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Basic principles of Italian criminal law

26 March 2012, Nicola Canestrini

?No one can be punished if not in compliance with a law that was in force before the act was committed?

An absolutely central and fundamental principle of the Italian legal system is that of legality.

It is affirmed not only in the Italian Criminal Code (Article 1 of which states that ?no one can be punished for an act that is not expressly considered an offence by law, nor can sanctions be imposed that are not established by the law?), but also by the Constitution (Article 25 of which states that ?no one can be punished if not in compliance with a law that was in force before the act was committed?).

Corollaries of the principle of legality provided for in the code and the Constitution are:

- the prohibition to interpret criminal law by analogy (also considered by the prevailing doctrine as operating only in malam partem),

- the express determination of the offences (whereby it is the rule itself which should exactly and precisely distinguish an unlawful act from an act that is irrelevant from a criminal point of view, by avoiding ambiguous formulations that oblige the judge to act as a referee and make the decision) and

- the prohibition against the retrospective application of a criminal law having unfavourableconsequences for the offender.

Another fundamental principle of Italian law is that neither a citizen nor a foreigner can pleadignorance of the law as an excuse for not complying with the law. All people are equal before the law without privileges or exemptions, regardless of sex, social status, or race. Evidentiary rules under Italian law are contained in the Italian Code of Criminal Proceedings.

Indeed, Italian criminal law is codified in the Codice Penale (Criminal Code), in special legislation, and, with regard to procedural rules, in the Codice di Procedura Penale (Code of Criminal Procedure).

The Italian Criminal Code is divided into a general part, which contains the provisions that can be applied to all offences, and a specific part, which provides for single criminal offences. It is composed of three books. The first book, which contains the general part of the Code, is entitled ?Crimes in general?. The second and third books, relating to the specific part, are entitled ?Types of Crimes? and ?Types of Misdemeanours? respectively, and contain lists of the various offences. These are divided into categories (such as life and physical integrity) and grouped together under headings and sub-headings.

Criminal offences are divided into two main categories: crimes and misdemeanours. The discretionary criteria used in the Criminal Code to discern between these two types of criminal acts are of an exclusively formal character and depend on the different types of penalties envisaged.

In the case of crimes these are the life sentence, the prison sentence and heavy fines (capital punishment is not permitted by Constitution), while for misdemeanours they consist of arrest and lighter fines. The latter infringements of the law are the less serious forms of criminal offences, as is confirmed by the sanctions envisaged for them, which are significantly less severe than those applied for crimes. The differentiation between the types of offences also leads to a partial difference in the law. The main differences consist in the fact that attempt is envisaged for crimes only, and that the normal criterion for indictment is "dolus" while "culpa" is required only for those cases specifically envisaged by the law.

This division in types of offences is not only present in the Code, but also within the framework of the complementary laws.

The minimum age of criminal responsibility is set at 14 years (Article 97 of the Criminal Code). Any minor who has not attained that age cannot be indicted for any type of illegal activity whatsoever, since it is presumed that the minor is incapable of understanding and intent. In certain circumstances, persons aged under 14 can be recognised as being socially dangerous and can therefore be subjected to security measures.

It must also be noted that persons aged between 14 and 18 years are not presumed to have the capacity of understanding and intent. In order to establish whether a minor aged between 14 and 18 years should be subjected to a penalty, the adjudicating body must, for each case and on the basis of the concrete evidence put before the court, ascertain whether the perpetrator of the crime had reached an adequate level of maturity and psychological development at the moment of the offence to understand the seriousness of the act (Article 98 of the Criminal Code).

If the offender had attained the age of eighteen when the offence was committed, and is therefore considered an adult, it is presumed that he/she is capable of understanding and acting intentionally and is therefore criminally liable. This presumption may be rebutted, however, if it is proved that the offender was unable to understand and act intentionally at the moment of the offence, due to infirmity (Article 88 of the Criminal Code) or other causes. If this is proved, the offender cannot be considered liable for the offence and therefore no penalty can be imposed on him/her, with the exception of those security measures that may be applied if the offender is recognised to be socially dangerous.

Absolute liability as a criterion for indictment is expressly envisaged in the general part of the Criminal Code. In particular, it is included in Article 42, paragraph 3 of the Criminal Code which (after establishing in the first articles of the Code that no one can be punished for an act committed without awareness and intent) states that ?the law should determine those cases which should be otherwise charged to the agent, as a result of the act or omission?.

