Italian Supreme Court of Cassation, Criminal Section VI, No. 55/2002, 8 November 2002

Recourse against conviction for crimes of domestic violence and serious personal injuries, victim was the wife of the defendant. Cultural and religious background that influenced the illicit conducts. Defendant's subjective element.

Art. 2 Italian Constitution
Art. 3 Italian Constitution
Art. 5 Italian criminal code
Art. 572 Italian criminal code

1. The different conception, compared to the Italian one, that a defendant of Muslim religion has of family cohabitation and of the powers due to him as “head of the family”, according to which one can validly dispose of the hierarchy and of the habits of life within his own family nucleus, without external interventions being able to sanction behaviours that are perceived as legitimate, cannot in any way exclude the subjective element of malice for the crime of domestic violence, since such a conception is in absolute contrast with the rules on which the Italian legal system is based.

2. The constitutional principles laid down in articles 2 and 3 of the Italian Constitution, pertaining to the guarantee of the inviolable rights of man (to which physical integrity and sexual freedom undoubtedly belong), both as an individual and in social groups (which certainly include the family) and relating to equal social dignity and equality without distinction as to sex, constitute an insurmountable barrier against the introduction, in law and in fact, into civil society, of customs, practices, traditions that propose themselves as “anti-historical” in the face of the results obtained, over the centuries, to achieve the affirmation of the inviolable rights of the person, be it citizen or foreigner.

3. The subjective element of malice of the domestic violence is present, given the defendant’s obligation to be aware, pursuant to article 5 of the Italian criminal code, of the prohibition imposed by the law on the damaging behaviours he has engaged in, whatever may have been, for him, the assessment of the conduct he has wanted and realised (even if deemed harmless or socially useful).

(In the case in question, the defence had argued that the particularly rigid cultural and religious background of the defendant, who was of Muslim faith, had influenced his awareness of harassing and abusing his spouse, diluting his subjective element, since the material element that under article 572 of the Italian criminal code integrates the offence of domestic violence, would represent a normal relationship between a couple in an Islamic society. Consequently, according to the defence, the foreigner can be held liable for the offence of domestic violence only with the proof of his malice, consisting in the awareness of having crossed the threshold of what is considered to be conform to the law of Islamic society and having committed an illegal and vexatious act.)