Theft of Foodstuffs and State of Necessity: Commentary on Judgment No. 38888 of 2023

The recent judgment No. 38888 of June 13, 2023, filed on September 25, 2023, issued by the Court of Cassation, offers important insights into the configurability of the crime of theft, particularly when the theft concerns foodstuffs of modest value and is committed by individuals in a state of indigence. This case raises significant questions regarding the possibility of invoking the state of necessity as a justification for the crime of theft.

The Context of the Judgment

The Court affirmed that, while recognizing the subject's condition of indigence, the justification of the state of necessity cannot be applied in the absence of a present danger of serious harm to the person. This principle is fundamental to understanding how Italian law interprets the dimension of need and its relationship with criminally relevant behaviors.

In particular, the judgment clarifies that economic difficulties, however severe, cannot justify the theft of goods if such goods can be obtained through normal social assistance channels. The Court therefore rejected the appeal, arguing that the subject, despite being malnourished, was not in a condition of imminent danger that would justify the act of theft.

The Ruling's Headnote

Theft of foodstuffs of low economic value committed by a person in a general state of indigence - Crime - Configurability - State of Necessity - Applicability - Exclusion - Reasons. The conduct of a malnourished person in a general state of indigence, conditions of weakness that can be addressed by ordinary social protection systems, who appropriates foodstuffs of low economic value, constitutes the crime of petty theft for need, as per Article 626, paragraph one, no. 2, of the Criminal Code. The justification of the state of necessity, which presupposes a present danger of serious harm to the person, not voluntarily caused and not otherwise preventable, is not applicable.

This headnote clearly highlights that the condition of indigence, while it may evoke understanding and pity, does not in itself constitute a justification for committing a crime. The Court's interpretation aligns with Article 626 of the Criminal Code, which considers petty theft as a punishable, though not necessarily grave, offense if committed out of necessity.

Social and Legal Implications

Judgment No. 38888 prompts reflection on social policies and the need to strengthen assistance systems for individuals in economic difficulty. It is crucial for society to consider how to prevent situations that may lead to the commission of crimes out of necessity, ensuring access to adequate sustenance and services.

• Strengthening of social welfare policies.
• Greater sensitivity from institutions towards situations of indigence.
• Legal and social education to prevent criminal behavior in situations of need.

Conclusions

In conclusion, judgment No. 38888 of 2023 represents an important reference point for Italian criminal law, clarifying the limits of the state of necessity justification in cases of theft. It underscores the need to address the root causes of indigence rather than merely punishing criminal behavior. Only through an integrated approach between law and welfare can truly fair and solidarity-based justice be guaranteed.