Comprised of Messrs:
Chairman - Atty. Leonetto AMADEI
Judge - Dr. Giulio GIONFRIDA
Judge - Prof. Edoardo VOLTERRA
Judge - Dr. Michele ROSSANO
Judge - Prof. Antonino DE STEFANO
Judge - Prof. Leopoldo ELIA
Judge - Prof. Guglielmo ROEHRSSEN
Judge - Avv. Oronzo REALE
Judge - Dr. Brunetto BUCCIARELLI DUCCI
Judge - Atty. Alberto MALAGUGINI
Judge - Prof. Livio PALADIN
Judge - Dr. Arnaldo MACCARONE
Judge - Prof. Antonio LA PERGOLA
Judge - Prof. Virgilio ANDRIOLI
Judge - Prof. Giuseppe FERRARI
has issued the following
in the adjudication as to the Constitutional legitimacy of Art. 603, Penal Code (plagium [translator’s note: the Italian word “plagio” has two distinct meanings, see below. To avoid confusion, the Latin root word ‘plagium’ has been used throughout the text; it is followed by (Latin) when it is in Latin context, i.e. not translated]), as set forth by the Investigative Judge of the Rome Court in his ruling of November 2, 1978, in the penal proceeding against Emilio Grass, such ruling having been entered at no. 638 of the Ledger of Rulings of 1978 and made public in the Republic’s Official Gazzette issue 52 of February 21, 1979.
Having reviewed the trial papers filed by Emilio Grasso and by civil parties Maria Pellante and Luisa Cerocchi, as well as the intervention deed filed by the Prime Minister;
having heard the reporting Judge Edoardo Volterra during the public hearing of March 4, 1981;
having heard Attorney Mauro Mellini on behalf of Mr. Emilio Grasso, Attorney Giovanni Maria Flick on behalf of Mrs. Pallante and Mrs. Cerocchi, as well as State’s Attorney Franco Chiarotti, on behalf of the Prime Minister.
Considerations of Law:
l. The Judge in the case sets forth a case of Constitutional Legitimacy over Art. 603, Penal Code, based on two separate grounds:
a) the provision in point is allegedly in conflict with art. 25, 2nd para, of the Constitution, since it lacks the prerequisite of specialness, which, consistently with the principle that penal matters can only be regulated by Penal Law, “requires a precise relationship of correspondence between the abstract occurrence and the actual occurrence”;
b) the same provision would allegedly violate art. 21, 1st para, of the Constitution, especially where its effects “exceed the function of protecting the physical integrity of the person when confronted with aggressions that may take place.
2. Through the first objection as above, the Judge in the case denounces a violation of the principle of Definiteness of the criminal occurrence, that is part of the principle that “penal matters can only be regulated by Penal Law”
With reference to art. 25 of the Constitution, this Court has many times repeated that the ground for the above principle consists first of all of the intention to prevent arbitrary violations in the application of such measures which bring about a limitation of that ultimate and inviolable asset represented by personal freedom. Therefore, this Court considers that, in force of such principle, it is the task of Penal Law to describe the criminal occurrence with such precise descriptions that those who are supposed to interpret it can, by encompassing an actual occurrence within the law provision, reach a conclusion of correspondence which is supported by verifiable foundation. Such a task requires that an intelligible description of the abstract occurrence be provided, be it through the use of either indicative expressions or value expressions (cfr., e.g., decisions 21/1961 and 191/1970); and the task is fulfilled so long as the penal provisions contain a reference to occurrences of which the probability of taking place has been ascertained through such criteria as are apparently verifiable in view of current knowledge. One further, implicit extension of the concepts that this judicial body has adopted, implies that, in case where such an ascertainment is lacking, the use of intelligible expressions is no longer suitable to fulfill the task of determining the occurrence in such a way as to assure a correspondence between the actual fact that brings about a specific violation of Law and the relevant abstract pattern. Any adjudication as to the correspondence of the actual fact to law provisions of this type would involve an a priori choice (therefore an arbitrary one) concerning the realization of the event or the causation relationship between the event and the actions that were intended to bring it about, a choice that would be similar to the one made by the legislative body concerning the existence of the actual occurrence and the possibility that it be verified. Therefore in the very wording of art. 25, which expressly demands the legislator to formulate provisions that are conceptually precise under a semantic viewpoint of clarity and intelligibility of the words used it must also be considered logically implicit that there is a task to formulate hypotheses expressing occurrences which correspond with actuality.
Indeed it would be absurd to think that one could consider such provisions to have been made as consistent with the principle of Definiteness of Law which, although conceptually intelligible, do represent situations of behaviors that are unreal or imaginary, or that are however not likely to occur; it is even less possible to conceive of such law provisions which inhibit or regulate or punish such facts as one cannot possibly consider to exist or cannot rationally ascertain. The formulation of this type of provisions would overturn the most commonplace principles which rationally rule over any Law System, as well as the most elementary notions and teachings encompassing the creation and the shaping of law provisions
From the above premise, there follows that a full description of a criminal occurrence is not sufficient to assert the Constitutional legitimacy of a law provision which, by reason of its structure and of its abstract formulation, leaves no room for rational, practical application thereof.
