Italian Court of Cassation (Corte di Cassazione italiana), Criminal Section I, No. 7904/2022, 4 March 2022
The Court of Cassation recently dealt with the issue of participation in public meetings and the display of symbols or manifestations typical of the fascist ideology.
In the present case, during a public ceremony held on 25 April 2016 at Cimitero Maggiore in Milan, commemorating the fallen of the Italian Social Republic, four members of the “Lealtà e Azione” Group carried out demonstrations distinctive of the former fascist party, such as the s.c. “call of the present” and the s.c. “roman salute”.
At the end of the first instance trial, in April 2019 the Milan Tribunal acquitted the defendants, by excluding the existence of the “concrete danger” of re-establishing the dissolved fascist party under art. 5 of the Scelba Law n. 645 of 1952, which forbids the public demonstrations common to the fascist regime.
The first instance decision was challenged before the Milan Court of Appeal, which, a few months later, held the accused persons’ to be responsible on the basis of the broader scope of the Mancino Law no. 205 of 1993, which refers to evocative manifestations of any association or group that pursues racial discrimination and, unlike the Scelba Law, concerns a crime of abstract danger.
The first criminal section of the Court of Cassation annulled the appeal judgment on the grounds that the fact does not exist.
The ruling at hand, by framing the case in the terms already expressed by the first instance tribunal, declared the “Lealtà e Azione” Group not to fall within the list of organizations, associations, movements and groups which pursue incitement to discrimination or violence for racial, ethnic, national or religious reasons, and are therefore prohibited under Law n. 654 of 1975 (ratifying and executing the New York Convention on the Elimination of All Forms of Racial Discrimination). This Law, in fact, does not apply to “historical” organizations but only to organizations, movements and groups existing and operating at the time when the criminally relevant conduct is carried out.
According to the Supreme Court, the conducts carried out in the present case are not suitable to determine a concrete danger to re-establish the dissolved fascist party, given that such acts, although typical of the fascist regime, took place within a context of “undeniably commemorative of the fallen of the ISR”.
(Comment by Marco Galimberti)