The homeless woman is not in breach of the Daspo if the station is the only place where she receives support

The state of necessity must be assessed for the homeless woman, to whom the urban Daspo, who breaks the law to stay in the station, if that is the only place where she can receive assistance. The Court of Cassation has quashed the verdict of the Court of Appeal, which had dismissed the woman’s defence appeal as inadmissible. Her defence lawyer, in fact, brought her client’s history of marginalisation to the attention of the judges of the Court of Cassation, asking them to also consider non-punishment due to the particularly minor nature of the offence, given that the station was a “refuge” where the woman, who was homeless, was welcomed by the local council’s social workers.

The relief, provided for under Article 131-bis of the Criminal Code – which, whilst acknowledging the offence, excludes the imposition of a penalty – had been refused on account of the applicant’s criminal record, almost all of which related to petty thefts, again committed out of necessity. This was a situation of particular vulnerability, without any danger to society sufficient to justify the refusal of the requested benefit, despite the fact that the applicant had been granted general mitigating circumstances.

The Supreme Court has also addressed the issue of urban Daspo, introduced by the Minniti decree Orlando, clarified that the route of criminal punishment cannot be pursued, and that a fine is also ruled out, if the breach of the ban is the result of a state of destitution and the offender has not found shelter in a night shelter. The President of the Republic, Sergio Mattarella, had himself intervened in the case of a homeless man in Verona. In 2019, President Mattarella, acting on the advice of the Council of State, annulled a fine and a Daspo imposed on a homeless person who was begging without causing a nuisance to passers-by. This decision was unsuccessfully challenged by the local council. The judges at Palazzo Spada emphasised the importance of collaboration, including inter-institutional cooperation, ‘aimed at fostering social advancement and eliminating the factors leading to marginalisation and social exclusion, rather than punishing them when they do not pose a threat to public safety’.