According to the Code, therefore, absolute liability is considered an exceptional case for indictment, while the general criterion remains that of responsibility due to "culpa". In fact, when the Criminal Code was approved in 1930, hardly anyone queried the hypothesis of absolute liability for exceptional cases.

This began to change, however, when the Constitution came into force: Article 27, paragraph 1 of the Constitution states that ?criminal responsibility is personal?. Some legal scholars began to interpret this provision as being synonymous with ?criminal responsibility due to one's own culpability? in the sense that the criteria for indictment should be limited exclusively to intent and culpability, in order to be consistent with the Constitution.

For numerous years, the Constitutional Court did not take a precise stance on this point until, with its decisions 364 and 1055 of 1988, it expressly accepted the above-mentioned interpretation of Article 27. For more than a decade therefore, the Constitutional court declared that absolute liability in criminal matters was incompatible with the principles of the Italian Constitution.

Following the decisions of the Constitutional Court cited above, it proved necessary to transform the hypotheses of absolute liability as recognised by the Italian criminal law system into offences based on the principle of culpability.

This work was only partially completed when, in 1990, the laws relating to aggravating circumstances excluded the cases of absolute liability. This was not applied to some cases, however, such as offences committed without intent, the death of a kidnapped person during the kidnapping and mistaking the age of the victim during a sexual offence. All these cases of unintentional consequences are considered from the point of view of the direct cause, without examining whether the consequence could have been avoided or not. They therefore go against the constitutional principle of nullum crimen sine culpa. If lawmakers continue to be slow in adapting the laws regulating these offences to Article 27 of the Constitution, and if it proves impossible to reinterpret the incriminating provisions so that they comply with the Constitution (which some believe is possible for some cases of unintentional offences or for offences that produce unintentional effects), then the Constitutional Court will have to decide on their consistency with the Constitution.

In the Italian system, criminal responsibility was limited exclusively to physical persons until 2001.

Since 2001 (law 231/2001), following the recommendations of legal scholars, the Italian criminal system recognises even the subjective responsibility of parties other than physical persons, introducing the liability of legal persons, in order to comply with the obligations deriving from international conventions.

The Italian Criminal Code envisages various legal excuses. Some of these are contained in its general part (Articles 50-54), since they can be applied to more or less any type of offence, while others are contained in the specific part, alongside the specific crimes to which they can be applied.

The legal excuses provided for in the general part of the Code comprise consensus of the injured party, legitimate defence, state of need, exercise of a right, carrying out of a duty and lawful use of arms.

The possibility of analogically applying the decriminalising factors is also very controversial. Jurisprudence avoids applying this type of excuse since it is believed to contrast with the principle of legality. There are contrasting opinions on this point. Some legal scholars share the concern expressed by jurisprudence, while others consider it to be possible by noting that, since the principle of legality is not based on the certainty of law, but on favor libertatis, it is not based on a pro reo interpretation of analogy.

Crimes are indictable only within a given period after they have been committed, except for some of the most serious crimes, which have no time limitation. The running out of the period of limitation is regulated by Article 157 of the Criminal Code which establishes different periods according to the type of penalty established for the various crimes. Time limits range from twenty years of debarment for those crimes for which imprisonment of not less than 24 years is envisaged, to two years for misdemeanours for which only fines are envisaged.

Limitation is suspended or interrupted in certain circumstances listed in Articles 159 and 160 of the Criminal Code. Furthermore, these circumstances are connected to the various phases of the trial. Thus, for example, the period of limitation is interrupted when the sentence is pronounced. In any case, the period of limitation established by Article 157 of the Criminal Code cannot be extended by more than one-half.

It is worth underlining that the Constitutional Court has declared the law that prohibits the defendant from renouncing the running out of the period of limitation as being unconstitutional. Following this decision, those who claim to be innocent can ask for the trial to continue even if the time limit has already run out, so as to prove their complete innocence (the trial can, however, result in a conviction of the defendant).


Based on the research of the European Institute for Crime Prevention and Control, "Criminal Justice Systems in Europe and North America - ITALY", Adelmo Manna & Enrico Infante, Helsinki, Finland 2000 (www.heuni.fi).