Commentary on Judgment No. 38447 of 2023: The Minor Significance of the Offense and the Statutory Penalty

Judgment No. 38447 of 06/08/2023 by the Court of Cassation, presided over by Judge C. Z., provides important clarifications regarding the application of the institute of the minor significance of the offense, a delicate area of Italian criminal law. In particular, the Court emphasizes that, to assess the existence of the prerequisites for the application of this institute, it is crucial to consider the statutory penalty provided for the crime, disregarding any preferential reductions resulting from the chosen procedure.

The Regulatory Context

The primary regulatory reference for the minor significance of the offense is Article 131-bis of the Criminal Code, which establishes that punishability may be excluded when the act does not present a disvalue such as to justify a criminal response. However, as clarified by the Court of Cassation, it is essential to refer to the statutory penalty, which represents the sanctioning framework provided for the crime in question.

Minor significance of the offense - Statutory penalty - Preferential reduction - Relevance - Exclusion. In terms of excluding punishability for the minor significance of the offense, in order to examine the existence of the prerequisites for the application of the institute, regard must be had to the statutory penalty provided for the crime, irrespective of any preferential reductions for the chosen procedure.

This maxim highlights that the assessment of the minor significance of the offense cannot disregard the seriousness of the crime itself and should not be influenced by any penalty reductions linked to alternative procedures. The Court, therefore, clarifies that the mere choice of a preferential procedure should not diminish the assessment of a crime in terms of its disvalue.

Practical Implications of the Judgment

The Court's decision has several practical implications. Firstly, the lower courts will need to pay particular attention when assessing the statutory penalty when ruling on the application of the minor significance of the offense. Furthermore, lawyers will need to be able to argue effectively on the minor significance in relation to the prescribed penalty, considering that any preferential reductions will not be relevant for the application of this institute.

• Clarity in the assessment of the statutory penalty.
• Need for solid arguments for the request to exclude punishability.
• Impact on defense strategies in criminal proceedings.

Conclusions

In conclusion, Judgment No. 38447 of 2023 represents an important milestone in Italian jurisprudence, clarifying the modalities for applying the minor significance of the offense. The Court of Cassation, with this ruling, reiterates the importance of the statutory penalty in the process of excluding punishability, highlighting that what matters is the intrinsic seriousness of the crime and not any reduced sanctions for the chosen procedure. This distinction is crucial to ensure the correct application of justice and to prevent alternative procedures from unduly influencing the assessment of criminally relevant facts.