IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of: President:

Augusto Antonio BARBERA

Judges: Franco MODUGNO, Giulio PROSPERETTI, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D'ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has rendered the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 628, second paragraph, of the Penal Code, brought before the Ordinary Court of Cuneo, sitting as a collegiate bench, in the proceedings against B. D. and B. A., following the order of 20 September 2023, entered at no. 148 of the register of orders 2023 and published in the *Official Gazette* of the Republic no. 46, first special series, of the year 2023.

Heard in the deliberation chamber on 16 April 2024, the Reporting Judge Stefano Petitti;

Deliberated in the deliberation chamber on 16 April 2024.

Facts

1.— By order of 20 September 2023, entered at no. 148 of the register of orders 2023, the Ordinary Court of Cuneo, sitting as a collegiate bench, raised a question of constitutional legitimacy of Article 628, second paragraph, of the Penal Code, for violation of Articles 3 and 27, first and third paragraphs, of the Constitution, "insofar as it does not provide for a reduction when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance".

The referring court explains that it must rule on the charge of improper robbery, aggravated by the fact that it was committed by multiple persons acting in concert, brought against B. D. and B. A. for having, after removing some common goods (three baguettes, a can of tuna and a toothbrush) from the shelves of a supermarket, secured possession of them and impunity through threats and a push against the security guard and the manager of the store, who intervened to recover the goods, and finally being found near the store while consuming the bread.

2.— Regarding the relevance of the question, the Court of Cuneo observes that, for the crime charged, the minimum statutory custodial sentence applicable in this instance would be disproportionate to an act of "low offensiveness, both in terms of the value of the goods stolen (€6.19), and in terms of the method of execution of the robbery (consisting of two threatening phrases and a push)".

The disproportionality of the minimum statutory sentence could not be remedied by the application of generic mitigating circumstances and the mitigating circumstance of the particularly slight nature of the patrimonial damage, circumstances whose purpose is not to correct the excessiveness of the abstract measure of punishment.

3.— Regarding the non-manifest unfoundedness of the question, the referring court considers that the alleged lack of proportionality renders the penal treatment unreasonable, in violation of Article 3 of the Constitution, while at the same time preventing it from adhering to the concrete gravity of the act, with a further violation of the principle of personality of criminal responsibility and the rehabilitative function of punishment, pursuant to the first and third paragraphs of Article 27 of the Constitution.

The referring court argues that a mitigating circumstance for minor significance is contemplated with regard to crimes far more serious than improper robbery, such as sexual violence, kidnapping for extortion and kidnapping for coercion.

4.— The Court of Cuneo therefore requests an additive ruling from this Court, introducing a reduction for cases of minor significance also for improper robbery, similarly to what is provided for the crime of extortion by Judgment No. 120 of 2023.

In the opinion of the referring court, the differential element between robbery and extortion, concerning the determinative effect of violence or threat, would not prevent the extension of the ruling, since "[b]oth the crime of robbery and extortion are crimes against property, punishable with the same custodial sentence".

Furthermore, also for robbery, "as for the crime of extortion, situations of minimal offensiveness can occur, both due to the occasional nature of the criminal initiative, and to the slightness of the prejudice caused to the victim and finally to the modesty of the benefit perceived by the perpetrator of the act".

5.— The President of the Council of Ministers did not intervene in the proceedings, nor did the defendants in the referring proceedings.

Points of Law

1.— With the order indicated above, the Court of Cuneo, sitting as a collegiate bench, raised a question of constitutional legitimacy of Article 628, second paragraph, of the Penal Code, for violation of Articles 3 and 27, first and third paragraphs, of the Constitution, "insofar as it does not provide for a reduction when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance".

The main proceedings concern a charge of improper robbery, aggravated by the plurality of perpetrators, relating to food items and a toothbrush, with a total value of a few euros, taken from the shelves of a supermarket; a crime which is alleged to have been committed with threats and a push against the store staff, through which the two defendants allegedly obtained possession of the stolen goods and impunity.

2.— The referring court considers that the minimum statutory custodial sentence for improper robbery is disproportionate to an act of such modest concrete offensiveness, which would constitute a violation of the principle of reasonableness enshrined in Article 3 of the Constitution.

The consequent inability to modulate and individualize the penalty in relation to the actual gravity of the crime would also violate the principle of personality of criminal responsibility, pursuant to the first paragraph of Article 27 of the Constitution.