The question of Constitutional legitimacy of art. 603 raised by the Judge in this case, with reference to art. 25 of the Constitution, can be said to be pivoting on the intelligibility of the provision on the one hand, and on the other hand on investigating the fact that the occurrence alleged by the legislator can be actually ascertained by those who interpret the law, on the basis of such criteria that are rationally admissible as per the current state of science and experience.
3. In reviewing the question as presented above, one must first of all proceed to isolate the criminal occurrence that art. 603 designates by the specific term of “plagium”, thus differentiating the other occurrences provided for in the third section of Book Two of the Penal Code (crimes against individual freedom), and try to determine in its precise juridical import the exact, current lexical meaning of the word, while keeping in mind that it has been used for two millennia to express different criminal facts.
Historical investigation has made fully clear that, as was already pointed out by Latin writers, plagium [Latin] comes from Greek, and has been used in juridical language maybe since the 3rd century B.C. to designate the action of taking possession, holding or making the object of trade of a free man or someone else’s slave.
Martial, in his famous epigram 52, uses the word in a figurative meaning, making a comparison between the false attribution of someone else’s literary works and the unlawful enslaving of someone else’s slaves to one’s service, thus giving birth to an additional meaning that still lives in modern languages (see Italian “plagio”, French “plagiat”, English “plagiarism”, German “Plagiat”), describing the action of making others believe one is the author of the products of someone else’s intellect, and the action of copying them fraudulently. This crime is called, in common language, plagium, namely literary plagium. Yet it is not called plagium in the Italian laws concerning the press (see articles 61 and 62 of Law no. 562 of March 18, 1996) as well as in various law systems abroad. With a number of authors and also in ancient laws the term is used of “political plagium”, to indicate the action of illegally enlisting someone against his will into foreign armies on land or at sea.
In Roman Law the isolation of a specific kind of crime thus making it distinct and separated from theft and other crimes, and encompassing within the definition of plagium some specific, well described occurrences was the work of Lex Fabia, by an unclear author, yet traceable around the end of the third and the beginning of the second century B.C., broadly quoted and commented by Roman scholars of law (Gaius, Ulpian, Paulus, Callistratus) and carefully investigated in recent Romanistic doctrine. In Paulus’ Sententiae, in the Collatio legum mosaicarum et ronlanarum, in the Theodosian Code, in the Codex Justinianus, in the Digesta, one title is dedicated to the law. The law included the case of someone who fraudulently kept hidden of chained a free man, whether ingenuus or libertum, or who made that man the object of trade, donation or barter, as well as the case where the crime was committed by a slave, either by his/her own initiative or with his/her master knowing the fact.
Another case for plagium [Latin] was when the same actions were made on someone else’s slave against his/her master’s will; it seems that such a crime included the action of someone who would induce the slave to escape from his/her master.
In Barbaric laws and in Medieval law sources, the word plagium [Latin] is repeatedly found to designate the action of someone who illegally forces another into slavery or who removes him/her against his/her will to another location and makes him/her the object of legal deeds; such crime used to be punished with very heavy penalties (see, i.e., chapter 78 of Theodoric’s Edict, sixth century). The Lex Visigothorum of the fifth and sixth centuries punished with heavy penalties both physical and monetary those free men and servants who committed plagium on free men or on someone else’s servants. The Lex Salica of the fifth and sixth centuries and the Lex Frisionum of the eighth century make the plagium of noblemen and free men equal to murder.
The very same legal, technical meaning of the words plagium [Latin], plagiator [Latin] and the verb plagiare [Latin] keeps holding on throughout the intermediate law system, as can be seen in the various lexicons and law reference books.
4. In ancient law systems and until the beginning of modern times, the crime of plagium was related to the juridical principle of slavery, meant as the state of a human creature who does not possess a juridical personality: the punishment of such crime in the various law systems is intended for the protection from external, illegal influence on the ownership right possessed by the masters of slaves, and was also meant to punish the action of turning a free man into a slave or into some such condition de facto.
Starting in the late eighteenth century, along with an increasing acceptance of the principle of equality of a person’s juridical condition, and with the resulting, progressive abolition of slavery (legally announced for the first time in 1791 in revolutionary France, revoked right afterwards, and ultimately established in 1848, by England in 1833, by the U.S. in 1863, and following these examples by many other Nations), with the international convention of Saint-Germain in 1919 by which slavery was declared illegal in all its forms, including forced labor, pseudo-adoption, forced concubinage, slavery out of debt and other de facto situations; with the international convention of Geneva in 1926 and 1956, the very notion of the crime of plagium has long since changed its meaning. This crime can no longer be described as a crime against one’s property of human beings, but it is exclusively conceived as a crime against individual freedom.
Italian law systems before National unification, except two, did not include provisions which specifically forbade slavery and the slave trade; they only included provisions for the punishment of those who would turn free men, and particularly children, into a condition of servants. So that the French Penal Code of February 22, 1810, which remained in force for many years in all the States that were under Napoleonic influence and dominance, although it did not use the word plagiat that was anyway well known in the legal profession set forth a punishment in articles 341 and 344 for illegal arrest and kidnapping, and in articles 345-355 the kidnapping, the removal, the substitution of minors with others, the false attribution of motherhood, the illegal transfer of minors, as well as the placement and illegal abandonment in an institution of a child under 7.
