08 Oct impaired defense

The impaired defense is a common aggravating circumstance that occurs, ex art. 61 co. 1 n. 5, when the offender has committed the crime by taking advantage of a weak situation of the offended person, weakness generally related to time, to the place, or to a particular vulnerable condition of the victim himself, tale, that is, to effectively and concretely hinder the private or public defense of which, therefore, the offender took advantage of the prosecution and commission of the crime.

In other words, we talk, to evidence, of an aggravating circumstance whose existence makes the offender's conduct particularly reprehensible e, therefore, "Deserving" of a penalty.

Examples of situations in which it can stand out, for the purposes of the dispute, the impaired defense are innumerable; think for example of the thief who takes advantage of an elderly person to steal a wallet, or to the theft committed against a person who, due to an illness, fainted or, again to the scammer who takes advantage of some disability of the victim to carry out the preordained crime.

The institution in question, indeed, qualifying as common aggravating circumstance it is applicable to a copious series of crimes foreseen by our penal code; in fact, the relationship between this circumstance and the criminal offense of simple theft is strongly discussed (ex art. 624 c.p.).

As is well known, in its essence, the crime of theft is a form of possession that becomes against the right when made by subtracting a movable thing of others, with the aim of making a profit (for himself or for others) and for this purpose it is the most common and widespread form of crime against property.

Precisely in relation to the theft, recent Jurisprudence (Cass. Pen. sent. n. 20480/18 – also recently reaffirmed) established that the commission of said offense at night, integrates the case considered by art. 61 co. 1 n. 5, due to reduced public surveillance and in consideration of the reduced possibility of surveillance by private citizens. This is not limited to considering the commission of a crime at night as the only reason for applying the aggravating circumstance in question, since the reduced defense is considered to exist in the presence of circumstances and elements such as to concretely place the public or private subject in a disproportionate position compared to the offender, that is, in a position of vulnerability and disadvantage.

In other words, this is a circumstance of nature objective, consisting in having consciously taken advantage of favorable circumstances (moreover known to the offender) useful for facilitating the crime itself.

Basically, also according to the consolidated jurisprudential guidelines, public or private defense is not required to be completely impossible, it being sufficient that it is objectively hindered. Naturally, so that the circumstance in question can be said to be effectively applicable, it is necessary that there are objective conditions that are known and therefore known to the agent and which the agent has voluntarily taken advantage of (is required, therefore, an overall assessment by the judging body, case by case, that takes into account all the elements available and accessible to the basic case, such as the age of the victim, the actual state of health, the surrounding environment ...).

Just in reference at the age of the victim of the crime, the law n. 94 of the 2009 has expressly included among the conditions that can be placed at the basis of the assessment regarding the existence of the impaired defense, the age of the victim.

In this way, the Legislator intended to introduce enhanced protection in favor of two particular categories of victims: the elderly and minors, notwithstanding, in any case, as anticipated, that the registry element also goes absolutely analyzed and evaluated in a careful way, being able to integrate the circumstance in question only where age actually entails, in the concrete case, an obstacle or in any case a decrease in the victim's defense or a decrease in the public defense that can be offered to the victim.

To about, in recent periods the Court of Cassation in S.U. has returned to pronounce (Cass. pen. sent. n. 8266 of the 09/03/2022) in reference to a specific and delicate case, trying to answer a question raised in jurisprudential debates, that is, whether the advanced age of the victim should automatically be considered a cause of charge for the aggravating circumstance provided for by art. 61 co. 1 n. 5.

The fulcrum, as we will see shortly, on which the Supreme Court was again called to rule was in particular on the existence or not of an absolute presumption (only by virtue of the objective element of the victim's advanced age) the relative (also, on the basis of additional evidence) for the purpose of configuring the aggravating circumstance of the handicapped defense.

With the sentence of 11/02/2019, the Court of Milan, upon the outcome of an abbreviated judgment, sentenced the defendant to the penalty of 8 months of imprisonment, as he was found guilty of the crime of attempted aggravated fraud, pursuant to art. 640 comma 2 to c.p.

The ruling of the Judge of First Cures was challenged before the Milan Court of Appeal, which, however, confirmed the first degree sentence. The accused, so, appealed to the Supreme Court, challenging the sentence handed down on two grounds:

1) violation of the law regarding the deemed configurability of the aggravating circumstance referred to in art. 61 n. 5 c.p. (it was noted that the Court of Appeal had recognized this aggravating circumstance, without, however, sufficiently motivate the merits and without making any reference to the evidential evidence offered by the defense regarding the factual elements certifying the total lucidity of the injured person);

2) lack of motivation at the point of sanctioning treatment.

Based on these reasons, the Supreme Court held, however, to reject the appeal, noting as the first reason (object of our specific and greatest interest) is, altogether, like the second, manifestly unfounded.

In particular, in reference to the first reason I adopt, the College referred to the arguments contained in a previous ruling issued by the S. U. of the same Court (cfr. Cass. pen., s.u., n. 40275 of the 15/07/2021) in the field of "necessary conditions for the integration of the aggravating circumstance of the impaired defense”.