Finally, the excessiveness of the penalty would render it unjust in the perception of the offender, and therefore unsuitable for the rehabilitative function assigned by the third paragraph of the same Article 27.

3.— In the opinion of the referring court, an additive ruling would therefore be necessary, introducing a reduction for cases of minor significance for improper robbery, in analogy with what was provided for the crime of extortion by Judgment No. 120 of 2023 of this Court.

The extension of the precedent would not be prevented by the distinctive element between the two crimes, concerning the different effectiveness of violence or threat, given that both are subject to the same minimum statutory custodial sentence and both can exhibit minimal offensiveness in concrete terms.

4.— The referring court, by alleging a violation of Articles 3 and 27, first and third paragraphs, of the Constitution, submits to this Court a question which concerns, in essence, the disproportionality of the penal treatment for the crime of improper robbery, due to the lack of provision for a mitigating circumstance in the event that the contested act is of minor significance.

It is therefore useful to recall that, as this Court has illustrated in Judgment No. 112 of 2019 (point 8.1. of the *Points of Law*), the review of constitutional legitimacy on the proportionality of punishment, initially carried out essentially in a triadic way in the light of the principle of equality pursuant to Article 3 of the Constitution, has subsequently emphasized the parameter of Article 27, third paragraph, of the Constitution on the rehabilitative purpose of punishment. This has resulted in the extension of the review itself "to cases where the penalty imposed by the legislature appears manifestly disproportionate not so much in relation to the penalties provided for other types of crime, but rather in relation – directly – to the gravity of the conduct encompassed by the abstract offence". The rehabilitative purpose of the sanction has also been coordinated with the principle of personality of criminal responsibility, enshrined in the first paragraph of the same Article 27, or with the principle of individualization of the penalty, which "requires that – in the transition from the abstract imposition carried out by the legislature to its concrete imposition by the judge – the penalty should be proportionate to the concrete gravity, both objective and subjective, of the individual crime".

Therefore, the question raised by the Court of Cuneo requires that the penal treatment of improper robbery be subjected to the threefold test of relational proportionality (in relation to any *tertia comparationis*), objective proportionality (in relation to the type of conduct falling within the abstract offence) and the necessary individualization (in relation to the objective and subjective gravity of the specific fact).

5.— On the foregoing, the question is well-founded with respect to all the parameters invoked.

5.1.— The second paragraph of Article 628 of the Penal Code, having described the constitutive elements of improper robbery (whoever "uses violence or threat immediately after the theft, to secure for himself or others the possession of the stolen thing, or to procure for himself or others impunity"), establishes for it the same penalty provided for in the first paragraph for proper robbery (whoever, "to procure for himself or others an unjust profit, by means of violence against the person or threat, takes possession of another's movable property, taking it from whoever holds it").

This penalty has undergone a gradual increase over time, which has mainly affected the minimum custodial sentence: originally set at three years, this minimum was increased to four years by Article 1, paragraph 8, letter a), of Law 23 June 2017, no. 103 (Amendments to the Penal Code, the Code of Criminal Procedure and the prison system), and further increased to five years by Article 6, paragraph 1, letter a), of Law 26 April 2019, no. 36 (Amendments to the Penal Code and other provisions on self-defense).

The increase also concerned the minimum statutory sentence for the aggravated offence which is the subject of the referring proceedings, namely robbery committed "by more than one person acting in concert": four years of imprisonment for the original text of Article 628, third paragraph, no. 1), of the Penal Code, four years and six months as a result of Article 3 of Law 14 October 1974, no. 497 (New measures against crime), then five years pursuant to Article 1, paragraph 8, letter b), of Law no. 103 of 2017, and finally six years pursuant to Article 6, paragraph 1, letter b), of Law no. 36 of 2019.

5.2.— The increase in the penal treatment now illustrated for robbery is analogous to that which has affected extortion, a crime described in Article 629, first paragraph, of the Penal Code as the conduct of whoever, "by means of violence or threat, compelling someone to do or omit something, procures for himself or others an unjust profit to the detriment of another".

Also for extortion, the minimum statutory sentence of three years of imprisonment, originally established for the simple form of the crime, has been increased to five years (Article 8, paragraph 1, of Legislative Decree 31 December 1991, no. 419, concerning "Establishment of the fund to support victims of extortionate demands", converted, with amendments, into Law 18 February 1992, no. 172).

For extortion, as for robbery, the considerable increase in the minimum statutory sentence – to a level that makes the benefit of conditional suspension of the sentence substantially inaccessible – has been implemented without introducing a "safety valve", which allows the judge to moderate the penalty when the concrete offensiveness of the crime does not justify such a severe punishment.

