Italian Supreme Court of Cassation, Criminal Section I, No. 11591/2015, 28 October 2015

Recourse against conviction for intentional homicide for “honour-related” reasons within a Roma community. Evaluation of the futility of the motivations and applicability of the relative aggravating circumstance.

Art. 2 Italian Constitution  

Art. 3 Italian Constitution

Art. 575 Italian criminal code

Art. 61, no. 1 Italian criminal code

1. For the purposes of the recognition of the aggravating circumstance of abject or futile motives, provided for by article 61, no. 1 of the Italian Criminal Code, the common belonging of the defendants to an ethnic group (such as the Roma) characterised by peculiar lifestyles and a particular conception of family honour, capable of conditioning their emotional and passionate states, cannot be suitable to attenuate the ethical-juridical disvalue of the motive inspiring the criminal conduct, and therefore cannot exclude under this profile even the futility of the reasons for the crime (in this case, for the murder).
This is all the more so when the customs and cultural orientations of a specific community contrast with the primary values of the positive legal order (to which they must instead be subordinated), such as life and personal freedom (also with reference to the choices, individual and familiar, on the matter of relationships and affective relations and free frequentation of persons.)

2. The assessment of the futility of a motive cannot be referred to an average behaviour (given the difficulty of defining the contours of such an abstract model of action), but must be anchored to the concrete elements of the case, also taking into account the cultural connotations of the judged persons, the social context in which the fact occurred, as well as the environmental factors that may have conditioned the criminal conduct, requiring the identification in concrete terms of the nature and extent of the reason for the criminal conduct, as an unequivocal indication of a more pronounced criminal instinct and a high degree of dangerousness on the part of the agent.
However, this criterion of judgement cannot in any way justify a compression of the imperative protection that must be ensured to the principles and fundamental goods recognised by the constitutional order, with respect to which no ideal, cultural or customary orientation of persons, groups or communities living and operating within the general collectivity can be in open contrast.

(In the case in question the applicants, members of a Roma community, had been convicted of the murder of a man belonging to a different family, committed in retaliation and revenge, which was transversal to the whole “enemy” family and stemmed from an extra-marital affair between a nephew of the victim's future wife and the daughter of the murder's instigators, who had become pregnant and fled with her lover also thanks to the help of the victim, who had accompanied them to the airport.
The merit judgments had applied the aggravating circumstance of futile motives, under article 61, no. 1 of the Italian Criminal Code, with regard to the enormous disproportion existing between the murder and its motive. The defendants lodged a recourse complaining, among other things, of the failure to anchor the futility of the motive to the cultural connotations and the circumstances in which the crime had matured, and the failure to take into account the particular conception of “family honour” that the defendants had perceived as harmed and deserving revenge. The Court of Cassation held that this complaint was unfounded, being the conception of honour irrelevant for the exclusion of the aggravating circumstance, and confirmed the existence of the aggravating circumstance of futile motives, in application of the principles set out above.)