The Legislative Decree n. 8/2016 qualified a many 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.
The reform leads to a relevant 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.
The decriminalization performed by Art. 2 of the the Legislative Decree n. 8/2016 has affected the following articles of the Criminal Code:
- Art. 527 cp, obscene acts in public places or open or exposed to the public, are no longer punished with imprisonment from three months to three years, but with a administrative penalty between € 5,000 to € 30,000. Such penalty is increased from one third to one half , if the offense is committed in or in close proximity to places usually frequented by minors and if there is the danger that they will see such acts;
- Art. 528 C.P., obscene publications and shows, are no longer punished with imprisonment from three months to three years and a fine not less than € 103 but with the administrative penalty from € 10,000 to € 50,000;
- Art. 652, refusing to give his services during a riot, is not punished anymore with imprisonment up to three months or a with fine of up to € 309, but with the administrative penalty from € 5,000 to € 15,000 or from € 6,000 to € 18,000 in the circumstance provided by the second paragraph occurs;
- Art. 661, abuse of popular credulity, is not punished anymore with imprisonment up to three months or a fine of up to € 1,032 but with the administrative penalty from € 5,000 to € 15,000;
- Art. 668, illegal theatrical or cinematic representations, are no longer punished with imprisonment up to six months or a with fine of up to € 309 but with the administrative penalty from € 5,000 to € 15,000, or with administrative penalty from € 10,000 to € 30,000 in the case referred to the third paragraph.
- Art. 726, acts contrary to public decency, subject to administrative fine ranging from € 5,000 to € 10,000.
This massive intervention of decriminalization also concerns many other crimes, contained in as many pieces of legislation (v. Art. 3 D.Lgs. 8/2016), such as, for example:
- The new paragraph 1-bis of art. 2 of Decree Law n. 463/1983, for which the omitted payment of withholdings, for an amount not exceeding € 10,000 per year, is now punished with an administrative penalty from € 10,000 to € 50,000 (the employer is not punishable, nor with the criminal sanction nor with the administrative penalty, when he performs the payment of withholding within three months from the finding of infringement).
- The new art. 171 quater of the Law 22 April 1941 n. 633, which no longer punishes with imprisonment up to one year or a with fine from € 516 to € 5.160 but with the administrative penalty from € 5,000 to € 30,000, those who (unless the fact constitutes a crime) rents or grants, originals, copies or lawfully obtained media of works protected by copyright or record on audio, video or audio-video supports protected performances.
- The new second paragraph of Art. 28 of the D.P.R. 309/1990 punishes with administrative penalty from € 5,000 to € 30,000 the failure to comply with regulations and guarantees prescribed for the authorization to grow plants otherwise prohibited.
The competent administrative authorities, also apply the sanction of suspension of the license, authorization or other administrative measure that permits the exercise of a inherent activity from a minimum of ten days to a maximum of three months, if the violation of art. 668 c.p., art. 171 quater of the law 22 April 1941 n. 633 or art. 28, paragraph 2, of the D.P.R. 309/1990, mentioned above, occurs.
The Judge, provides similarly when he is competent under Article 24 of the Law of 24 November 1981 n. 689 to decide about one of these violations (for which, in case of repeated offences, the payment of reduced penalty under art. 16 of Law 24 November 1981, n. 689 is not allowed).
As mentioned above, the decriminalization does not apply to crimes included in many legislative acts, mentioned into the annex to the Legislative Decree no. 8/2016, and listed under the following areas of law:
building regulation and urban planning
Environment, territory and landscape
Food and beverage
Health and safety in the workplace
gambling and betting
Weapons and explosives
Elections and political party financing
Como, 16 February 2016