23 May fascist greeting: criminal relief

The so-called 'Roman salute' or 'Fascist salute' (even when accompanied by the expression 'present and we are proud of it') it constitutes an external or proper manifestation of the organizations or groups indicated in the law decree 122/1993, containing urgent measures in the field of racial discrimination, ethnic or religious, and is unequivocally aimed at encouraging the spread of ideas based on superiority or racial or ethnic hatred; it follows that the related gesture integrates the offense provided for by art. 2 of the aforementioned law decree. The nature of the crime of abstract danger of this last criminal offense imposes, for its configuration, that the suitability of the conduct to offend the legal asset is ascertained, contextualizing the agent's behavior through an ex ante judgment. This contextualization presupposes an investigation aimed at verifying whether the accused's conduct is abstractly suitable for being perceived as an external manifestation or as a symbolic and emblematic ostentation of the organizations, associations, movements or groups referred to in art. 3, L. 654/75 (Cass. 21409/19).