In particular, it was remembered as art. 1 comma 7 of the law 15 July 2009 n. 94, containing "provisions on public safety", in accordance with the majority jurisprudential address previously formed, had introduced, within art. 61 n. 5, the reference to the age of the victim, inserting the words "also with reference to age”.

Such a story, albeit apparently devoid of intrinsic doubts, brought to light a new problem, namely establishing whether the reference to the age of the person offended by the crime entailed the automatic integration of the aggravating circumstance in question, in exclusive consideration of the aforementioned objective element, or if instead the legislator of the time had wanted to introduce a relative presumption of impaired defense of the victim's age.

In the opinion of an orientation that, for a long time, has dominated the jurisprudential scene of legitimacy (think of the Cass ruling. pen. Sez. II of the 23/09/2010 n. 35997 – Cass. pen. Sez. V n. 38347 of the 13/07/2011), the advanced age of the victim was unable to integrate an absolute presumption of impaired defense due to the reduced capacity of resistance of the injured person, since other situations need to be evaluated, including the particular vulnerability of the elderly, his lack of clarity or orientation, with the consequent facilitation of the criminal conduct of the agent.

As crystallized by the Supreme Court (Cass. pen. n. 27865/2020) “the advanced age that, based on maxims of experience, it is associated with a lower physical and cognitive reactivity and is therefore relevant in crimes that require direct interaction with the victim, a "relative index" of vulnerability that must be subjected to a judicial review that confirms or devalues ​​its relevance. The aging process is in fact not homogeneous and , while some people may have a quick one (even anomalous) cognitive impairment, others can maintain lucidity and reactive ability for a long time despite the advancing age; fewer discontinuities are found in the loss of "physical reactivity", inevitable with age. Advanced age has been traced back to a non-absolute index, but its vulnerability, it will be the task of the judge of merit to assess whether in the interaction with the offender the age of the victim has played a facilitating role due to the physical or cognitive impairment of the injured party”.

On the contrary, he expressed himself, however, a different jurisprudential address of legitimacy (Cass. pen. 12796 of the 21/02/2019) feeling like, in relation only to crimes that require an interaction between the agent and the victim (in the present case there was talk of theft by ripping) for the integration of the aggravating circumstance in question, the facilitation of criminal conduct, resulting from the advanced age of the injured person, was intrinsic, not placing any further burden of proof and motivation on the judge of merit with respect to the objective element of the victim's age.

Halfway between these two orientations, a line of thought has arisen ( think of the Cass ruling. pen. 43285/2019) which was able to balance the opposite principles on the basis of the first two addresses, establishing that the contestation of the aggravating circumstance referred to in art. 61 n. 5 it could not be carried out only in relation to the advanced age of the offended person but rather, according to the different cases, enhancing, eg, the circumstance of temporary isolation of the victims, of a state of illness, of a previous acquaintance or common belonging to a certain group.

Recalling the aforementioned remarks about the jurisprudential debate that arose in the matter of impaired defense, the Ermellini with the pronunciation of 09/03/2022 stated that the judges of merit had not recognized the integration of the aggravating circumstance only on the basis of the age of the victim, but by virtue of the modalities of events and the general conditions of fragility of the aforementioned. Notably, the Judges had correctly observed how the victim had set the appointment "unaware that it was a possible scam", adding how the methods of criminal conduct were aimed at taking advantage of age in the sense of loneliness of the injured person.

In conclusion, from the analysis of this legitimacy ruling it emerges that it is still uncertain, within the Supreme Court itself, with respect to the configuration, automatic or not, of the circumstance in words, as part of all those unlawful conduct involving contact between agent and victim in an advanced state of age.

What can undoubtedly be considered peaceful is how the role of the Judge takes on an even more pregnant significance, with a precise motivational burden for the purposes of a correct decision, mostly, in those cases where the evaluation of a mere personal data, not included in the single case e, therefore, in the overall space-time context, also evidentiary, where the offense actions took place, can lead to excessively burdensome judgments, depending on your point of view, for both the acting subject and the victim.

Recently there has been talk of impaired defense also in relation to the crime of online fraud referred to in 640 ter c.p.

Effectively, the sentence of the Cass. Pen. n. 1085 of the 13/01/2021, has specifically ruled on the configurability of the aggravating circumstance in question in relation to the cases of fraud in the sales of online products. In the present case that the Court found itself examining, we got to clarify that :"There is the aggravating circumstance of the weakened defense, with reference to the local circumstances known to the perpetrator of the crime and from which the same has taken advantage, in the hypothesis of scams committed by selling products online, because in such cases the distance between the place where the victim is ( that is, the buyer who generally pays the price of the goods sold in advance) and the one in which the active subject is located, determines a natural position of greater favor for the latter, allowing, then, the agent to hide their real identity, not to subject the sold product to an appropriate preventive control and to escape easily from the consequences of their conduct”.

This orientation can certainly be said to be acceptable given that, due to the shortage of time and greater logistical-economic convenience, purchases made through the use of internet platforms are increasingly growing, in most cases in the absence of prior face-to-face or telephone meetings between the contracting parties, and this regardless of the personal data or the objective physical conditions of the injured persons.