Decriminalization underway! And the previous civil penalties?

The unprecedented purge of instances performed by the Lawmaker in Italian criminal law through Legislative Decrees n. 7 and n. 8 dated 2016 and entered into force less than one month ago, has started to show the difficulties encountered in putting them into practice.

A clear example of this is Order n. 7125 by which, on 24 February 2016, the Fifth Section of the Italian Supreme Court submitted for decision to the same Court sitting as a unified bench, a matter that has raised concern among trial judges: namely, will the repeal of the offences set forth by Legislative Decree n. 7 of 2016, affect also the civil penalties, if any, – especially, punitive damage awards – imposed by non-final decisions?

By decision n. 7124 rendered on the same date of issuance of the Order, the same Section of the Italian Supreme Court has in fact confirmed that no problem exists if the civil penalties are imposed as a result of a final decision, and has specified that if the enforcement judge deems that no offence has been committed because that offence was repealed, this will not affect the civil charges.

After all, the same art. 2 of the Italian Criminal Code leaves no room for doubt when it states that if an act is deemed no longer unlawful, this does not mean that the same act ceases to be unlawful also from a civil law perspective.

The case addressed in the Order is however different, because the relevant punishment had not yet become final. The decision of the Court of Appeal submitted for review to the Italian Supreme Court concerns the punishment imposed to a couple charged with a number of offences, including insulting words. Following the coming into force of Legislative Decree n. 7 of 2016, the crime of “insulting someone” has been “converted” into a civil wrongdoing that is punished with two different types of fines:  the first one to be paid, as it happened in the past, to the Cassa delle ammende (the Italian Fines Fund), and the second one, recently introduced, a sort of punitive damage, to be paid to the offended party.

But, if an act is deemed no longer an offence, what will happen to the actual (non-final) punishment, i.e., the compensation awarded by the trial judge?

The whole picture becomes even more complicated by comparing the provisions of the two abovementioned decrees. In Legislative Decree n. 8/2016, in fact, it is expressly provided that if a punishment is imposed in relation to a conduct that is no longer criminally relevant, the judge of appeal shall, on the one hand, declare that, pursuant to the law, the act is no longer an offence, and, on the other hand, decide only in relation to the portion of the decision that relates to civil interests.

We do not understand why the Lawmaker has failed to include an analogous provision in Legislative Decree n. 7.

Ubi lex voluit dixit, ubi noluit tacuit? Should that be the case, the decriminalization of an offence would result in the civil portion of the punishment be also affected, and the relevant effects would undisputedly be depriving for the civil party which, after having faced, perhaps – as in the case under the Order at issue – 3 different levels of criminal proceedings, would be forced to start a new proceeding before a civil court in an attempt to be awarded compensation for the damage.

To avert the effects of such an interpretation, the Fifth Section of the Supreme Court has suggested that the Supreme Court sitting as a unified bench treats as an oversight of the Lawmaker the fact that a provision similar to the one contained in Legislative Decree n. 8 of 2016 has not been included in Decree n. 7, and emphasizes the portions of the two decrees that are consistent one with the other, especially in consideration of the fact that the proceedings related to the offences set forth in Legislative Decree n. 7, all of them prosecutable on complaint, are exactly the ones in which the probability that the right to initiate a civil action is exercised is higher.

Let’s therefore wait and see how the Supreme Court sitting as a unified bench will clarify the issue.

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