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The stalking crime

Milan stalking lawyer: criminal lawyer for stalking, also defense of minors in the juvenile criminal trial.

The crime of persecutory acts pursuant to art. 612 bis of the Criminal Code (so-called Stalking)

The first paragraph of art. 612 bis of the Italian Criminal Code that "unless the offense constitutes a more serious offense, anyone, with repeated conduct, threatens or harasses someone in order to cause a persistent and serious state of anxiety or fear or to generate the well-founded fear of one's own safety or that of a close relative or of a person linked to it by an emotional relationship or by forcing the same to alter one's life habits "

With this new incriminating form, the Legislator, in 2009, intended to attribute autonomous criminal relevance to those behaviors repeated by means of which the attacker realizes an effective unwanted, or incisive, "intrusion" into the victim's private sphere, which causes a considerable disturbance to the victim.

Commonly included in the cd. stalking crime extremely heterogeneous conduct: ranging from unsolicited communications, of various types, intended directly for the victim or for people in his / her family, work environment, etc .; meetings, the result of stalking or stalking or any behavior deemed by the victim "harassing" and detrimental to his personal freedom.

Mind you, these possible manifestations are all united by the lack of violence on the victim.

However, it should be noted that although not violent, such conduct often precedes, chronologically, the occurrence of a real aggression, corresponding in penal terms, in most cases, in the crimes of beatings, private violence, personal injury or sexual violence.

Article. 612 bis of the Criminal Code was included in the penal code by art. 7 of Legislative Decree 23 of 2009 February 11, converted with amendments by Law no. 23 of 2009 April 38.

Even the original maximum edict limit has been increased from four to five years in prison since Legislative Decree 78/2013 converted with modification. by law 94 of 2013.

As we anticipated the criminal case of 2009, in the intentions of the Legislator, it was aimed at striking the behaviors that were harmful to the moral freedom of the offended person or to the freedom of self-determination of the subject.

These behaviors are then enriched with a further negative value, so to speak potential, due to their repeated nature; they are therefore identifiable as prodromal acts of a scalar process, likely to lead to manifestations of violence and in extreme cases in homicidal episodes.

Probably the will underlying the drafting of this imputation is precisely that preventive.

For a large part of the doctrine it was a purely symbolic choice, aimed at aggregating political consensus, demonstrating a "strong" response from the legal system to a socially alarming phenomenon.

However, it should be noted that the alleged "void of protection" that art. 612 bis would have gone to fill it was already "covered" at least by the cases referred to in Articles 612 criminal code (threat) and 660 criminal code (harassment or disturbance of the person) and in some cases by private violence pursuant to art. 610 cp

Again with a view to prevention, especially of the violent outcomes in which it could lead, the tools introduced or strengthened in 2009 are more appropriately highlighted, namely: the warning of the questore (art. 8 of legislative decree 11/2009); the prohibition to approach the places frequented by the victim (art. 9 dln 11/2009); the protection order of the civil judge (extended up to one year by art. 10 of legislative decree 11/2009).

In an apparently incidental way, the CD should also be mentioned. security decree that has extended the use of the electronic bracelet to the hypothesis of persecutory acts, as well as of mistreatment in the family, for the purpose of checking the actual removal from the family home of the subject (art.16 of Legislative Decree no.4 of 2018 October 113) .

Over the years, in addition to a legislative report, interventions in the context of political-social strategies, education and awareness campaigns, the establishment of victim help and support centers, as well as of listening or social / health assistance to potential authors.

These are measures strongly advocated by the 2011 Istanbul Convention against violence against women and domestic violence.

It is also worth mentioning that it includes stalking among the behaviors for which the acceding States have the right to opt for non-criminal sanctions, in derogation from the general prohibition to make reservations to the treaty, adopting declarations which exclude the application or allow an limited implementation of its provisions (Article 78 of the Convention)

Certainly a problematic resolution appears to be the question of the identification, in concrete terms, of the offending conduct, which, as already mentioned, consists in repeatedly threatening or harassing someone. Well the notion of threat, deriving from the interpretation of art. 612 of the Italian Criminal Code is commonly referred to the prospect of an unjust evil dependent on the agent while compared to the possibility of referring to the meaning of the harassing conduct in the application experience of art. 660 of the Italian Criminal Code, it should be noted that, while in the latter case harassment appears as an event, in art. 612 bis, it constitutes one of the two typical behaviors considered as an alternative. However, this is a behavior that cannot be separated from the effect produced on the victim, however highly indeterminate.

