The Italian penal code makes the offense of beatings fall within the sphere of crimes against the person (articles 575-623 bis). The crime, if the fact does not result in a disease in the body or in the mind and if the violence is not a constitutive element or an aggravating circumstance of another crime, is punished according to Article 581 of the Criminal Code with imprisonment up to six months or a fine up to 309 euros.
Protected legal good
The legal asset protected in the crime of beatings is the individual safety, that is the physical integrity of the person against any aggression that results in a violence on the body.
In other words, the legal system aims to protect, with the prediction of the punishment of the crime of beatings, the safety of the person or according to some thesis, the so-called ” intangibility ” of the human body, in its physical and psychic dimension and, more generally, the good health, constitutionally protected by art. 32, as “the fundamental right of the individual and the interest of the community”.
Active and passive subject of the crime
The active subject of the offense can be any individual and the offense is considered consummated when the act of striking is carried out, which, for the purpose of configuring the crime de quo, must correspond to a violent act that does not cause in the victim of pathological effects or after-effects of any kind constituting disease but only a brief painful sensation (Cass. n. 7388/1985), a purely formal violence of imperceptible entity (Cassation n. 1801/1986); a simple reaction of fear or anger, able to vanish in a very short time and even the absence of any effect.
The passive subject is necessarily a living being, since the violent action against an individual who is no longer alive could integrate, if anything, the hypothesis of a contempt for a corpse as per art. 410 cp
It is a formal crime, or pure conduct, in which the event identifies itself with the action: the crime of beatings, therefore, is consummated when every violent behavior of the other person is carried out, of any kind and intensity, suitable only to produce painful painful sensations, but not already a disease or other morbid after-effect, otherwise it would fall back to the hypothesis of personal injury (see Cassation n. 19405/2009; Cassation n. 186593/1990).
The essential element of the crime is, therefore, the physical violence that is expressed in a conduct suitable to provoke an appreciable sensation of pain, which, however, does not need to be concretely provoked, being able also to be, for particular reasons, only possible (eg in the hypothesis of anesthesia or insensitivity of the area of the affected body, on the basis of which the injured person is not affected by any physical pain, see Cassation 11.6.1985, CED 170189, RP 1986, 590).
The act of striking implies, therefore, a commissive conduct, which can be carried out through any form ( slap, punch, kick, beating, pushing, spanking, hair pulling, etc.) (Cass. N. 1801/1986; Cass 800/1984) and offensive both natural (hands, head, feet, etc.) and artificial means (stones, sticks, books, etc.).
The structure of the crime of beatings allows the configurability of the attempt (for example in the case of a punch or a push gone to empty due to the promptness of reflexes on the part of the victim, or thanks to the intervention of a third party, etc.).
The psychological element of the crime is represented by the awareness of striking.
The crime, therefore, is always malicious and requires only the generic intent, or ” the conscience and the will to maintain a violent conduct such as to cause a painful sensation to the passive subject, while the psychic antecedents of the conduct, ie the motive, are irrelevant of the typical behavior described by the general rule “(Cass. Pen. n. 4326/1979), since it is not essential that, for the purposes of integration of the crime, the intention to cause physical pain should be accompanied (eg in the case of push for playful intent, good-natured challenge, etc.).
The crime of beatings is prosecutable only to the complaint of the injured person but arrest, detention and precautionary measures are not permitted.
In addition, the aggravating and common extenuating circumstances (pursuant to articles 61 and 62 of the Criminal Code) apply to the incriminating case.
Starting from 2 January 2002, date of entry into force of Legislative Decree no. 274/2000, the crime was passed to the Justice of the Peace (Cassation No. 30736/2009), which applies the fine of only 258 to 2,582 euros (ex art. 52 paragraph 2 letter a), d Legislative Decree n. 274/2000), unless the aggravating circumstances indicated in the art. 4 of the decree, since in this case the crime falls under the criminal jurisdiction of the monocratic tribunal and the editorial framework applies (imprisonment up to 6 months or a fine of up to 309 euros) provided for by art. 581 cp
Relations with other crimes
For the majority jurisprudence, the crime of beatings differs from that of personal injury pursuant to art. 582 cp only from the point of view of the objective element: the first, in fact, is reduced to a mere painful sensation, while the second causes the passive subject to a lesion from which a disease in the body and mind derives (Cass. N. 15420 / 2008; Cassation No. 714/1999).
With reference to relations with other crimes, the crime pursuant to art. 581 Criminal Code remains absorbed in more serious crimes, in which violence is an aggravating circumstance or constitutive element of the crime [such as, for example, the crime of ill-treatment in the family pursuant to art. 572 of the criminal code (Cass. No. 7043/2005), private violence pursuant to art. 610 cp (Cass. N. 4669/1995), the robbery (art. 628 cp), the brawl (art. 588 cp), etc.].
In order, instead, to the crime of insult, the dominant orientation believes that the action of striking can be qualified as such only in exceptional cases, in which the beatings are ” expression of a purely formal violence, of imperceptible entity, which witness the intent to avoid any slightest suffering to the injured party, highlighting instead the exclusive purpose of causing moral offense ” (Cass. n. 1801/1986).
To this end, therefore, “the rigorous proof is necessary, on the one hand that the intention of the author of the act was exclusively to bring about a moral offense, on the other that the violence was only apparent because the conduct of the agent directed only to debase the victim with a gesture of contempt contained this gesture to a measure so well calculated as to avoid any physical suffering even of very small entity “(Cassation No. 800/1984).
Finally, acts aimed only at striking can determine responsibilities for injuries, perhaps very serious or for intentional homicide (Cass. N. 44751/2008).
Jurisprudence on the subject of beatings
Criminal Court of Cassation 02/07/2014 n. 35709 On the subject of unintentional homicide, the failure by the victim to comply with the treatment and treatment prescribed by health professionals does not eliminate the causal link between the conduct of beatings or personal injuries carried out by the agent and the death event, by not integrating this omission an unforeseeable fact or an absolutely atypical development of the causal series.
Criminal Cassation Section V 06/13/2014 n. 51085 The term whacking is not taken in the art. 581 of the Criminal Code in the sole meaning of beating, hitting, beating, but also in that side, including any violent tampering with the physical person, with the consequence that in this forecast context also includes the push, which takes shape in a physical energy exercised with violence and directly on the person.
Criminal Court of Cassation 02/06/2013 n. 27990 The physical contact made with the affixing of the hands around the passive subject’s neck integrates the crime of beatings, even if the hold is not such as to leave ecchymotic traces.
Criminal Court of Cassation 05/02/2013 n. 15839 The existence of the crime of injury and not that of beatings derives from the ascertained healability of the illness caused, the difference between the beat, which does not produce disease, and the personal injuries which, conversely, this alteration of the state of health is known cause.