The Legislative Decrees n. 7/2016 abrogated the following crimes: forgery of written document (art. 485 c.p.), forgery of carte blanche (art. 486 c.p.), obloquy (art. 594 c.p.), subtraction of common things (art. 627 cp), appropriation of lost things, treasure or things acquired accidentally or for unforeseeable circumstances (art. 647 cp) and, under certain conditions, even the malicious damage of someone’s else property (art. 635 cp) .
These conducts lose - at least formally - the name of crime to be subjected to an alternative penalty system: after all, the same acts, if deliberate, lead to refunds and compensation for damage according to civil laws and also to the payment of the given civil fine.
In fact, a civil penalty will be applied from a minimum of € 100,00 to a maximum of € 8,000.00 in respect of:
a) those who offend the honor or dignity of a person present, or by telegraph, telephone, computer or telematics, or writings or drawings, direct to the victim;
b) the co-owner, partner or co-heir who, for his own or others a profit, takes possession of the common thing, subtracting it from its holder, unless the act is committed on fungible things and the value of them does not exceed the share due to its author;
c) who destroys, disperses, deteriorates or makes, in whole or in part, unusable movable or unmovable assets of others, outside of the cases referred to in Articles 635, 635-bis, 635-ter, 635-quater and 635-d of the criminal code;
d) who, finding money or other lost things, retains them for himself, without following the prescriptions of civil law on the purchase of property of things found;
e) those who, having found a treasure, retain it for themselves, in whole or in part, the share due to the owner of land;
f) who takes possession of things that has come into his possession for mistake of others or for unforeseeable circumstances.
On the other hand, it will be applied the civil penalty from a minimum of € 200,00 to a maximum of € 12,000.00 for the facts of forgery equivalent to the corresponding abrogated crimes and also for the insults, if in the worst cases.
These civil wrongs, will be subject to a five year term of extinction (term given using a recall to art. 2947 of the civil code) and they will be subject to Court that is competent to decide on the compensation for damage: the Judge takes the decision concerning the civil penalty at the end of the Trial, if he approves the claim for damages.
The Trials will be celebrated according to the rules of the civil trial, also for the purposes of the civil fine: such fine cannot be applied in the case in which the writ of summon is served according to art. 143 c.p.c. (notification to person whose residence, home or domicile are unknown).
The Judge will decide the amount of the civil fine according to the criterion named under art. 5 of the Legslative Decree 7/2016, instead of “recidivism” we will have “repetition” and, at this purpose, we will have an alternative criminal record office named electronic register of the decision concerning the civil penalties.
Paradoxically, the downgrading of offenses from criminal to civil trend will be accompanied by the tightening of sanctions (with very high discretion of the Judges) and the loss of the protections given by the rules of the criminal trial.
Moreover, the Legislative Decree n. 8/2016 qualified a huge number of crimes as administrative wrongs.
The decriminalization concerns all those crimes punished with the sole fine: the provision also applies to crimes that, in the worst cases, are punished with jail sentence, alone, alternative or in addition to the fine (in such case, these worst cases are meant to be autonomous crimes).
The intervention has general application but it has been expressly excluded the cases provided for by the Penal Code (except for cases named under Art. 2 of the Decree), by immigration Law and by those listed in the Annex to the Decree itself.
Again, there is a significant tightening of the sanctions since the new administrative penalty must be restated as follows:
a) from € 5,000 to € 10,000 for offenses punished with a fine not exceeding a maximum of €5,000;
b) from € 5,000 to € 30,000 for offenses punished with a fine not exceeding a a maximum of € 20,000;
c) from € 10,000 to € 50,000 for offenses punished with a fine not exceeding a a maximum of € 20,000.
Also, when there is a proportionate monetary penalty, even without determining the minimum or maximum limits, the sum due is equal to the amount of the fine, but it cannot, in any case, be less than € 5,000 or more than € 50,000.
Sanctions will be imposed by the Prefect where the administrative offense is one of those covered by the Criminal Code and mentioned by Art. 2 of Legislative Decree N. 8/2016: in other cases, the competent Administrative Authority shall be identified according to the criteria set out at art. 7.
In proceedings for the application of these administrative sanctions, the provisions of Sections I and II of Chapter I of the law 24 November 1981 n. 689 shall be applied.
See also: crimes and civil wrong of forgery after the Legislative Decree 7/2016 - the abrogation of the crime of obloquy - Malicious damaging after Legisltative Decree. no 7/2016 - The Legisltative Decree No. 8/2016 and the new administrative wrongs
Como, 16 February 2016