Furthermore, the same qualification of the crime as a crime of event or mere conduct, or of danger, was questioned since, according to a systematic reading of the norm, the conduct of harassment and threats must be carried out in such a way as to - alternatively - cause a persistent and serious state of anxiety or fear; to generate the well-founded fear of one's own safety or that of a close relative or of a person linked to it by an emotional relationship or to compel the same to alter one's life habits.

The formula used, in itself, does not clarify whether the consequences indicated must actually occur or the mere suitability of the conduct put in place by the so-called is sufficient. Stalker to produce them.

It was the jurisprudential practice that required the realization of one of the three events indicated by the standard.

The Court dealt with other profiles, such as for the reiteration of the conduct, which clarified that it consisted of at least two conduct of threats or harassment, which are the cause of one of the three alternative events of the case; without, however, dissolving the doubt on the period of time within which these behaviors must occur.

Il "Persistent and serious state of anxiety and fear" e "The well-founded fear of safety" in the Court's opinion, they can also occur in the absence of a medically ascertainable pathology and must result "from the observation of signs and behavioral clues that denote an appreciable destabilization of the victim's serenity and psychological balance" with the exclusion of the criminal relevance of anxieties of "Poor moment" or of "completely imaginary or imaginative fears of the victim".

The special aggravating circumstances provided for in the second and third paragraphs of art. 612 bis of the criminal code

The second paragraph originally provided for an increase in the penalty in the event that the fact had been committed by the legally separated or divorced spouse or by a person who had been linked in the past by an emotional relationship to the offended person. The facts committed in the context of marital or sentimental relationships still in progress were excluded.

With the dl 14 August 2013 n.93, converted into l. 15 of 2013 October 119, known to most as the law on femicide, the aggravating circumstance has also been extended to the latter hypotheses, therefore destined to operate even if "The fact is committed by the spouse".

However, the result appears disharmonious and potentially capable of creating quite a few difficulties in applying the law in relation to the one on mistreatment in the family (art. 572 of the Italian Criminal Code), embracing the same very similar cases.

The 2013 reform also expanded the second paragraph of art. 612 bis with the provision of the cd. cyberstalking or the illegal act committed by means of IT or telematic tools.

This choice to punish such conduct more severely could be traced considering the possibility of a greater spread of threats and / or harassment and the ease of reaching the designated victim.

The third paragraph instead provides “The penalty is increased up to half if the offense is committed to the detriment of a minor, a pregnant woman or a person with disabilities as per art. 3 of Law No. 5 of 1992 February 104 or with weapons or by a misrepresented person ". It should be remembered that another aggravating effect with common effect, pursuant to art. 8 of dln 11/2009 if the fact is committed by a subject already admonished.

Regarding the prosecution, this offense is punished in the complaint of the offended person, to be proposed within six months, without prejudice to the prosecution of the office if the offense is committed against a minor or a person with disabilities pursuant to art. 3 of Law 5 of 1992 February 104, as well as when the fact is connected with another crime for which it is necessary to proceed ex officio.

Legislative Decree 93/2013, already referred to several times, also introduced the irrevocability of the lawsuit in the case of stalking committed through repeated threats in the ways referred to in the second paragraph of art. 612 bis of the criminal code

It should also be noted that the author is unable to reach an absolute ruling pursuant to art. 131 bis cpp or due to the particular tenuousness of the fact since, as already clarified by the Court of Cassation with sentence 14845/2017, this cause of exclusion of punishment cannot be applied to crimes integrated by multiple, habitual and repeated conduct, which undoubtedly includes the one pursuant to art. 612 bis cp

Lastly, we recall the judgment of the Court of Cassation, fifth section, ruling of 11 June 2018 n. 26595, which provided an important food for thought by clarifying the relationship that exists between bullying and stalking, confirming the sentencing of two minors who harassed a classmate throughout the school year, producing in the victim such a state of anxiety and fear for his own physical safety, that he was forced to interrupt school attendance.

In the matter, the Catania Juvenile Court first and then the territorial Court of Appeal had condemned the two authors in relation to the crimes of aggravated personal injuries, beatings and persecutory acts, an interpretation considered the latter to be fully acceptable by the Ermine, who stressed that the plurality of harassing conduct would have resulted in an evident alteration of the living conditions of the minor, fully integrating the incriminating case referred to in art. 612 bis of the criminal code


You can contact the Cecatiello law firm for the best assistance in cases of stalking, threats, bullying.


Law Firm Cecatiello Lawyer, Milan. Civil and criminal lawyer, specialized in family law, children's rights, juvenile penalties. Contact us.