The main criminal laws in the Italian legal system

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The Italian Criminal Code that is currently in force (the so-called Rocco Code, named after the then Minister of Justice) dates back to 1930.

Like all the Codes of European countries approved since then, it was inspired by the Napoleonic Code of 1810 on the one hand, and by the 1870 Code of William, on the other hand. Although it was modelled on the major liberally inspired codes of the nineteenth century which were inspired to a greater extent by Liberalism, the fact that it was approved when Fascism was at its height (1942-1943) meant that, in compliance with the ideological dictates of an authoritarian state, the Code was originally very severe and gave a highly repressive role to the state powers.

Thus, the death sentence, which had been banned by the previous Criminal Code of 1889 (the so-called Zanardelli Code) and had been reintroduced only a few years earlier (1926), was reaffirmed and strengthened. The provision for general extenuating circumstances was eliminated, while numerous cases of absolute liability were included. There was a noticeable increase in the sanctions applied for crimes against property. These, furthermore, tended to apply more strict penal sanctions to those forms of behaviour (in primis violence) that are usually linked to the lower social classes, while applying lighter sanctions to those offences against property that are usually perpetrated by the middle class (such as fraud). Numerous crimes related to attacks against the political regime in power at the time were envisaged, as well as crimes of ideological dissent against the regime.

As soon as the Fascist regime was overthrown, the first profound changes to the Criminal Code were made, reflecting the new institutional order of the Italian State.

In 1944, Legislative Decree No. 222 abolished the death penalty, with the exception of the cases provided for by the war laws. Legislative Decree No. 288 of 1944 reintroduced general extenuating circumstances as well as legal excuses in cases of legitimate reactions to arbitrary acts by public officials.

In 1958, Law No. 127 modified Article 57 of the Penal Code, which was one of the provisions that clearly accepted absolute liability as a criterion for indictment. Thus, for example, this provision considered the director or deputy director of a journal responsible for offences committed by the press. By introducing the phrase “as proof of guilt”, punibility became dependent on proof of guilt.

Law 220 of 1974 introduced the possibility to pass judgement after having taken into consideration both the mitigating and aggravating circumstances; the application of one single sentence with an added penalty in cases of concurrence of offences and the expanded use of conditional sentences. It also made it optional rather than obligatory to consider recidivism as an aggravating factor.

Law 317 of 1967, Law 706 of 1975 and Law 689 of 1981 paved the way to a decriminalisation process which was finalised at the end of 1999 (acts of June 25, 1999 and December 3, 1999). One of the most significant legal innovations deserves mention: the Constitutional Court’s decision No. 364 of 1988 which inferred that absolute liability is incompatible with the principles of the Constitution. Following this decision, the numerous forms of indictment based on mere material cause envisaged by the Rocco Code became inconsistent with the Constitution. It was probably in order to deal with this problem raised by the decision of the Constitutional Court that Law No. 19 was introduced in 1990. This modified the aggravating circumstances and excluded the possibility of indictment based on mere material connection. It also stated that culpability was a prerequisite for punibility.

Over the years, and especially in recent years, other important changes have been made to the Criminal Code. These concern the special rather than the general part of the Code. The most important changes are related to mafia-type associations for which a specific incriminating law has been introduced (Law 646 of 1982), crimes against the public administration (modified by Law 86 of 1990), the introduction of crimes related to money laundering and laundering of the proceeds of crime (by Law 328 of 1993), the modifications of usury crimes (Law 108 of 1996) and that of abuse of official duties (Law 234 of 1997), as well as the profound change introduced on the issue of sexual violence (Law 66 of 1996).

The Italian Criminal Code has been translated and published in all the major European languages – English, French, German and Spanish.

Alongside the incriminating provisions contained in the Criminal Code, Italy has also always had special laws. The complementary legislation has always been an important source of criminalisations. The use of this legislation has increased over the years, so much so as to induce some legal scholars to affirm that the Rocco Code is no longer the main source of the Italian criminal justice system, but a secondary and supplementary one.

Among the numerous special criminal laws, it is necessary to mention at least those related to secret associations (Law 17 of 1982), the credit market (Legislative Decree 58 of 1998), the banking market (Legislative Decree 385 of 1993), building, urbanisation and the environment (Law 1150 of 1942, Law 1086 of 1971, Law 62 of 1974, Law 10 of 1977, Law 457 of 1978, Law 47 of 1985, Law 431 of 1985, Legislative Decree 22 of 1997), bankruptcy (Royal Decree 267 of 1942), paedophilia (Law 75 of 1958), prostitution (Law 75 of 1958), migration (Legislative Decree 286 of 1998), drugs (Presidential Decree No. 309 of 1990), and taxation (Law 516 of 1982).

Within such a deluge of complementary provisions, recourse is very frequently made - at least with respect to financial and tax issues - to a form of protection based on non-compliance with the often technically very complex provisions of the civil code or with orders and authorisation issued by the public administration, and on the disturbance this causes to the control functions of public entities. In other words and in short, complementary legislation often increases the number of neutral incriminating cases that are thoroughly regulated by the law, but which are not given great criminal importance by society. Such provisions, in fact, pose considerable problems with respect to the proportionality of the sentence with guilt. It is not by chance that our prevailing doctrine has proposed converting at least the less serious cases into administrative offences.