Also, the “Code for the Kingdom of the Two Sicilies” of May 21, 1819, effective September 1st of the same year, without expressly mentioning plagium, lists several crimes related to enslaving another. Article 119 addresses piracy against nationals of the Kingdom. Articles 403 and 405 address the abandonment of children under 7 and their illegal abandonment in an institution. Also, the regulation on crimes and penalties for the Papal State of September 20, 1932, effective on November 1st, at article 126, provides for heavy penalties for the hiring and enlisting of Papal subjects in order to place them at the military service of foreign Princes; and at articles 305, 309 the abandonment, hiding, substitution of a child, as well as pretending to have delivered a child: all of which are not designated as crimes of plagium.
The unauthorized, forced enlisting of a subject to have him serve in a foreign army is also covered by article 112 of the Penal Code for the States of Parma, Piacenza and Guastalla of November 5, 1820, effective on January 1, 1821, as well as by article 129 no. 4 of Criminal Code for Este States of December 14, 1855, effective May 1, 1856. The first of these Codes punishes at article 390 the abandonment of children under 7. Both of these, as well as the Penal Code of the States, by H.M. the King of Sardinia of November 29, 1859, effective May 1, 1860, do not use the word plagium. Instead, the crime of turning one in a condition similar to slavery is expressly provided for (but without using the German word Menschenraub and its equivalent Plagium[Latin]) in the new edition to the Penal Code for the Empire of Austria of September 3, 1803, published on May 27, 1852 which, in its first part, section nine, under the heading “of public violence”, carried out “by treating a person like slavery proper” at sheet 95 (tenth case) establishes an essential principle for the juridical state of the person, by stating that it shall not be tolerated “within the Empire of Austria the practice of slavery, nor the exercise of an ownership connected to it”, and that “any slave shall become free the moment he/she sets foot on the imperial territory of Austria, or even just on an Austrian ship; likewise, his/her freedom shall be also acquired in a foreign Country in case he/she is, for whatever reason, transferred as a slave to a subject of the Austrian Empire”. The same sheet 95 provides for the heavy penalty of 10 to 20 years of hard prison for trafficking in slavery.
The same Code, at sheet 90, provides for a penalty on those who “without the legitimate authority knowing and approving, shrewdly and forcefully brings another under his/her power, so as to deliver him/her to a foreign force against his/her will”, while sheets 92 and 93 provide for heavy penalties for the unauthorized hiring and the unauthorized restriction of personal freedom.
5. Amongst the law systems of pre-Union Italy, only one the Penal Code of the Grand Duchy of Tuscany of June 20, 1853, effective September 1st of the same year uses the word “plagium” in a specific, juridical meaning at article 358 placed under Section Two, First Paragraph, “Of Crimes Against Individual Freedom and Private Tranquility and the Honorability of Another”. “p 1. He who, for whatever Purpose, whereas because of such purpose the fact does not fall under the heading of a different crime, has illegally taken possession of a person against his/her will, or even of a willing person under the age of 14, shall be deemed guilty of plagium, and put in prison for three to seven years, or, in milder cases, for one to three years. And where the plagiarist has delivered such person of whom he/she took possession to serve for a foreign military service or navy, or has turned him/her into a slave, he/she shall be punished with prison for five to twelve years.”
The word “plagium” is again found in the same Code at article 119 p. 1. “He who, aside from the case of plagium, and without Government permission, enlists one or more Tuscans under the flags of another State, which is not at war with Tuscany, shall be punished with prison for one to five years.”
In the subsequent article 359, the same penalty provided for at page 2 of the foregoing article is applied to anyone who “has arbitrarily removed from his/her parental authority a youth under 14 who is all but willing, so as to have him/her practice a different religion than the one he/she was born into”; this fact, in the opinion of Giuseppe Puccioni, one of the leading researchers of the Tuscan Code, should be considered as a crime similar to plagium.
The criminal occurrences included in this Code under the name of plagium are thoroughly explained in the commentaries written by Puccioni himself and by Francesco Carrara. According to the first, the characteristics of the crime of plagium, based on criminal science, are: “1) violation of the personal freedom of a man; 2) committed with violence or fraud on those who are Sui juris; with dissent on the part of the father or of the guardian on those who are alieni iuris subiecti; 3) the purpose to make profit … The Code … recognizes plagium in any and all purposes, except when the fact falls under the heading of a different crime”; he makes a distinction from the other crimes against individual freedom, particularly from the one provided for at article 360 (private incarceration), from illegal arrest, from kidnapping and from rape. “The French and Italian Codes”, notes Puccioni “confuse plagium with the crimes of arbitrary arrest and detention, of private incarceration, or of ransom; so we cannot find in them any positive information.
Carrara, while commenting on article 358 wrote: “… the notion of plagium according to the teachings of contemporary schools and of the best amongst law systems can be restricted to these words the violent and fraudulent abduction of a man for purposes of profit or revenge. Three are the essential criteria of this crime: 1) that a man get taken away; 2) that he/she be taken away through fraud or violence; 3) that he/she be taken away so as to make profit of him/her or to bring about revenge on him/her.” This notion by Carrara is still quoted and referred to in textbooks, and is also accepted in a number of court decisions in our days.
