07 Jan mitigating provocation
The mitigating circumstance of provocation is provided for in art. 62 n. 2 of the penal code and consists in "having acted in a state of anger caused by an unjust act of another person". First of all, the extenuating circumstance in question is a very different institution from the provocation, i.e. the cause of justification provided for by art. 599 comma 2 c.p. . In particular, the provision just referred to provides for the non-punishment of those who have committed certain acts envisaged by articles. 594 e 595 c.p. in the state of anger due to the unjust act of others which is followed by insult or defamation. The extenuating factor becomes a real one cause of non-punishment with reference to the crime of defamation (the crime of insult was in any case decriminalized in 2016: constitutes only a mere civil offence). To be configurable, the mitigating circumstance of provocation requires three specific and essential elements:
- the state of anger (subjective element) due to a psychological situation triggered by an irrepressible emotional impulse. Such emotional impulse leads to loss of self-control causing a strong upset characterized by aggression. The state of anger must be kept distinct from other psychological conditions such as fear, agitation, despair, resentment, vendetta; the most recent jurisprudence believes that the state of anger is "constituted by an emotional alteration that can also last over time and not be in an immediate relationship with the “wrongdoing of others” (Cass. 05 October 2022, n. 37699);
– the unjust act of others (objective element). To be 'unfair' it must be unlawful conduct, but it can also refer to the non-observance of social or customary norms that regulate ordinary civil coexistence. Can, then, returning to the unjust act of others contemptuous conduct, manifestation of bias, inappropriate or inappropriate behavior. The unjust act of others consists in any oppressive or persecutory behavior which takes the form of an offense to a value, an expectation, an opinion or behavior deemed worthy of consideration in a civilized and peaceful society. It doesn't have to be, then, of a necessarily unlawful fact. Exercising a right in such a way as to lead to abuse can also be considered an unjust fact. The most recent jurisprudence believes that the unjust act of others "must be characterized by the character of objective injustice, understood as effective opposition to legal rules, moral and social, considered such in the context of a specific community in a given historical moment and not with reference to the convictions of the accused and to his personal sensitivity" (Cass. 05 October 2022, n. 37699);
– the psychological causal link between the offense and the reaction, it shouldn't be mere occasional, regardless of the proportionality between them, provided that there is some adequacy between one and the other conduct (Cass. 05 October 2022, n. 37699).
The unjust fact can also be directed towards a subject different from the provoked if it is such as to trigger a state of anger in the one who witnesses the scene. Likewise, the reaction to the unjust fact can also be directed towards a subject other than the provocateur as long as there is an appreciable link between them (kinship bond, friendship, solidarity between the perpetrator and the provoked). It is sufficient that the unjust act is psychically attributable to its perpetrator, while it is irrelevant whether the act was committed with malice or negligence. The state of anger and the other's unjust deed do not necessarily have to be linked by a relationship of immediacy or a short time interval. The time that elapsed between the unjust fact and the reaction must be interpreted flexibly, no instantaneous reaction is needed. The agent's reaction can also take place after a prolonged period of time provided that he does not break the relationship with the unjust behavior of the provocateur. The jurisprudence recognizes the extenuating factor in the event of provocation 'by accumulation' provided that the existence of the persistence of a state of anger which justifies the explosion in a last episode is demonstrated.
The jurisprudence has held that the extenuating circumstance of provocation is incompatible with:
– the crime of affray, when the provocation is mutual (Cass. 10242/1995);
– the legitimate defense that pushes a person to commit a fact out of necessity to defend one's own right or that of others against the current danger of an unjust offense. The extenuating factor of provocation is incompatible with the exculpatory factor of legitimate defense since the subject who accepts or brings up a challenge or voluntarily places himself in a dangerous situation which suggests the need to defend himself from the aggression of others, he cannot invoke it (Cass. Sez. I n. 10406/2005).
The mitigating circumstance does not apply in the case of an offense combined with another offence: the reiteration cancels the initial effect of the taunt. Likewise, it is incompatible with a habitual crime characterized by unlawful conduct that is repeated over time.
It is important to understand that the unjust act of others is closely linked to objective injustice: he must, then, be contrary to legal rules, moral and social values within the community in a given historical moment. The fact contrary to the subjective beliefs or personal sensitivity of the accused cannot be considered unjust (Sez. 1, 4780/2014). During the years, various sentences have clarified once more the objective nature of the unjust act of others (including Cass. sez. V Penale, judgment n.1946/19, Cass. Sez. V, judgment no. 55741 of the 25/09/2017, Rv. 272044).
A proportion between the unjust fact and the reaction is not required, but jurisprudence excludes the extenuating factor when the disproportion between the unjust act of others and the crime committed is so gross and gross to exclude the causal nexus or the state of anger. In case of excessive disproportion, the offender's state of mind is considered to harbor feelings and psychological states other than anger (Cassation Section. V n. 24693/2004). With sentence no. 15529 of the 20/03/2018, the Court of Cassation - Section. And penalties, established the following. The proportion between the unjust act of others (objective) and the reaction may not contemplate the mitigating factor of the provocation in the event that the reaction is so excessive as to exclude the existence of the causal link between the provocative fact and the reaction (Sez. 5, 604/2014, Sez. 1, 28292/2017, Sez. 5, 57055/2018). The behavior of a parent who interferes in the sentimental choices of the cohabiting adult daughter does not in itself integrate the unjust act of others, because parental duties may persist with respect to the behaviors of adult children living together on which the parent decides to intervene (Sez. 1, 16595/2017). The refusal to continue a romantic relationship is the expression of the right to sexual freedom. Therefore, it does not integrate an unjust fact that it justifies, in the crime of sexual assault, recognition of the mitigating factor of provocation (Cass. Sez III n. 2702/2011). Not even the courtship of the wife of the offender constitutes an unjust fact (Cass. Sez. V n. 55741/2017) or having embarked on a romantic relationship (Cass. Sez. V n. 2725/2020). Betrayal does not integrate the extenuating factor of provocation, does not justify a mitigation of sanctions with respect to the markedly heteroaggressive reaction of the defendant (convicted of the crime of stalking), considering that, in the present case, the offended person was extraneous to the marital relationship and that his/her relational involvement with the defendant's husband could not constitute an unjust act at a criminal law level (Cass. V sez. judgment no. 2725/2020). Lately, the Court of Criminal Cassation, with sentence n. 7221 of the 24 February 2021, established that the mitigating circumstance of provocation cannot be configured if the criminal conduct is implemented as a reaction to an unjust act by others committed against a third party not linked to the agent by personal relationships such as to have to intervene in defense of this. In the present case, the Court ruled out the extenuating circumstance for the assault against a roommate of the compliant defendants.