Italy / Court of Cassation / Decision no. 19265
Italy / Court of Cassation / Decision no. 19265View full Case
Monday, May 21, 2012
Crime type(s) concerned/related
Incitement to violence or hatred
Related hate bias motivation
Race Ethnic origin
Third country nationals
National Higher Court
Italian Court of Cassation (Corte di Cassazione)
Key facts of the case
The Court of Cassation had to assess the legitimacy of the decision of the Court of Appeals of Trieste which had condemned the complainant for false report and menaces aggravated by reasons of ethnic hatred. The accused person sent threatening letters to a public institute – whose name is omitted in the decision – containing a white powder – similar to anthrax – and several degrading and racist phrases and menaces. The complainant considered the decision of the Court of Appeals not to be in comofrmity with the law since the racist conduct did not target an individual but an institution and, consequently, could not be considered as a racist menace or conduct.
According to the Court of Cassation the complaint cannot be accepted and the decision of the Court of Appeal of Trieste is to be considered legitimate since the complainant's conduct even though not aimed at damaging a specific person but an institution can in any case be ruled by the anti-discrimination legislation since it was aimed at causing alarm and disseminating racial hatred.
Is the case related to the application of the Framework Decision on Racism and Xenophobia, the Racial Equality Directive?
Key issues (concepts, interpretations) clarified by the case
This decision is relevant because the Court of Cassation contributes to the correct interpretation of the meaning and field of application of the anti-discrimination and racism legislation. More specifically, the Court stressed that to apply the aggravating factor based on the attempt to discriminate or disseminate racial, ethnic, religious and national hatred, as envisaged by art. 3 of the Law No. 205 of 25 June 1993, is not necessary that the criminal conduct is potentially able to publicly disseminate its hatred and discriminatory content- It can be applied also to those conducts which are perpetrated between private subjects and not perceived by others.
Results (sanctions, outcome) and key consequences or implications of the case
The decision of the Court of Appeal of Trieste is to be considered legitimate and the complainant's conviction is valid.
Key quotation in original language and translated into English with reference details
Point 3 of the decision: "per la configurazione dell’aggravante della finalità di discriminazione o di odio etnico, nazionale, razziale o religioso [...], non sia necessario che la condotta di incriminata sia destinata o, quantomeno, potenzialmente idonea a rendere percepibile all’esterno ed a suscitare il riprovevole sentimento o, comunque, il pericolo di comportamenti discriminatori o di atti emulatori, giacché ciò varrebbe ad escludere la aggravante in questione in tutti i casi in cui l’azione lesiva si svolgono in assenza di terze persone"
"in order for the aggravating factor based on the attempt to discriminate or disseminate racial, ethnic, religious and national hatred [...] to be applicable, it is not necessary that the criminal conduct is destined, or at least potentially able to propagandise or raise the reprehensible feeling or, in any case, discriminatory actions or emulative behaviours, since it would exclude the application of the aggravating factor to all those cases when the damaging actions are perpetrated in the absence of third external subjects”
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