A review of former law systems in Italian States then, clearly shows how difficult it would be to extract from them a certain, clear-cut notion of the crime of plagium and the criteria to distinguish it amongst various crimes against personal freedom. Such a review though, leaves no doubt as to the fact that the criminal occurrence called plagium, as well as all such crimes provided for in the various codes as crimes against personal freedom, have always been conceived as being enacted exclusively through physical action by the perpetrator, and can always be identified through objective elements.
6. The first post-Union penal code of Italy, issued on November 22, 1888, effective June 30, 1889, in Book Two, Title Two, “of crimes against freedom”, Section Three under the heading “of crimes against individual freedom” provided at article 145: “He who turns another person into a slave or into any such condition shall be punished with twelve to twenty years in prison.” The crime described as “reduction into slavery o into any such condition” was named “plagium” in official records of the project and in various editions of the code. Its qualities were described in its contents through comparison with the other crimes against individual freedom that were included in the same section, namely by making a distinction from illegal deprivation of personal freedom (art. 146) which was listed in the official indices of the project as “kidnapping of a person committed by a private citizen”, from “kidnapping of a person committed by a public official” (art. 147), from removal or illegal holding for purposes of sex or marriage (articles 340 and 341), from subtraction from parents or guardians (or whoever has her in custody) of a girl under 15 with her consent (art. 148 classified as “subtraction of a minor”), from “arbitrary search on a person” (art. 149), from “harassment on a person who is in prison or who is arrested” (articles 150-152), from the “penalty for a public official engaging in private business” (art. 153), from “private violence” (art. 154), from “threats” (art. 156).
Therefore, the crime provided for at art. 145 of the Code of 1889 (plagium) required that an exclusively physical action should take place, the result of which was to place the victim in a material condition of dependency from someone else but without bringing about in the framework of the Italian law system, thanks to the principle contained in it that every human being has juridical freedom neither a loss for the victim of the juridical status of free man, nor a continuation of a juridical condition of someone who does not possess such status or who is in an even lower one. During the drafting of the Code project, this last consideration had led the Commission of the House of Representatives to a proposal that the provision of art. 141 be suppressed (which became art. 145 in the final text).
7. The Italian Penal Code of 1930 uses the word plagium in a totally new meaning, a meaning different than that of former Codes, particularly the Code of 1889, and even different than the original, ancient Code.
Whereas the Code of 1889 included at Title Two of Book Two the crimes against freedom, classifying them into six sections, of which the Third included crimes against individual freedom (articles 145-156), the new Code includes at Section Three of Book Two the crimes against individual freedom, separating them into 5 sections, the first three being: First of crimes against individual personality; Second of crimes against personal freedom, Third: of crimes against moral freedom.
The first section includes 5 articles (600-605). Art. 600 has the same wording as art. 145 of the former Code of 1889; this was, as already mention, classified under the name of “plagium” and exactly matches the text of the former: “He who reduces another into slavery or into any condition akin to slavery shall be punished with 5 to 15 years of prison”. (The only additions to the text of art. 145 of the Code of 1889 are the two words “into slavery” which redundantly enforce the adjective “akin”, and the length of the penalty which used to be 12 to 20 years in art. 145). In article 600 of the 1930 Code, the provision that was already part of art. 145 of the former Code is no longer called “plagium” but “reduction into slavery”. Follows art. 601 “trafficking and trading of slaves”, art. 602 “selling and buying of slaves” and art. 603, entitled “plagium”: “He who subjects another to his power, so as to reduce him/her in a state of complete subjugation, shall be punished with prison for 5 to 15 years.”
The section is closed by art. 604, entitled “crime committed abroad in damage of an Italian citizen”, which provides that the provisions of this section “are also in force when the fact is committed abroad in damage of an Italian citizen.”
8. What can be seen from the preliminary sessions to the Penal Code of 1930, is that the wording of what was to become article 603 (i.e., art. 612 of that project), the identification of the crime contained therein and the inclusion in the crimes against individual personality of a crime that was not listed in the Code of 1889 (and that was different than the one in art. 600 of the new Code and than art. 145 of the former code) had all been the object of extensive and complicated discussions between Committee members. The majority of the Parliamentary Commission members had stated that the ancient wording of “plagium” should be maintained for the reduction into slavery or into a similar condition, and had also stated their disagreement on the proposed addition of a new criminal occurrence that had been left out of former Codes, insisting that no changes be made to traditional descriptions.
The Committee members were thus exposing the danger that, by using very old words which they considered as lexically certain, consecrated by more that two thousand years in juridical language and experience to define new criminal instances as yet unknown, one would become confused about some basic juridical concepts and that potential imprecision would result. The same majority of members insisted on the inaccuracy of the provision thus proposed.
The same opinions were expressed by the King’s Commissions of attorneys and of prosecutors of Naples and Rome, as well as by the Court of Appeals of Naples, by stating that a specific crime called plagium that was different from slavery did not exist.
