Italian Supreme Court of Cassation, Criminal Section III, No. 24594/2018, 22 February 2018

Recourse against conviction for the crimes of domestic violence, sexual assault, breach of family care obligations. Victim was the defendant's wife. Belonging to a minority culture that influenced the offending conducts. Consent of the entitled person. Exercise of a right. Punitive treatment.

Art. 2 Italian Constitution
Art. 3 Italian Constitution
Artt. 29-31 Italian Constitution
Art. 50 Italian criminal code
Art. 572 Italian criminal code
Art. 609-bis Italian criminal code

1. The crime of domestic violence cannot be excused by the entitled person's consent, even if affirmed on the basis of sub-cultural options relating to other systems than the Italian one. Such sub-cultures, in fact, if in force, would be in absolute conflict with the principles underlying the Italian legal system, in particular with the guarantee of the inviolable human rights enshrined in article 2 of the Italian Constitution, which are specifically taken into account in the matter of family law in articles 29 and 31 of the Italian Constitution.

2. The foreigner accused of a crime against the person or against the family cannot invoke, not even in a putative form, the exculpatory defence of the exercise of a right, correlated to faculties allegedly recognized by the system of the State of origin, if such right is objectively incompatible with the rules of the Italian system, in which the agent has chosen to live, given the need to enhance – in line with article 3 of the Italian Constitution – the centrality of the human person, as a principle capable of harmonising individual conceptions responding to different cultures, and thus allowing the establishment of a multi-ethnic civil society.
In fact, the crime referred to in article 609-bis of the Italian criminal code is committed whenever the individual’s freedom to engage in sexual acts in absolute autonomy, without physical or moral constraints, is harmed; with the consequence that any justifications put forward in the name of alleged limitations or cultural differences in the conception of marital relationship have no right of citizenship in the assessment of the criminal conduct, since they would lead to the subversion of the principle of compulsoriness of criminal law and to the weakening of the protection of an absolute and inviolable human right such as sexual freedom.

3. In the presence of crimes that violate fundamental rights of the person, no room for greater or minor sanction rigor can be allowed even in abstract, since the same treatment must be applied to all those who find themselves acting in the Italian State, and who are therefore bound to respect its rules and values, enshrined in the Constitutional Charter and in the laws that the national community has adopted.

(In the case in question, the defendant's defence had based the existence of the exemption of the right holder's consent on the Albanian origin of the defendant and of the offended persons, for whom a different conception of family relations from that in force in the Italian legal system is allegedly valid. Moreover, with regard to the punitive treatment, the applicant had argued that in his country of origin his marital situation could also have been brought within the scope of accepted, at least customary, conducts).