Provision of Article 612 bis of the Penal Code

Unless the act constitutes a more serious crime, anyone who, through repeated conduct, threatens or harasses someone in a way that causes a persistent and severe state of anxiety or fear, or generates a well-founded fear for their own safety or that of a close relative or a person with whom they have an emotional relationship, or forces them to alter their lifestyle, is punished with imprisonment from six months to five years

The penalty is increased if the act is committed by the spouse, even if separated or divorced, or by a person who is or has been in an emotional relationship with the victim, or if the act is committed through computer or telematic means.

The penalty is increased by up to half if the act is committed against a minor, a pregnant woman, or a person with a disability as defined in Article 3 of Law No. 104 of February 5, 1992, or with weapons or by a disguised person.

The crime is punishable upon complaint by the injured party. The deadline for filing the complaint is six months. The withdrawal of the complaint can only be procedural. The complaint is nonetheless irrevocable if the act was committed through repeated threats as per Article 612, second paragraph. However, proceedings are initiated ex officio if the act is committed against a minor or a person with a disability as per Article 3 of Law No. 104 of February 5, 1992, as well as when the act is connected with another crime for which proceedings must be initiated ex officio


In-depth analysis

Article 612 bis represents one of the most significant innovations introduced with the Decree Law of February 23, 2009, no. 11, containing «Urgent measures on public safety and combating sexual violence, as well as on the subject of stalking».
The new crime of “stalking” or acts of persecution criminalizes those repeated acts of harassment or threat that cause significant psychological distress to the victim.

With the aforementioned regulatory provision, as well as with the recent Law of July 19, 2019, No. 69 (containing "Amendments to the Criminal Code, the Code of Criminal Procedure and other provisions regarding the protection of victims of domestic and gender-based violence") called "Codice Rosso", the Legislator aimed to provide an appropriate punitive response to behaviors that, until now, were classified under the less serious crimes of threat, private violence, or the offense of harassment (art. 660 c.p.). These cases have often proven inadequate to provide adequate protection against behaviors that present a greater degree of severity, both due to the repetition of stalking acts and their negative impact on the victim's private and family sphere.

For the existence of the crime the repetition of the criminal conduct is necessary, represented by threats and/or harassment.
According to the now established doctrinal and jurisprudential interpretation, a threat is understood as the prospect of a future and imminent harm, while harassment is any activity that painfully or annoyingly disrupts the normal psycho-physical balance of an individual.
The crime remains, however, of a free form, given that both threats and harassment can be carried out in a variety of forms capable of producing, in the first case, a coercive effect on the victim's psychic freedom and, in the second case, an unwanted intrusion into their individual sphere.

As for the regime of prosecutability, the crime is punished, as a rule, upon complaint by the injured party.
The term for filing a complaint is six months, corresponding to that provided by art. 609 septies of the penal code for sexual violence offenses. The rationale is similar and is found in the protection of the injured party, considering the inner turmoil experienced by those who have to report and make public behaviors that severely harm their private sphere, often perpetrated by individuals close to the victim.

Precisely from this perspective, the provision for a warning procedure is also explained, which the victim can resort to before filing a possible complaint. Article 8 of Law No. 38 of April 23, 2009, provides that the victim of stalking reports the facts to the Public Security Authority, making a request to the Chief of Police for a warning against the perpetrator of the conduct. The Chief of Police, after gathering the necessary information, if he deems the request justified, may warn the perpetrator of the stalking, urging them to behave in accordance with the law.
The warning procedure leads to important consequences in terms of sanctions: if the warned individual persists in their persecutory conduct, they will face an increased penalty for the crime under Article 612 bis of the Penal Code, which will then become prosecutable ex officio. In particular, the new Article 282 ter of the Code of Criminal Procedure has been introduced, titled "Prohibition of approaching places frequented by the victim."

The Legal Institute of Warning

It is an Administrative Measure, introduced into our legal system with D.L. February 23, 2009, no. 11, which constitutes a valid alternative to criminal complaint or warning by a lawyer and can be exercised by the Chief of Police, against an individual perpetrator of stalking acts (art. 612-bis c.p.), at the request of the offended person.
The warning institution proves to be a preventive measure of an administrative nature with high effectiveness, as it allows the direct intervention of a Public Authority, the Chief of Police, without having to wait for the lengthy timelines of the judicial process.
Through the warning against a person accused of having committed the crime of stalking acts (art. 612-bis), the Chief of Police invites them to behave in accordance with the law and cease the stalking behaviors.
In the event that the individual should repeat the unlawful conduct after the warning, the code provides for the initiation of criminal proceedings ex officio with aggravating circumstances.


WHAT THE INVESTIGATIVE INSTITUTE CAN DO

The actions that an Investigative Institute conducts regarding the crime of persecutory acts (art. 612-bis c.p.), more commonly "stalking", within the scope of what is provided by art. 391 of the c.p.p. are:

  • the search for and collection of evidence to be used in court, both against and in favor of the suspect/defendant;
  • the search for relevant information (including deleted) for procedural purposes, from telephone devices and computers;
  • the forensic acquisition of posts on social networks or websites
  • the identification of users of fake social profiles


THE RESEARCH AND COLLECTION OF EVIDENCE TO BE USED IN COURT

The Private Investigator proceeds to the acquisition of evidence, necessary for procedural purposes, through the documentation of the various actions suffered by the victim of the crime of "stalking."

The documentation of conduct suitable to integrate the offense in question occurs through photos or videos, for example, of the constant presence of the offender near the victim's residence or the damage to a property or vehicle.

Among the actions that the investigative institute undertakes, in cases where the identity is unknown, there is also the identification of the individual who committed the crime.

THE SEARCH FOR RELEVANT INFORMATION FROM CLIENT-OWNED PHONES OR COMPUTERS

For procedural purposes, the Investigative Institute proceeds with the search for information, including deleted data, from telephone devices and computers through specialized technical consultants.

The information retrieval activity takes place through a forensic acquisition of the evidence to be used in court.

The research aims to identify photos, videos, recordings, or text messages with insulting, defamatory, or sexual content on any device owned by the victim, sent by a person guilty of the crime of stalking (art. 612-bis c.p.)

The forensic acquisition of posts on social networks or websites

The victim of the crime of stalking (art. 612-bis c.p.) must be able to acquire information through forensic methodology in order to use documentation related to posts on various social networks or websites in court.

The Investigative Institute provides this service to protect the victim of stalking through technical consultants specialized in digital forensics, who produce forensic computer copies of posts or websites, usable in court.
The crystallization of the post on social networks through forensic acquisition is essential, as often the authors of these proceed to delete them shortly after, thus thinking they can eliminate all traces of the offense online.

Identification of Fake Social Media Profile Users

Creating a fake social profile can result in the commission of certain crimes for the person responsible for such an initiative.

Based on the circumstances of the case, the subject guilty of creating a so-called "fake" profile incurs the crime of stalking (art. 612-bis c.p), if such a social profile is used to repeat stalking behaviors, such as continuous intimidating, defamatory, or sexually themed messages, towards another subject.
Another possible crime in the aforementioned cases is impersonation (art. 494 c.p.).
The Investigative Institute proceeds with technical and investigative tools to identify the perpetrator.