The opinion of the Parliamentary Commission members was put in writing in a specific Order of the Day voted and approved by a vast majority, which advised that articles 609 and 612 of the project (600 and 603 respectively of the Code) be united in one single article.
The Secretary of Justice, in his report accompanying the final project, did not take into any account the result of the vote and decided not to unite the two articles, alleging an “undisputable advantage in terms of clarity, and because these are to separate criminal occurrences”. He stated he wanted to cancel “any doubt” regarding the discussions on art. 145 of the Code of 1889 “that had meant to establish whether the expression ‘slavery or any similar condition’ had to be understood as slavery as a juridical condition, or also a de facto condition.”
It must be noted that the provision of art. 612 of the project that read “he who subjects a person to his power, so as to reduce him/her in such a state of subjugation that his/her individual freedom is completely suppressed, is punished with prison from 5 to 10 years”, the words “in such a state of subjugation that his/her individual freedom is completely suppressed” had been deleted, thus creating today’s article 603 of the Code. It is remarkable that so important a variation of the text gets no mention in the Secretary of Justice’s report to the King, and that there is no trace of justification as to conceptual and practical reasons that would have led to such a variation.
The Secretary’s report which commented on the text of the project, non on the final text, with no mention of the variation included plagium as a separate crime, yet parallel to reduction into slavery, and stated that this crime “consists of subjecting another to one’s power so as to reduce him/her in such a state of subjugation that his/her individual freedom is suppressed.” And further stated that “the above mentioned state of subjugation is a de facto state. The status liberates, as a juridical status remains unchanged, yet the victim’s individual freedom is suppressed. In essence, there comes about a relationship between the offender and the victim such that the first acquires on the latter a complete mastership and dominance, annihilating his/her freedom in its integral meaning, taking complete possession of his/her personality”. And after stating that in this crime “the victim’s agreement cannot cancel the crime, since individual freedom as a whole, referred to human personality, is not an available right”, the report goes on with a passage which, per se, demonstrates the ambiguity of this provision: “It must be noted that the expression ‘to completely suppress his/her individual freedom’ would not be exactly interpreted should one consider that there has to be a suppression of each and every one of the manifestations, without exceptions, in which freedom can express itself; quite on the contrary, the above expression seemed to be the most suitable to express the concept of denial, on the part of the offender, of the victim’s personality, and to differentiate plagium from other crimes against individual freedom, e.g. kidnapping, where there exists no relationship of subjugation as above which pervades and damages the human personality. Plagium should not be ruled out then, whenever the victim, who has been subjected to the offender’s power, can enjoy some form of freedom, e.g. the freedom to change location or to exchange letters with others, etc”. From this report to the project, although lacking substance and with insufficient motivation, one can see that on the one hand, by repeating verbatim in art. 600 the wording of art. 145 of the former Code, yet adding anew the provision of art. 603, the crime of reduction into slavery or into similar condition, had come to be limited in its scope by exclusively describing, in the compilers’ intention, criminal activities designed to violate only the victim’s juridical status. On the other hand, the provision of art. 603 was meant to punish those criminal activities which were intended to create in another a de facto state of complete subjugation.
The notion of slavery or of condition similar to slavery, meant as a juridical condition and described at articles 600-602 of the Code, and which the Secretary of Justice’s report wanted to separate from the crime under art. 603, did not take into account, however, art. 1 of the Geneva Convention of 25 September 1928 that had become an internal law of Italy with the Royal Decree of 26 April 1828, no. 1723, as referred to in that same report and which was reiterated in the Geneva Convention of 7 November 1956, ratified with Law no. 1304 of 20 December 1957.
In the part that lists the various situations which the Convention considers as “institutes and practices that are similar to slavery” many of these are de facto, not juridical conditions, since they can be brought about without any juridical provision or deed authorizing them. It follows that “condition similar to slavery” has to be interpreted as a condition whereby it is socially possible by custom, tradition and environmental circumstances to force a person into one’s exclusive service, whereas plagium must also and necessarily imply a trampling of a person’s inner will. Indeed, from the preparatory sessions to the Code of 1930 and from the various reports one can see that the crime at article 603 is implicitly formulated as causing on the victim a psychic effect by annihilating his/her freedom in its integral content, although neither of the Committee members nor the Secretary of Justice has explicitly stated that the crime could be committed without any mastership on the person to be realized through some human, physical activity.
The Code of 1930, then, contains a criminal occurrence different than that of art. 600 which, for the first time is named with the very ancient word “plagium”, thus bringing about on a legislative level and uniquely in the Italian law system a change in the lexical value of that word. At the same time, art. 600 does not maintain the wording of the same criminal occurrence of art. 145 of the 1889 Code, listed in the official indices of the project of this Code as “plagium”. It is called instead “reduction into slavery”.
The new law provision, which included a very hard punishment, was nowhere to be found in previous law systems in Italy or in Europe. Nor does it seem that other law systems have included the same provision of art. 603 of the Italian code now in force, or that the criminal activity described in that article has been provided for and punished, separating it from reduction into slavery or into a similar condition.
9. - In reviewing precedents and jurisprudence concerning art. 603, two separate time periods can be isolated: the first from 1930 to 1960, the second from 1960 to our day.
