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No Silence Codebreak the wall of silenceDraft bill - Popular initiative lawof the Fearless Lives Association
The very recent case Talpis v. Italy in which the Court of Human Rights held the Italian State responsible for not having taken the appropriate measures to end the violence perpetrated by the husband against the woman victim of discrimination and inhuman and degrading treatment as well as for the psychological damage to the children who they had witnessed it, and the incessant recurrence of violence and often murders against women impose a careful rethinking of the legislation which evidently has become inadequate to protect the victims, in a context in which the phenomenon of femicide is by now unfortunately not an exception.ReportIn Italy The crime of stalking (from English to stalk, literally "to do the mail") has become part of the Italian criminal system through the legislative decree n. 11/2009 (converted from Law no. 38/2009) which introduced art. 612-bis of the Italian Criminal Code, the crime of "persecutory acts", which punishes anyone "with repeated conduct, threatens or harasses someone in order to cause a persistent and serious state of anxiety or fear or to generate a well-founded fear of safety his or her close relative or person linked to him by emotional relationship or by forcing him to alter his life habits ".Even if the abstract case study shows that there is often a relationship of an emotional, sentimental or otherwise qualified nature that binds the agent to the victim (eg boyfriends or ex-jealous husbands, or even stalkers on "commissions" who commit the crime instead of another, etc.), for art. 612-bis of the Italian Criminal Code stalking is a common crime that can be committed by anyone, even by those who, therefore, have no connection whatsoever with the victim, without assuming the existence of specific subjective interrelations (Cass. n. 24575/2012).This also constitutes the discrimination with the most serious crime of abuse in the family (unless the so-called "subsidiarity clause" provided for by art. 612-bis, paragraph 1, of the Italian Criminal Code, intervenes, "unless the fact constitutes a more serious crime "which would make applicable the offense referred to in art. 572 of the Italian Criminal Code), a specific offense that can be committed only by those who play a role in the family context (spouse, parent, child, etc.) or a position of authority or peculiar entrustment in the community aggregations assimilated to the family by art. 572 of the Italian Criminal Code (such as education, education, care bodies, etc.) (Cass. n. 24575/2012).According to the art. 612-bis, first paragraph, of the Italian Civil Code (as modified by art.1-bis, paragraph 1, of the dln 78/2013, converted by the ln 94/2013, which raised the maximum edict), the crime is punished with imprisonment from 6 months to 5 years, unless the fact no longer constitutes a serious crime.In the second and third paragraphs of the provision, two aggravating circumstances are envisaged.In the second paragraph, the legislator, with the legislative decree n. 93/2013, converted by Law no. n. 119/2013 (the so-called femicide law), has extended the aggravating circumstance previously limited to harassing conduct carried out outside the family context, to persecutory acts committed by the spouse in constant marriage or even separated and divorced, or by person, currently or in the past linked by emotional relationship to the victim, or, again, committed through IT and telematic tools.In such cases the penalty referred to in the first paragraph will be increased to one third.The increase in the penalty will, however, reach up to half if the crime of persecutory acts was committed to the detriment of the weakest subjects (i.e. minors, pregnant women or persons with disabilities referred to in art.3 104/1992) or, again, if the facts are committed with the use of weapons or by a misrepresented person, due to the particular danger of the methods for the safety of the victim and their suitability to increase the intimidating effect of the conducted on the same.Currently, with reference to the procedure of prosecution, the crime is normally punished in the complaint of the offended person.The deadline for filing a lawsuit is six months (corresponding to the highest one foreseen for crimes of sexual violence) and begins to run "from the consummation of the crime, which coincides with the 'event of damage' consisting in the alteration of one's life or in a persistent state of anxiety or fear, or with 'the event of danger consisting in the well-founded fear for one's own safety or one's neighbor's safety "(Cass. n. 17082/2015).Remission can only be procedural. In any case, the lawsuit is irrevocable if the fact is committed through repeated threats in the ways referred to in the second paragraph of art. 612 of the criminal code (i.e. serious threats committed with weapons or anonymous writings, in a symbolic way, by misrepresented people or by several gathered people, etc.).