Menu

The crime of damage

0 Comment


Until not long ago, Article 635 of the Italian Criminal Code punished the CD in general as a criminal offense. damage or rather that behavior that results in destroying, deteriorating, dispersing or making unusable – totally or partially – a movable or immovable property of others or of public utility. More generally, it can be said that they integrated the conduct of damaging all the materially or functionally offensive acts of objects that were not the exclusive property of the agent.

decriminalization

decriminalization

With the legislative decree n. 7/2016, however, our legislator has put in place a massive work of decriminalization which has involved various types of crime, which are no longer criminal offenses but are now punished with simple civil sanctions. These include damage, or rather simple damage.

The aggravated damage, on the other hand, also following the recent reform remained in the area of ​​the criminally relevant.

Simple damage

Simple damage

Therefore, today, the “simple” act of damaging objects that are not the exclusive property of the agent no longer has criminal relevance, but represents a hypothesis of administrative offense.

It is punished with a civil penalty of between 100 euros and 8 thousand euros.

To give some examples, we refer to cases where the object of damage is personal property (such as a mobile phone) or vehicles not parked on the public road or in public parking lots.

We refer, still and merely by way of example, to the luggage and plants of the neighbor.

Aggravated damage

Aggravated damage

As said, however, the hypotheses of aggravated damage remain hypotheses of crime and, therefore, are still criminally relevant. We refer, in particular, to the cases in which the action is committed:

  • with violence or threat to the person;
  • on the occasion of events taking place in a public place or open to the public or of a strike or interruption of a public service or public necessity;
  • on public buildings or buildings intended for public use or worship or on things of historical-artistic interest or on buildings, both under construction and under renovation, or on other things indicated in number 7) of article 625 of the criminal code (existing in offices or public establishments, things subject to seizure or distraint, things exposed to public faith, things intended for public service or public utility, defense or reverence);
  • on works intended for irrigation ;
  • above vine plants, trees, fruiting shrubs, woods, forests, forests, forest nurseries ;
  • on sports equipment and facilities in order to prevent or interrupt the performance of sporting events.

Penalties and procedural aspects

Penalties and procedural aspects

The hypotheses of damage that remain a crime are punished with imprisonment from 6 months to 3 years.

Furthermore, the conditional suspension of the sentence is subject to two alternative conditions:

  • elimination of the harmful or dangerous consequences of the crime
  • provision of unpaid work in favor of the community, if the person convicted does not object, for a fixed period of time not exceeding the duration of the suspended sentence.

Who can commit the crime of damage?

Who can commit the crime of damage?

The damage remains a so-called “common” crime, in the sense that anyone can become an active subject in the relevant case – except, of course, the one who is the sole owner of the good.

Psychological element of the crime

Psychological element of the crime

From the subjective point of view, the general fraud is the psychic element required for the integration of the case in point: it is necessary, that is, that the injurer had, at the time of the commission of the fact, both the conscience and the will to attack the good, and the awareness that this good belonged to others. While the specific purpose of doing harm is not relevant for the purpose of qualifying the fraud (see, on the subject, Criminal Cassation, section II, sentence 13 April 2007, no. 15102).

The Legislator has decided not to punish the conduct harmful to property, carried out as a fault.

Jurisprudence on the crime of damage

Jurisprudence on the crime of damage

Criminal Cassation Section II sentence of 10/23/2014 n. 47705

In terms of damage, it integrates the crime referred to in art. 635 cp the forcing of a lock, as it causes to the thing an irreversible damage – although repairable by man – and a functional and structural modification, not irrelevant even under the economic profile.

Criminal Cassation Section V judgment of 21/05/2014 n. 38574

The crime of damage referred to in art. 635 of the Criminal Code differs from that of defacement or contamination envisaged by art. 639 of the Criminal Code, since the former produces a modification of the thing of others which appreciably decreases its value or even partially prevents its use, thus giving rise to the need for a restoration intervention of the essence and functionality of the thing itself while the second it produces only a temporary and superficial alteration of the “res aliena”, whose original aspect, whatever the expense to be faced, is however easily reintegrated. (Case of alteration of the state of the places in which the SC has deemed immune from censorship the decision of the trial judge who had declared the responsibility of the accused for the crime of damage).

Criminal Cassation Section II sentence of 09/22/2010 n. 37889

The hypothesis of aggravated damage ex art. 635, paragraph 2 no. 3 of the criminal code, in relation to the hypothesis referred to in art. 625, paragraph 1 no. 7 of the Criminal Code (committed on things intended for public use exposed to the public faith), breaking the glass door of a bar in the presence of its owner, as this aggravating circumstance cannot be configured if the thing is kept in a direct and continuous manner by the owner of the well. (The Court also noted that, in this regard, the behavior of the agent who, following a sudden move, also succeeded in damaging the guarded thing, since it must be presumed, unless proved otherwise, that the owner, exercising the custody in a direct and continuous way, both able, using all the precautions and diligence of the case, to prevent the event).

Criminal Cassation Section II sentence of 10/23/2014 n. 47705

In terms of damage, it integrates the crime referred to in art. 635 cp the forcing of a lock, as it causes to the thing an irreversible damage – although repairable by man – and a functional and structural modification, not irrelevant even under the economic profile.

Criminal Cassation Section V judgment of 21/05/2014 n. 38574

The crime of damage referred to in art. 635 of the Criminal Code differs from that of defacement or contamination envisaged by art. 639 of the Criminal Code, since the former produces a modification of the thing of others which appreciably decreases its value or even partially prevents its use, thus giving rise to the need for a restoration intervention of the essence and functionality of the thing itself while the second it produces only a temporary and superficial alteration of the “res aliena”, whose original aspect, whatever the expense to be faced, is however easily reintegrated. (Case of alteration of the state of the places in which the SC has deemed immune from censorship the decision of the trial judge who had declared the responsibility of the accused for the crime of damage).

Criminal Cassation Section II sentence of 09/22/2010 n. 37889

The hypothesis of aggravated damage ex art. 635, paragraph 2 no. 3 of the criminal code, in relation to the hypothesis referred to in art. 625, paragraph 1 no. 7 of the Criminal Code (committed on things intended for public use exposed to the public faith), breaking the glass door of a bar in the presence of its owner, as this aggravating circumstance cannot be configured if the thing is kept in a direct and continuous manner by the owner of the well. (The Court also noted that, in this regard, the behavior of the agent who, following a sudden move, also succeeded in damaging the guarded thing, since it must be presumed, unless proved otherwise, that the owner, exercising the custody in a direct and continuous way, both able, using all the precautions and diligence of the case, to prevent the event).