Until 1960, law scholars and judges had consistently tried to interpret art. 603, by theoretically implying a complete, de facto subjugation of the passive subject with a suppression of his/her autonomous will, and trying to separate plagium from other crimes against individual freedom, thus making it distinct from these other crimes and especially from kidnapping, at art. 605.
Writings by various authors show the uncertainty, and one can perceive at times the contrasts resulting from trying to establish what the characteristic elements should be for the crime that had not been clearly stated in the provision of art. 603, particularly the description of the result of the criminal fact stated as “a state of complete subjugation”, and to establish the meaning and the consequence of these words, maybe just though a few examples. These examples always consist of cases of partial, never complete, subjugation. Commentaries to art. 603 prior to 1960 do not even permit to derive by approximation what activities would actually bring about such a state or through what actions; nor can one establish whether it is possible to ascertain that the crime has been committed.
Following Carrara’s example, most law scholars in the first few years of the Code indicate, as the distinctive element especially when comparing it to kidnapping the purpose of placing the victim at the plagiator’s service and to beget a profit (or however an advantage) from the activities of such a service. Carrara’s ideas are believed to provide guidance to an interpretation of the current Code. Considering the variety of interpretations, other later authors have denied that such an element be essential for the determination of the foundation of the crime. Others still have maintained that the reason or the purpose of the action have no bearing on the notion of the crime, and they make reference to the statements contained in the Secretary of Justice’s report, who seems to characterize the crime mostly for the result of the plagiarizing action. “In order to ascertain whether plagium exists, what the Judge has to have as his/her aim is, in other words, the relationship of complete subjugation between the offender an the victim, so that the victim, having been deprived of the freedom to freely express his/her will and to freely determine him/herself, almost becomes a res [Latin] under the offender’s power. When this has been ascertained, the crime of plagium absorbs all other assaults on personal freedom, including kidnapping.”
It is clearly visible, then, that during the first thirty years of Code enforcement there had been no satisfactory solution to the problem of turning the formulation of art. 603 into an actual and univocal hypothesis.
The literal expression of that provision did not permit to come up with hypothesis which would correspond to the traditional meaning of plagium over the centuries, e.g. forcing someone to compulsory work, kidnapping children and profiting from their activity as beggars, providing women to some absolute King’s harem and other such crimes. On the contrary, the text in what can be guessed as the legislator’s intention seems to address the state of complete subjugation while supposing that it be possible to ascertain a condition of “de facto slave” as distinct from a condition of “juridically slave”, the first being a condition in which the psychic factor has more bearing than the external one, i.e. the way the victim conducts his/her life.
Based on the foregoing, the interpretation attempted by those who were trying to provide a typical connotation to the plagiarizing action, to the relationship between offender and victim, and to the status of the latter, resulted in an unsatisfactory interpretation. The very fact that art. 603 was punishing, in essence, a case of subtraction of personality, of reduction from person to other-determined object a case which, in actual fact, was very hard to ascertain, to say the least initially led law scholars and Judges to interpretations which contradictorily wavered between exteriorization and interiorization of plagium. Therefore, a number of authors while trying to establish the material element of the crime would write about bodily dominance and psychic dominance, without addressing though the problem of the interdependence of one aspect to the other; they would deny that the crime could be characterized by specific willfulness, they would the victim’s agreement does not cancel the crime, thus making way for a distinction (a very hard one to catch) between persuasion and suggestion, between denial of personality and free conviction.
10. Precedents relating to art. 603 provide a certain, unbiased datum that decisively strengthens the doubt expressed by law scholars that it be possible to give the law provision, as it is now worded, a univocal application. In the course of the first forty years of Code there have been very few trials for plagium, all of which have ended with "the fact is non extant" or "the fact is not a crime", or because the fact did non represent a crime of plagium but had to be classifies as something else.
In the motivations to those court decisions, while explaining the reasons for ruling out the existence of the crime of plagium, there are attempts to isolate by following the vague and inaccurate indications given in the Secretary of Justice's report the characterizing elements of this crime. There are several mentions of the fact that such a crime is indented for making profit out of the person who is the victim and is considered as a thing that can perform services, that can be lent, given away, sold; thus losing his/personality and rights and becoming a thing, a holder of monetary rights; that the material elements consists "of the establishing between active and passive subject of a de facto relationship, whereby the latter is subjected to the power of the first, with a resulting loss of his/her will power and annihilation of free volition in its integral content."
These first court decisions, although stating "that the legislator wanted to parallel the state of subjugation (meant as the de facto state resulting from plagium) to the juridical state resulting from reduction into slavery" and had wanted for complete subjugation to mean "a set of restrictions and limitations, such that it affects the personality as a whole, the person's will in its integral content," never say explicitly yet never deny explicitly that the activities by which the offender allegedly achieves the result described at art. 603 (a complete subjugation of the victim and the annihilation of his/her personality and volition) are of psychic nature.
In a few court decisions of 1956 and 1957, in order to provide some operational functionality to the provision, judges seem to realize that the offender's activity cannot result completely in the effect described by the legislators at art. 603. Such decisions state that the subtraction of another's power to freely will and to determine him/herself freely reduces the victim to "almost a res [Latin]" under the offender's power. In another decision, the same idea of interpreting the words "state of complete subjugation" in a lessening meaning is expressed by stating that, in order for plagium to exist "there has to be, between the two subjects, a relationship of such mastership, dominance, power, that the victim his/her volition and personality being "almost completely canceled" can be considered as "almost a res" under the offender's power."
