Italian Court of Cassation (Corte di Cassazione italiana), Criminal Section I, No. 7904/2022, 4 March 2022

Commemorative event for the fallen of the Italian Social Republic. Danger of re-establishment of the dissolved fascist party.

Law 20 June 1952, no. 645 (implementing rules concerning the XII transitional and final provision of the Constitution)

Law 25 June 1993, no. 205 (containing urgent measures on racial, ethnic and religious discrimination)

Law 13 October 1975, no. 654 (ratifying and executing the New York Convention on the Elimination of All Forms of Racial Discrimination)

Art. 604-bis penal code (propaganda and incitement to commit crime for discrimination on racial, ethnic and religious grounds)
 

1. The provisions of Law no. 654 of 1975 (ratifying and executing the New York Convention on the Elimination of All Forms of Racial Discrimination) do not aim to prevent the re-enactment of historical groups but rather to punish associative conducts that are currently existing, with the primary need to identify the “group” to which the conducts of proselytism pertain. Such relationship does not require a “historical” organization, but an organization, movement or group which exists and operates at the time when the criminally relevant conduct is put in place.

2. An organization cannot be ascribed to the groups prohibited by law, where the use of customary manifestations of the dissolved fascist party, in the absence of the concrete danger of its reconstitution, is to be framed in an undeniably commemorative context of the fallen of the Italian Social Republic.
(In the present case, where the Court of Appeal had sentenced some members of group “Lealtà e Azione” for carrying out demonstrations typical of the dissolved fascist party – including the s.c. “roman salute” – at Cimitero Maggiore in Milan, the Court of Cassation ordered the annulment of the contested decision as the fact does not exist).