The Crime of Harassment

 

The crime of harassment pursuant to art. 660 of the Criminal Code punishes ” anyone in a public place or open to the public, or by telephone, petulance or other reprehensible reason, brings to some harassment or disturbance ” with arrest up to six months or with a fine up to at 516 euros.

Protected legal good

Protected legal good

The legal asset protected by the incriminating norm, according to the traditional orientation, would be public order, understood in general as public tranquility (see, ex multis, Cassation No. 22055/2013).

On the basis of this orientation, the legislator, through the provision of a fact that harasses the private peace, intends in fact to protect ” the public tranquility for the incidence that its disturbance has on public order, given the abstract possibility of reaction “.

The intimate sphere of quiet and freedom of the offended person, therefore, receives a protection “only reflected so that the penal protection is granted even without and even against the will of the molested or disturbed persons” (see, ex multis, Cass. 10983/2011; Milan Court No. 8118/2008).

Active and passive subjects

Active and passive subjects

Since this is a common crime, on the agent’s level it can be committed by anyone and in a free form that is perfected with the occurrence of a harmful event.

As for the taxable person, instead, harassment and disturbance must reach a specific person and not the general public or a part of it (see, among others, Cassation No. 12002/1985).

It is not necessary that the conduct be held in the presence of the injured person (such as for example in the case of the crime committed with the use of the telephone) and the crime may also exist if the agent brings harassment or disturbance to a different person from that targeted (see, Cassation 27.4.1994; Cassation 17.2.1965), except in the case of specificity of the person actually targeted by the agent. In this case, in fact, the unforeseen change of the passive subject excludes the existence of the psychological element in the agent himself (Cass. N. 36225/2007).

Objective element

Objective element

The crime consists of any objectively suitable conduct to harass and disturb third parties, interfering in the private life of others and in the relational life of others (Court of Cassation 8198/2006).

It is important to underline that harassment or disturbance must be evaluated with reference to normal average psychology, that is, in relation to the common way of feeling and living (Cassation No. 7355/1984).

The infringing crime pursuant to art. 660 of the Penal Code is not necessarily a habitual offense, therefore it can be carried out even with a single action (Cassation No. 43439/2010).

As for petulance, the same is understood as “an attitude of arrogant intrusiveness and continuous and inappropriate intrusion in the sphere of freedom, with the consequence that the plurality of disturbing actions integrates the material element constituting the crime and not ?, therefore, attributable to the hypothesis of the continued crime “(Cassation n. 6908/2011; Cassation n. 17308/2008).

The reprehensible reason, on the other hand, indicates in a residual way any other reprehensible motive in itself or in relation to the qualities or conditions of the harassed person and that has on the latter the same effects as the petulance (Cassation n. 12251/1986).

Article. 660 of the Penal Code also requires the requirement of “advertising of the place”, which exists “both in the case in which the agent is in a public place or open to the public and the taxable person in a private place, in the event that the harassment is caused by a private place in respect of those who are in a public place or open to the public “(Cass. No. 11524/1986).

Finally, the provision punishes harassment committed through the telephone, and therefore also those implemented through the sending of “short messages system” (SMS ) transmitted via mobile or fixed telephone systems (Cassation No. 30294/2011; Cassation No. 10983/2011).

Subjective element

Subjective element

For the purposes of the existence of the subjective element of the offense of harassment or disturbance to persons, pursuant to art. 660 of the Criminal Code, the conscience and will of the conduct is sufficient, accompanied by the awareness of the objective suitability to harass or disturb, without valid reason, the subject who suffers it (Cassation No. 19071/2004; Cassation No. 11855 / 1995).

The intent pursued by the agent is completely irrelevant, once it has been ascertained that, regardless of the motivations behind the behavior, it is characterized by an urgent, repetitive, insistent, indiscreet manner of action that ends up interfering unpleasantly in the sphere of peace and freedom of persons (Court of Cassation n. 13555/1998; Trib. Trento, n. 863/2011).

The offense must also be considered configured when the agent exercises, or believes he exercises, his own right, in such a way, however, as to reveal the existence of a specific malice that translates into mere spite caused by any reprehensible motive “(Cassation No. 2314/1992; Cassation No. 9619/2004).

Procedural aspects

Procedural aspects

The crime in question is punished with an arrest of up to six months or a fine of up to 516 euros.

Ibile prosecuted ex officio and consequently, when the fact can be prosecuted also for threats (or other lawsuits), according to the scheme of the so-called complex crime, the absence of the complaint or the relative remission ” does not affect the procedibilit? of the action for the offense crime, while the latter, in the case of the simultaneous prosecution of the crime punishable by lawsuit, remains instead absorbed in the most serious case “(Cass. n. 25045/2002).

From the jurisprudence it was also considered legitimate the preventive seizure: the specific case concerned a telephone user, used continuously and exclusively to commit the crime of harassment (Cassation No. 5148/1997).

Supreme Court of Cassation

Supreme Court of Cassation

Criminal Cassation Section I judgment of 05/13/2015 n. 22152
No one commits a crime of harassment who makes repeated telephone and telematic contact attempts to the former partner if such conduct is not aimed at creating inconvenience or harassment but only to have news of the minor child, in order to be able to meet him, thus exercising his own parent rights.

Criminal Cassation Section I judgment of 12/16/2014 n. 9962
The perpetrator of harassment commits repeated telephone ringing on the fixed user of the offended persons.

Criminal Cassation Section I judgment of 07/11/2014 n. 37596
Even Facebook represents a sort of virtual agor? and must therefore be considered a place open to the public for the purposes of configurability of the crime pursuant to art. 660 cp (hypothesis concerning the harassment carried out by sending harassing messages on the Facebook page of the injured person.

Criminal Cassation Section I judgment of 07/03/2013 n. 20200
The conduct of harassment is supplemented by the conduct of those who carry out 12 mute phone calls of a few seconds to the telephone user of the injured party.

Criminal Cassation Section I judgment of 11/22/2011 n. 47667
It is a crime of harassment to insert the person’s mobile number on a website dedicated to the exchange of information of a sexual nature.

Criminal Cassation Section I judgment of 06/24/2011 n. 30294
The provision of art. 660 of the Penal Code punishes the harassment committed through the telephone, and therefore also the harassment implemented through the sending of short messages system (SMS) transmitted through mobile or fixed telephone systems