No discount for the theft committed in the lobby of an apartment building

No penalty discount for small burglaries in dwellings. The Constitutional Court, in its ruling 193 deposited yesterday, deemed unfounded the questions on the legitimacy of Article 624 bis of the Criminal Code, which provides for and punishes the offence of theft in household.

The issues had been raised by the Court of Florence in a case concerning a theft committed inside the atrium of a condominium building. The court, after referring to the established case law of the Court of Cassation, according to which the parts of the condominium constitute 'places of private abode', had argued that such an interpretation was contrary to the principles of reasonableness and offensiveness, observing that, in reality those spaces are frequented by a large number of people and that, therefore, no specific violation of domicile, understood as the spatial projection of a person's private life, can be identified in them, since they are intended to protect his privacy, security and safety.

Secondly, the Florentine judges had upheld the illegitimacy of the failure to provide for an attenuated hypothesis of the offence of burglary in a dwelling, with a reduction of punishment for the case in which the act was characterised by 'slight entity': in fact, the punishment actually applied was excessive, with serious consequences also for its re-educational purpose and with a disparity in treatment compared to the offences of robbery and extortion, in which such a reduction of punishment had been introduced.

The Court emphasises the particular dangerousness expressed by those who, in order to commit a burglary, break into a dwelling place, with the concrete possibility of finding themselves in front of those who live there, and exists even when the offence is committed in an immediate appurtenance. The Constitutional Court then recalls that the need for a particular severity is also justified taking into account that the common parts of the condominium building are constituted to serve and protect the private dwellings located in the condominium and are used, in their entirety, by the owners pro rata. "Even thecommon parts of the condominium - the Court points out -, in other words, present the fundamental features of the 'place of private abode', constituted by non-opening to the public and non-accessibility by third parties without the consent, even implicit, of the owners, who retain, in any event, the power to limit or prevent access to unwelcome persons".

Irrelevant then is the fact that, in relation to various profiles such as wiretapping with video recordings and the offence of unlawful interference with private life, the law does not recognise the common parts of the condominium the same degree of protection afforded to private dwellings. Moreover, the judgment notes that the failure to provide for attenuated hypotheses is not unreasonable, since no graduation of intensity is possible. The Court recalls its own previous decision (Judgment 117 of 2021), according to which, unlike in the case of the offences of robbery and extortion, where violence or threats can characterise a wide variety of conduct, 'the domicile, as a space of the person, is either violated or it is not, it being therefore inconceivable already on a logical level for a "slight" entry into another person's home'.