For the first time, in 1961, the Supreme Court explicitly stated in a decision whereby it granted an appeal for lack of motivation on the conviction of the defendant as guilty that plagium had a psychic nature along with its characteristic elements. As stated by the Supreme Court, plagium "consists of the establishment of a psychic relationship made of absolute subjugation of the passive subject to the active subject, so that the first is subjugated to the power of the latter, with a complete or almost complete suppression of one's own free determination." And, while pointing out that the trial Judges had failed "to investigate in depth on the psychic relationship between the two subjects, so as to find the actual existence of the material element of the crime," the Court further stated that, unlike kidnapping, "the material conditions of existence of the passive subject have no other meaning than a mere circumstantial proof: what matters most is his/her psychic condition."
This last decision, too, intends to validate that interpretation of art. 603 of the Penal Code whereby "the state of complete subjugation" caused by the plagiarizing action does not necessarily mean that there has been as a result a complete suppression of the victim's freedom of self-determination:
The principles expressed in the 1961 decision have been used in the only decision where a defendant has been found guilty of the crime of plagium by the Court of Rome on July 14, 1968, ratified by the Court of Appeals on November 28, 1969 and by the Supreme Court on September 30, 1971. It is expressly stated that for plagium to occur "there is no need to have physical mastership over the person; it suffices that there be a psychic dominance which can be accompanied, but not necessarily, by a domination on the material and bodily levels; by reason of such a psychic dominance on the part of the offender, the status libertatis of the victim as a juridical state remains unchanged, while it is his/her individual freedom as a de facto, actual entity that is suppressed." This same concept is thus reiterated and added to, by saying that in order to bring about this crime there is no need for the offender to materially take possession of the passive subject, and by repeating what had been stated in the prior decision of 1961: contrary to kidnapping, the victim's material conditions of the victim have no other meaning than a mere circumstantial proof, whereas what counts are his/her psychic conditions. It is further explained that "on a juridical level, the crime of plagium is brought about by knowingly and willingly establishing through whatever means an absolute psychic dominance, maybe even a physical dominance on a persona; by a denial of his/her personality as a result of the suppression of freedom in its basic manifestations." The Court decision describes the psychic action of the plagiator, by stating that: "Art. 603 Penal Code protects freedom in its very original essence, in the dynamic factors, in the power of influence, in the power of criticism and of choice, of research and of decision; of conscience and volition. These powers, all of which pertain to the psychic activity, can be damaged non only through physical means resulting in bodily consequences, but also through psychic means resulting in particular, unusual situations, that are somewhat similar to neurosis and which derive from merely psychic mechanisms, caused by external psychic action." The decision by the Court of Appeals further clarifies that "the crime of plagium takes place also when the offender attacks the psychic sphere of another so as to annihilate his/her personality, replacing it with his own, taking away all ideals and purposes, and forcing his own on the other person, thus disintegrating all awareness of his/her individuality, turning him/her into a blind follower of his will, of his ideas; an automaton without any power of criticism, subjugated by the stronger willpower of another who leads him/her in a foreign world, where ideas are accepted as the only chance to expand one's personality."
This decision caused very broad and loud controversy, in both the juridical and medical fields, and also started two separate bills in the Senate and in the House of Representatives, both of which aimed at abrogating art. 603 of the Penal Code. It thus provided the juridical notion of plagium, while rejecting the interpretations given until then by precedents and by law scholars; all these interpretations described the plagiator's action as substantially and mostly physical, not possible aside from any other bodily or physical activities carried out on the victim.
The decision resolutely denied what had been upheld by many authors: that the purpose of placing the victim at the plagiator's service, resulting in a profit, makes for an element to separate plagium from other crimes against individual freedom; once again it was written that the complete subjugation mentioned at art. 603 must consist of the establishment of an absolute subjugation of the victim, by subjecting him/her to the power of the plagiator, with an almost complete suppression of the person's freedom and self-determination.
11. - From 1969 onwards, within criminal law scholars and in the public opinion, the notion of plagium has changed and expanded, all through disagreement, controversy, and in many aspects and in many directions.
The abundant literature produced in various fields with diverging conclusions shows the newly born directions taken by scholars and at the same time confirms, through controversy of various nature, the great difficulties that come about when there is need for a convincing, satisfactory answer to the juridical, scientific problems (both practical and theoretical) involved in the interpretation of art. 603.
In order to provide a full description of the crime and an objective analysis of the illegal actions and of their effects, recent literature has also utilized data that came from modern treatises of neurology and psychiatry, in an attempt to isolate for juridical purposes the medical principles although not yet self-evident of suggestion, conviction, persuasion, awe, determinism, annihilation of willpower and transfer of human personality on the part of one subject toward another subject. The purpose is to objectively establish in actuality what is meant by the state of complete subjugation as stated in the law provision, to point out the possible means to materially ascertain its existence, and to establish the boundaries of the juridical sphere within which it can manifest itself.
