Emanuele Nacci (IT)
Criminal Lawyer and Constitutionalist - Bari
THE ABROGATION OF THE ITALIAN LAW IDENTIFYING ILLICIT INFLUENCE (SUBJUGATION) AS A CRIMINAL OFFENCE:
Individual freedom: to what extent is it safeguarded?
Remarks, proposals – initiatives.
The penal norm identifying the illicit influence exerted by a subject on another individual has been ruled illegitimate and eliminated from the Penal Code by judgment no. 96 of June, 18 1981 of the Italian Constitutional Court, in the light of a clash between article no. 603 of the Penal Code identifying subjugation, and articles no. 21 and no. 25 of the Italian Constitution.
Article no. 603 stated as follows: “Whoever shall exert his or her power on another person so as to reduce them to a state of total subjugation shall be punished with 5 to 15 years of imprisonment.”
Hence, that put an end to the existence of a rule contained in the Rocco Code which, for almost fifty years had been neither tangibly nor frequently enforced.
That abrogative judgement confirmed the violation of the principles of typicality and definiteness which a norm must respected as provided for by Article no. 25 of the Constitution. In fact, the absence of such principles, which are peremptorily fundamental for the norm, leaves the identification of the real acts constituting an offence to the arbitrary evaluation by the judge.
The danger deriving from the discretionary power of the judge dilates the facts in the light of the state of total subjugation deriving from illicit influence by assimilating it to conditions of psychological subordination considered as fully licit and therefore accepted by the penal system.
Moreover, also the proselytism of religious, political or other origin shall not be ruled out. The full term of psychic subjection surely did not help add further clarity to the abrogated norm, on the contrary, it made it even more confused and inapplicable. As for the clash with Article no. 21 of the Italian Constitution, the abrogated norm did not provide for any safeguard of the freedom to express one’s thought or of the freedom to free choice and initiative and faced a limit in the interest of the psychic integrity of the individual when it became a means of violent or subtle pressure through the subjection to someone else’s will achieved through mental manipulation models and practises.
The problem we face is more relevant and serious than ever, as subjugation and its accompanying mechanisms are still a reality in the frame of interpersonal relationships. Real dangers are present in the field of individual freedom and particularly in that of the safeguard of individual identity.
The aim is not much that of ensuring individual freedom, notwithstanding its fundamental and indissoluble character, but more that of avoiding the unlawful and subjugating power of an individual clash against the public power or, in more concrete terms, against ideology and common morals.
As I said before, the problem is really serious, it deserves our attention and that of the social monitoring system; it every day represents a subversive application of the right to build relationships with other people and it would turn into an even more serious issue if not given the right attention.
The gap which has formed inside the Italian penal system has, on the one hand given birth to the conviction, among the general public and public opinion, that the subjugation crime no longer exists if ever it did, while on the other hand it has managed to persuade those who subjugate and manipulate other people’s minds to persist in their perverted and unlawful behaviours with the certainty that they are running no risks and will never be criminally prosecuted.
The devastating effects are to be sensed in the spreading, in Italy and I suppose in other countries too, of activities which are dangerous for the individual and for the entire society, carried out by single, evil, disguised individuals, and also by pseudo-religious practises which, with their persuasive and mainly suggestive attitudes diminish and/or totally eliminate individual defences thus strongly influencing the will of the people who get involved.
These are tools which by now are verified, consolidated, and understood and represent the clear relationship of prevalence of the subjugating subject on the subjugated one. They eventually lead to the total alienation and subjugation of the offended person falling victim of the vicious influence by the wicked subjects.
The individuals are deprived of their personal and individual freedom, they lose self determination, do not legitimate their own choices, their brains are emptied till they become of unsound mind; they become ill, and little by little they go and subjugate others, assume an obnoxious and unlawful behaviour which they would have never even contemplated to adopt.
What can nowadays be said on the safeguard of personal freedom? Or better, to what extent is the individual protected nowadays? I dare say there is hardly any safeguard here. Instead, our meeting must reach the object of stimulating the relevant State bodies and the sleeping authorities to safeguard the human being and his/her freedoms. The status-libertatis must be guaranteed as the complex of free choice and the punishment of all those behaviours resulting into a De Iure or De Facto reification of the people and therefore into a substantial annihilation of the personality.
The personal freedom provided for in Article no. 13 of the Italian Constitution is, as we all know, one of the fundamental and inviolable freedoms. Its safeguard comes before and influences all other civil and political liberties; furthermore aggressions directed against the status-libertatis deny the centrality of the human being.
Subjugating persons are facilitated in their behaviours by the incapability of the judicial interventions which do not have normative instruments at their disposal, able to tangibly identify subjugation and be therefore incriminate subjects perpetrating it.
These are free to make as many victims as they wish, thus suffocating freedoms provided for in the Italian Constitution. Victims turn into slaves! In this regard the European Parliament has repeatedly expressed its recommendations, showing sensitivity towards the diffusion of the sectarian phenomenon and of subjugating persons; it has called for the European Governments to be vigilant and provide the appropriate tools to eradicate such plague.
I believe I am also speaking your mind, as you surely are disappointed about the defective approach of our Governments and their inaction. I am also convinced that the condition of a free human being subjugated by someone else’s will can be compared to enslavement.
There is not time to waste; we should require even tougher legislative actions; launch popular initiatives, quick and effective petitions. Tools able to, in my view, eradicate and eliminate such behaviours which are destroying our liberties and frustrating our individual choices.
