Stalking prosecutable on complaint even in case of connection

The stalking prosecution regime has been overturned: if the related crime becomes prosecutable on complaint, even persecutory acts become prosecutable on complaint again. This was affirmed by the Constitutional Court in ruling no. 123 filed yesterday, rulingunlawful a provision placed in the corrective to the Cartabia reform of the Code of Criminal Procedure.

The judgement had to deal with a tangle of rules that affects the regime of the prosecution of crimes of sexual violence, persecutory acts and unlawful dissemination of sexually explicit images or videos, committed before the reform came into force, if connected with a crime of damage committed to things exposed to public faith.

The three offences in question are prosecutable onsuit by the offended person, except in a number of cases. One of these is when the offence is connected with another offence for which one must proceed ex officio. In this case, the three crimes in question also become prosecutable ex officio. Uncertain, however, are the rules applicable if the related crime was ex officio prosecutable at the time of the commission of the acts, but then became prosecutable on complaint as a result of a subsequent regulatory amendment.

In the case that came before the Constitutional Court, the tribunal of Verona had to judge the criminal liability of a defendant who was accused of repeatedly threatening and insulting the offended person, and also of damaging his car by breaking its windscreen wipers. The offended person had later withdrawn the complaint filed against the defendant. The facts, dating back to late 2022 and early 2023, were, however, ex officio prosecutable, because the persecutory acts were related todamage to property exposed to public knowledge, which was ex officio prosecutable at the time. The judge was thus in the position of not being able to acquit the defendant, despite the withdrawal of the complaint.

The Court is thus confronted with the defendant's right to the application of themost favourable criminal law, a principle that is not absolute but whose limitation must be reasonable. Reasonableness, however, which the Constitutional Court, in yesterday's judgment, finds itself excluding. In fact, "when the related crime itself becomes prosecutable on complaint, the reasons that could militate in favour of perpetuating the prosecutability ex officio for the crime of persecutory acts are not at all clear".