Italian Supreme Court of Cassation, Criminal Section V, No. 30538/2021, 4 August 2021
With judgment no. 30538 of August 4, 2021, the Italian Supreme Court of Cassation, Criminal Section V, returned to the issue of culturally motivated offences, in a case involving the sale of a Roma girl, aged under 16, for the so-called “bride price”.
The defendant was the girl’s father, who – without her consent – had promised her in marriage to a man, receiving, in return for such a “transfer”, a financial benefit from the “patriarch” of the family to which the groom belonged.
Condemned in the first instance of the trial for the crime of aggravated enslavement (Articles 600 and 602-ter, paras. 5 and 6 of the Italian Criminal Code), the man appealed to the Court of Assizes of Florence, which confirmed the sentence, recognising however the general mitigating circumstances due to “the particular subcultural condition” of the subject.
Both the defendant and the Public Prosecutor’s Office at the Court of Appeal of Florence resorted to the Court of Cassation against this decision; the Public Prosecutor complained, in particular, that the defendant’s subcultural condition did not result from the trial evidence, which showed rather his long and stable settlement in Italy.
On the other side, the four grounds of appeal put forward by the defendant’s lawyers were based above all on his different culture, which – on the one hand – led him to act in accordance with a fully-fledged “legal system” of the Romany community of reference (in which the transfer of a bride for a price corresponds to a consolidated legal institution) and – on the other hand – made him unaware of the “reification” process to which he was subjecting his daughter.
A further interesting ground of appeal takes into consideration (for the first time in the Italian Court of Cassation) a recently introduced crime (coercion or induction into marriage, under Article 558-bis of the Italian Criminal Code): it has been argued that the facts at issue had not been reclassified under this latter offence, as the more recent and more favourable one.
The final judgement, which rejected the defendant’s appeal, is interesting because, after defining “cultural offences” and accurately retracing the Supreme Court’s case-law on the subject, it reiterates that it is not possible to attribute any exculpatory value to cultural factors, rules and customs (in this case of the Roma culture), when the agent has harmed a legal asset of primary rank, belonging to the inalienable core of fundamental human rights, such as the status libertatis protected by art. 600 of the Italian Criminal Code.
And the only sphere in which such factors may find some relevance, in some cases, is that of the commensuration of the sanctioning treatment, as correctly identified by the second instance Judge (in application of this principle, the Court of Cassation rejected the relative complaint of the General Attorney).
Finally, with reference to Article 558-bis of the Italian Criminal Code, the Court of Cassation stated that the introduction, in the Criminal Code, of the offence of coercion or induction into marriage (by Law no. 69/2019) did not create a succession of incriminating criminal laws with respect to the already existing Article 600 of the Criminal Code, since the facts that are typified by the two provisions do not present elements of contact, being Article 558-bis addressed to a phenomenon – that of forced and/or early marriages – of new incrimination, and not previously covered by Article 600.
(Comment by di Giordana Pepè)