From this point of view the European Convention signed in Geneva in 1956, additional to others, helps us. By collecting the structure of previous, non-enforced conventions, it provided a remarkable contribution to the definition of subjugating behaviours and made it possible to consider them tantamount to conditions of slavery.
I am also aware that this analogy cannot be applied to the penal field, however, the contents of the Convention stress that the slavery we are talking about is not De Iure but instead De Facto.
The convention reasserted the link to the principle of the imperative character of the penal norm; it provided a detailed list of cases, among which, the most specific one included the practises comparable to the reduction to slavery into the category of subjugation, therefore offering a substantial aid in the identification of the appropriate penal norm to fill the existing gap.
The convention reaches the conclusion that De-facto conditions, notwithstanding the lack of written rules, can be compared to situations which can, on the basis of praxis, traditions, and environmental factors reduce a person at someone else’s full and exclusive service, thus assuming a total alienation of the intimate will.
Such interpretation was definitely endorsed by the United Penal Sections of the Supreme Court of Italy which, through its resolution no. 261 of 1997 confirmed the existence of conditions comparable to slavery which can occur not only in situations De Iure but also in any situation De Facto, so as to identify the exclusive subjection to someone else’s will equal to that of the slave to his master.
Such jurisprudential clarity would further help judges incriminate more reliably and with more certainty, the behaviours of these subjects who, by taking over the psychological and physical health of the subjugated victims, destroy and annihilate human being and get off uncharged.
It is therefore our duty to say “stop” to these suffocations, this slavery; let us induce our Authorities, through initiatives and proposals, to draw up laws to safeguard individual liberties; let us submit draft bills to fill the normative gap.
By doing so, judges will have appropriate juridical tools at their disposal to incriminate those subjects who are still spreading subjugating activities, practising manipulation of other people’s minds, and who keep on getting off unpunished.
From here rises our invitation to the relevant authorities to avoid the existing ambiguities and the evasion of their duties and set tools for the safeguard of personal freedom.
Today, with our commitment and contribution we must fling windows onto the outer world wide open; let warmth, love, hope into the homes in particular of those families who are in anguish and pain owing to the loss of their sons and daughters who are still subjugated and subject to conditioning and psychological manipulation and let the certainty of them being still loved reach their souls.
Preliminary Remarks on the legislative Proposal
It would be appropriate to discuss and deepen a number of aspects to be found in the decision by the Supreme Court as they are useful for the proposal of the new criminal norm. At the basis of the identification of criminal facts the principles of peremptoriness, precision, and definiteness must be considered, which must accompany penal norms with the aim of avoiding arbitrary power in the enforcement of measures which limit the individual freedom and, secondly, granting judges the possibility to act as legislators.
The penal norm must therefore concretely identify the criminal act presenting specific features and easily identifiable parameters, with the consequence of issuing an ultimate judgement determining the correspondence of the illicit fact with the sanction applicable. Specific parameters are needed to identify illicit practises and modus operandi which can be directly linked to the penal norm.
If this is not the case, then the concept of the causal relation between the fact and the behaviour of the subject is not applicable. Nowadays it is therefore compulsory for the legislator to draft conceptually precise and clear norms with intelligible words referring to facts traceable in reality.
The abrogative Article no. 603 is a clear example of an imprecise norm, to which an objective, rational, and consistent content could not be attached, for it did not identify a real psychological dependence of a human being on another. We must avoid that such conditions of non-applicability feature in the new norm. In this regard I have taken the liberty to elaborate a draft of a legislative proposal which I would like to submit to your attention.
Draft of a legislative Proposal
As expert of the Italian Penal Law I would suggest this research, leaving room for possible suggestions and amendments, to fill the existing gap. I would add Article 600 octies (psychological manipulation) to Title XII, Indent II, section I of Book II of the Penal Code, with the following content:
1) Unless the fact constitutes a more serious offence, whoever shall, through violence, threats, suggestions, or any other means, manipulate, condition, and suppress someone else’s autonomy or determination until reducing them to such a state in which individual freedom is excluded or so greatly reduced to the extent that the person is subject to the exclusive will of the perpetrator, shall be punished with 4 to 10 years of imprisonment;
2) Whenever the fact is committed inside a group promoting the activities indicated in paragraph one, with the aim of establishing or exploiting psychological or physical dependence of the people participation also when voluntarily, the punishment indicated in paragraph one shall be considered increased by one third;
3) Shall the facts indicated in paragraphs 1 and 2 be committed to the detriment of people under 18 years of age or people of unsound mind, also when such condition is temporary, the punishment shall not be less than 10 years.
Therefore the resulting penal norm would have the following requisites:
1) Offence whose perpetration is determined by the occurrence of the criminal event in which the identification of tangible conditions which may be included into the definition is left to the judge who is not bound to the verification of specific executive ways of conduct, or of specific material features, but has the only duty of verifying that the event is amenable to those acts and practises which are appropriate and not ambiguous with regard to the incriminating behaviour;
2) Necessarily purposeful Offence;
3) Possibly collective Offence;
4) Specific intent Offence;
5) Attempt may also constitute an offence;
6) Damaging Offence as it postulates the actual establishment of a servile state of subjection;
7) As for committing, it shall be included into the voluntary termination of the practises keeping the person into a state of subjection.
Criminal Lawyer and Constitutionalist