of a minor under Article 61, first paragraph, no. 11-quinquies of the Penal Code is not applicable to the crime of stalking, both because it is provided for only for non-negligent offenses against life and personal safety and against personal liberty, among which the crime under Article 612-bis of the Penal Code is not included, and due to the existence of the specific special effect aggravating circumstance under Article 612-bis, third paragraph, of the Penal Code, which requires not merely the presence, but that the conduct is directed to the detriment of the minor.

The Court emphasized that, although the legislator's intention was to protect minors from harmful behavior, in the specific case of stalking, there is a specific aggravating circumstance. The latter requires that the perpetrator's conduct is 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 define the scope of application of the various provisions.

Conclusions

Judgment No. 40301 of 2024 represents an important step forward in clarifying the rules concerning stalking and the aggravating circumstance for minors. It reiterates the need 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 scope of these decisions, which contribute to defining the boundaries between different types of offenses and their respective aggravating circumstances.