Facial deformation and permanent disfigurement: penalties too stiff for mild cases
Protection is justified but the judge must be able to modulate excessively stringent penalties. Also rejected was the requirement of perpetuity of the disqualification penalty
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Key points
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The failure to provide for a common mitigating factor for the offence of deformation of the appearance of the person by means ofpermanent injuries to the face, in the mildest forms, is unlawful. The offence examined is in fact such as to encompass even relatively minor injuries, procured in contexts of minor and occasional aggression and without intentional intent. Similarly, given its breadth, themandatory and perpetuity of the disqualification sanction must also be removed. The Constitutional Court, with ruling number 83, while reaffirming the importance of enhanced protection, drops a piece of the Red Code (Article 583-quinquies of the Criminal Code inserted by law number 69/2019) concerning the penalties for the crime of deforming the appearance of the person by means of permanent facial injuries.
Excessively harsh punishments
.Paragraph 1 of Article 583-quinquies was declared unconstitutionally unlawful in so far as it does not provide that the penalty laid down therein - imprisonment of eight to fourteen years - is to be reduced, to an extent not exceeding one third, when, on account of the nature, kind, means, manner or circumstances of the act or the particular tenuity of the damage or of the danger, the fact is slight; the second paragraph of the same article has been declared constitutionally illegitimate insofar as it establishes that the conviction or plea bargaining for the offence in question entails the automatic and perpetual disqualification from any office pertaining to guardianship, curatorship and support-administration, instead of providing that this ancillary punishment is to be applied optionally by the judge, according to the ordinary discretionary criteria and in compliance with the legal limit of a maximum duration of ten years.
The re-educative purpose of punishment
.The law judge upheld the complaints raised by the Judges of the preliminary hearing of the Courts of Taranto, Bergamo and Catania and affirmed the violation of Articles 3 and 27, paragraphs 1 and 3, of the Constitution, as regards the principles of proportionality, individualisation and re-educational aim of punishment, due to the excessively rigid nature of the punitive treatment provided for by the law.
The Constitutional Court made it clear that, in terms of external comparison, the particular severity of the custodial sentence is not manifestly unreasonable or disproportionate. It is not, either in relation to aggravated injuries, or when put in relation to the mutilation of female genital organs. These offences, although heavily affecting the integrity and even the dignity of the person, 'do not, however, affect that peculiar feature - the face - which the legislature intended to protect with special vigour, precisely because of the importance - we read in the judgment - that it assumes in the person's perception of identity'.
However, the legitimacy doubts of the referring judges are well-founded because of the rigidity of the tightening of the penalties implemented by the censured provision. The minimum of eight years' imprisonment is particularly harsh and, because it is grafted onto an autonomous title of offence, cannot even be modulated by balancing, as was the case for the defeat and deformation in the previous regime.