5.3.— With Judgment No. 120 of 2023, this Court declared the unconstitutionality of Article 629 of the Penal Code, "insofar as it does not provide that the penalty imposed by it is reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance".

Following precedents relating to kidnapping for extortion (Judgment No. 68 of 2012) and so-called military sabotage (Judgment No. 244 of 2022), Judgment No. 120 of 2023 observed that the failure to provide a "safety valve" in the face of a particularly harsh minimum statutory sentence implies the risk of imposing a penalty that is not proportionate to the actual gravity of the extortionate act, where the act itself is free from the aspects of social alarm that led the legislature to establish that severe minimum.

This was found on the basis of the observation that the crime of extortion – given the multifaceted nature of the constitutive elements "violence or threat", "profit", "damage" – can also be committed through occasional conduct, with minimal personal impact, aimed at achieving negligible profit and causing minimal prejudice to the victim.

5.4.— The *ratio decidendi* of Judgment No. 120 of 2023 also applies to robbery, as suggested by the referring court.

In fact, the typical description made by Article 628 of the Penal Code highlights an objective breadth and a variety of material conduct no less extensive than that of the crime of extortion, since, also in robbery, violence or threat may be of modest scope and the benefit pursued, or the damage caused, of minimal value.

The case to be judged by the referring court is emblematic, in which the theft related to a few consumer goods, at a price of just a few euros, and the violence or threat was limited to barely intimidating phrases and a push to get away. In such cases, for robbery as for extortion, the minimum statutory sentence of considerable severity, introduced to curb serious criminal phenomena that seriously harm the person and property, exceeds the purpose, resulting in the imposition of an unreasonable, disproportionate and therefore unsuitable penalty for rehabilitation.

5.5.— According to consistent case law, robbery is distinguished from extortion because in the former the victim suffers "direct and inescapable" violence or threat, while in the latter there is no such "total annulment of the passive subject's ability to determine himself differently from the will of the agent" (*ex plurimis*, Court of Cassation, second penal section, judgments 15 February-17 May 2023, no. 21078, and 15 September-28 October 2021, no. 38830).

Theoretically, this distinction could indicate a greater gravity of robbery, as absolute coercion (*vis absoluta*), compared to extortion, as relative coercion (*vis compulsiva*), which might appear to prevent the extension of Judgment No. 120 of 2023.

However, it is the legislature itself that, by equating the minimum statutory sentences, demonstrates that it considers the two crimes homogeneous in terms of abstract offensiveness, on the implicit assumption that moral freedom must be protected no less than physical freedom.

5.6.— With Judgment No. 141 of 2023, this Court, ruling on a specific case of uncertain subsumption between the paradigms of robbery or extortion, conducted a unitary discussion for the two crimes, on the issue of balancing circumstances, with regard to the common high minimum statutory custodial sentence and the equal breadth of the legal scheme.

The breadth of the typical description of the crimes in question, it was observed, "means that they can also encompass conduct of modest disvalue: not only with reference to the extent of the patrimonial damage caused to the victim, which may even amount (as in the case before the referring court) to a few euros"; "but also with reference to the manner of the conduct, which may be limited to minimal forms of violence" (such as, in this case, a slight push), or "in the mere verbal presentation of an unjust harm, without the use of weapons or other means of coercion, which, however, already constitutes the alternative form of conduct constituted by the threat".

And again, this Court stated in the aforementioned judgment, "[e]ven with respect to such facts, the current legislation imposes a minimum penalty of five years' imprisonment: a penalty which would, however, be manifestly disproportionate to the objective gravity of the facts themselves – also in relation to the penalties provided for the generality of crimes against the person – if the legal system did not provide mechanisms to attenuate the penal response in less serious cases".

The unitary consideration of the crimes of robbery and extortion must also be maintained in the definition of the present question, for the purposes of the extension of Judgment No. 120 of 2023, since the addition of the mitigating circumstance of the minor significance of the fact also concerns that high common minimum statutory sentence, to whose considerable amount a, constitutionally necessary, "safety valve" is applied.

5.7.— Therefore, at the level of comparison between the penal treatment provided for improper robbery and that established for extortion, the violation of Article 3 of the Constitution emerges, as there are no specific reasons to justify the exclusion of the mitigating circumstance of minor significance of the fact for the crime under Article 628, second paragraph, of the Penal Code, and indeed there are the aforementioned indications that the extension of such a reduction is also required for this crime.

