Objective conditions of punishment – Wikipedia

The Objective conditions of punishment , in the Italian penal code, are contemplated by articles 44 and 158 co. 2:

• art. 44 Criminal Code: When, for the punishment of the crime, the law requires the occurrence of a condition, the culprit responds to the crime, even if the event, on which the occurrence of the condition depends, is not wanted by him ;
• art. 158, co. 2 Criminal Code: When the law makes the punishment of the crime depend on the occurrence of a condition, the end of the prescription starts from the day when the condition occurred. Nonetheless, in the crimes pursuable to lawsuit, request or request, the end of the prescription starts from the day of the crime clerk .

According to part of the doctrine, the objective conditions of punishment must refer to an event unrelated to the illegal action, the occurrence of which is necessary for the punishment of the crime, in the key of criminal policy, but not for its existence; On the other hand, the events that pertain to the offense of the protected asset and that concentrate in themselves the offensiveness of the fact and the very reason for the incrimination, must be considered not already conditions of punishment, but constitutive elements of the crime without which the fact would be missing of the typical offense. For the principle of personality of criminal liability, therefore, they must be covered by willful misconduct or guilt, that is, to be foreseen and desired by the agent, if the crime is malicious, or predictable and avoidable, if the crime is culpable. This doctrinal vein thus reduces the set of objective conditions of punishment to the so -called extrinsic conditions; The doctrine that, on the other hand, does not believe that the punishment conditions will centralize the offensive scope of the crime, distinguish between extrinsic conditions and intrinsic conditions, which pertain to the sphere of the offense gained to the criminally protected asset.

In the latter hypothesis, however, a problem of compatibility with the principle of personality of criminal liability that the Constitutional Court with the sentences n. 364 and 1085 of 1988, has raised in the beginning of constitutional rank: in relation to the individual elements that contribute to mark the objective disvalue of the type, indeed, the reproach of the author of the fact must be recognized so that he can end for his personal criminal liability; Only the elements unrelated to the matter of the prohibition (such as the extrinsic conditions of punishment which, by narrowing the area of ​​the ban, condition, in fact, the latter or the sanction in the presence of certain objective elements) escape the rule of reproach ex art. 27, first paragraph, cost.

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