Tenuousness of the act resists recidivism

In the crime of robbery the slightness of the act must be able to prevail over the aggravating circumstance of recidivism. This was affirmed by the Constitutional Court in Judgment No. 117 filed on Monday 21 July 2025.

The issue had been raised by the judges of the courts of Sassari and Cagliari and by the Court of Cassation, all of whom agreed that the prohibition of prevalence violates Article 3(1) and Article 27(3) of the Constitution, because of the disproportion of the penalty to the seriousness of the offence and its unsuitability for the release of the convicted person.

Article 69(4) of the Criminal Code has already been the subject in the past of numerous pronouncements of partial constitutional illegitimacy, which have affected the prohibition of the prevalence of various mitigating circumstances over repeated recidivism. The alteration of the constitutional balance has been identified from time to time in relation to extenuating circumstances that can essentially be traced to three strands: circumstances expressive of a lesser disvalue of the fact from the point of view of its offensive dimension, circumstances concerning the person of the offender and circumstances relating to the collaboration of the offender after the commission of the crime.

Even with regard to this attenuating circumstance, the Court points out, the rule censured unreasonably frustrates the "safety valve" function that is at the root of the addition made by this Court in the terms referred to above. It also prevents the court from applying a different penalty for different situations in terms of the offensiveness of the conduct, leading to a breach also in terms of the principle of equality.

The judgement emphasises the wide discretion of the legislator in determining criminal policy choices, without, however, these being able to border on arbitrariness.