5.8.— But the need for the mitigating circumstance in question – to an extent not exceeding one third, as required by the general rule of Article 65, first paragraph, no. 3), of the Penal Code – is also constitutionally founded on the principles of individualization of punishment and its rehabilitative purpose.

In the case law of this Court, it has indeed been clarified, on the one hand, that a treatment manifestly disproportionate to the objective and subjective gravity of the act, and in any case unable to adapt to its concrete disvalue, prejudices the principle of individualization of punishment (Judgment No. 244 of 2022); ""individualization" of the penalty, so as to take account of the actual extent and the specific needs of individual cases, is a natural implementation and development of constitutional principles” so as to render "as far as possible "personal" criminal responsibility, in the perspective indicated by Article 27, first paragraph" (Judgment No. 7 of 2022). On the other hand, that the precept of Article 27, third paragraph, of the Constitution applies as much to the legislature as to the judges of the trial, as well as to those of execution and supervision, and also to the prison authorities themselves: the principle of the rehabilitative purpose of punishment has long been part of European legal culture, particularly for its connection with the "principle of proportionality" between the quality and quantity of the sanction, on the one hand, and the offence, on the other (among many, Judgments Nos. 179 of 2017 and No. 313 of 1990).

Now, in the presence of an abstract offence characterized, as mentioned, by intrinsic variability given the multifaceted nature of the constitutive elements "violence or threat", "thing stolen", "possession", "impunity", and yet subject to a minimum statutory sentence of considerable size, the fact that there is no possibility for the judge to qualify the criminal act as being of minor significance in relation to the nature, type, means, methods or circumstances of the action, or to the particular slightness of the damage or danger, determines the violation, at the same time, of the first and third paragraphs of Article 27 of the Constitution.

5.9.— For all the foregoing, the unconstitutionality of Article 628, second paragraph, of the Penal Code, must be declared, insofar as it does not provide that the penalty imposed by it is reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance.

It is worth reiterating what was already observed in Judgment No. 120 of 2023 with regard to extortion, namely that the indications of the mitigating circumstance of minor significance of the act – the extemporaneous nature of the conduct, the scarcity of the personal offence to the victim, the smallness of the value stolen, the absence of organizational aspects – guarantee that the reduction of the penalty "is reserved for cases of truly minimal harmfulness, for conduct which still affects the freedom of self-determination of the person" (point 7.9. of the *Points of Law*).

6.— The question raised by the Court of Cuneo concerns the penal treatment of improper robbery and criticizes the second paragraph of Article 628 of the Penal Code, which governs this *species* of robbery.

However, this Court has on several occasions emphasized the structural homogeneity of the various forms of robbery, which are all contemporaneous aggressions against the person and property, bound together in a complex crime: proper robbery and improper robbery (Judgment No. 190 of 2020, Order No. 111 of 2021); improper robbery with intent to possess and improper robbery with intent to escape impunity (Judgment No. 260 of 2022).

Given that proper robbery shares with improper robbery – and, transitively, with extortion – both the high minimum statutory custodial sentence (five years' imprisonment) and the ability to exhibit diversified offensiveness (in relation to the constitutive elements of violence or threat and profit), the constitutional necessity of a "safety valve" is also evident for it, to guarantee the reasonableness, proportionality and rehabilitative capacity of the sanction.

Therefore, the unconstitutionality of Article 628, first paragraph, of the Penal Code must be declared, consequentially, pursuant to Article 27 of Law 11 March 1953, no. 87 (Rules on the constitution and functioning of the Constitutional Court), insofar as it does not provide that the penalty imposed by it is reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance.

For These Reasons

THE CONSTITUTIONAL COURT

1) declares the unconstitutionality of Article 628, second paragraph, of the Penal Code, insofar as it does not provide that the penalty imposed by it is reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance;

2) declares, consequentially, pursuant to Article 27 of Law 11 March 1953, no. 87 (Rules on the constitution and functioning of the Constitutional Court), the unconstitutionality of Article 628, first paragraph, of the Penal Code, insofar as it does not provide that the penalty imposed by it is reduced by no more than one third when, due to the nature, type, means, methods or circumstances of the action, or due to the particular slightness of the damage or danger, the act is deemed to be of minor significance.

So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 16 April 2024.

Signed:

Augusto Antonio BARBERA, President

Stefano PETITTI, Reporting Judge

Valeria EMMA, Registrar

Filed with the Registry on 13 May 2024