The variety of the numerous options proposed on this point and the changes in law studies also result in a confirmation of how indefinite the law provision is and how it is impossible to assign to it a unique application in actuality.
12. - An analysis of the text of art. 603 and the various attempts to differentiate this crime from other crimes against individual freedom, as a stand-alone occurrence, have been unable to describe with rational certainty its specific characteristics.
In formal terms it has the appearance of a crime based on free behavior, and which should be different than reduction into slavery or into a similar condition. Based on what explained above, this could be achieved by psychic means, i.e. through a psychic action on the part of the plagiator directly on the victim. The effect of this psychic action by the pagiator should consist instead of the reduction of a person in a state where he/she is unable to intend or to will (expressly described at art. 613 of the Penal Code) of reducing the victim from capable person to person in a state of complete subjugation. Such a state of subjugation as given at art. 603 would allegedly annihilate the victim's determinism by substituting the victim's determinism with the plagiator's, in such a way that the victim is reduced to a thing that thinks and acts exactly as the plagiator does. In other words, it would be the plagiator who shapes his own and the victim's will, the latter being just a physical means to perform the activities decided by the plagiator.
The ways in which the physical action of plagium by the plagiator can take place are not known, nor are they ascertainable. The same for how the state of complete subjugation is achievable that qualifies this crime, nor is it know whether for such a state to exist there has to be a continuous action by the plagiator, meaning that if the plagiator's willpower is no longer directed toward the victim, his state of total subjugation ceases. It is not therefore possible to learn if the effect of the plagiarizing action is permanent and lasting, or if it can cease at any moment based on the plagiator's decision or because his action does not continue or due to other reasons. Nor is known whether a resurgence of the victim's power of determinism can be a result of a change in the plagiator's determinism or a different direction given to the latter's determinism. As for psychic element, this would be a crime of generic willfulness.
Interpretations found in the precedents also identify the state of complete subjugation induced in the victim by the plagiator with a situation where the victim is subjected to the plagiator's willpower with an "almost complete suppression of the person's freedom and self-determinism."
Such an interpretation shows on the one hand how it is impossible to find and actual state of complete subjugation, a state, that is, where there is a complete suppression (not an "almost complete suppression") of any freedom and serf-determinism in the subject that is presumably plagiarized; on the other hand it modifies the crime that is provided for at art. 603 Penal Code, punished with 5 to 15 years in prison.
13. - Medical science has carefully investigated the shaping of persuasion, suggestion and psychic subjugation, and the mechanics thereof.
Amongst psychically normal individuals, a person’s communication of ideas and convictions to other human beings can result in an acceptance of such ideas and convictions, and so bring about a condition of psychic suggestion, meaning that such an acceptance consists of a transfer onto others of the product of a psychic activity performed by the agent, therefore a limitation of the person’s determinism. This limitation, as was scientifically proven and ascertained, can bring about typical situation of psychic addiction which may reach, over time, a high degree of intensity, as is the case with a love affair, a priest/believer relationship, a Teacher/pupil relationship, a doctor/patient relationship; it may even bring about a mutual influence relationship. Yet, with regard to the crime in point, it is extremely difficult, or even impossible, to isolate in actuality and to differentiate for purposes of juridical consequences a psychic activity of persuasion from an activity of suggestion, which is also psychic. There are no sure criteria to separate and describe one activity from the other, or to ascertain their exact borderline. The statement that in persuasion the passive subject still holds on to his power of choice based on the arguments he is given, so that he is able to refuse and criticize, whereas in suggestion the convincing action takes place directly and irresistibly, thus taking advantage of the other’s inability to criticize and to choose, implies necessarily that one has to make an evaluation not only about the intensity of the psychic activity by the active subject, but also of the quality of its results. As for intensity, the result of various psychiatric, psychological, psychoanalytical tests have shown that every individual is more or less prone to suggestion, but that it is impossible to find degrees of such activity, nor to ascertain in practice to what extent the psychic activity of the person giving out ideas and principles can prevent another from freely exercising their willpower. As for quality, it is not known what the extent is that the active subject’s activity concerns such directives and advices that the passive subjects is already willing to accept. As for the evaluation of results, it will only be symptomatic, and will turn out positively or negatively to the degree that the activity performed on the passive subject bring him/her to devious behaviors as compared to ethically, socially and juridically acceptable models.
In the case of plagium, the ascertainment of whether this psychic activity can be classified as persuasion or suggestion, with all the juridical effects that may go along with it, will be all but certain, and will be left to the Judge’s decision. Indeed, whenever art. 603 is enforced, any ordinary relationship be it a love affair, a religious profession, a participation in ideological movements, or otherwise if it is based on “blind, complete” adhesion of one subject to another and is considered socially deviant, may be criminally prosecuted as plagium.
The imprecision of this law provision and of its interpretation can also be traced in the foregoing reasoning.
14. The verbatim formulation of art. 603 represents therefore an occurrence that is not verifiable as to its performance and as to its results, in that it would not be possible to isolate or to ascertain the activities which could actually take place that would reduce a person in a state of complete subjugation; nor would it be possible to objectively describe such a state, the completeness of which, although stated in the law provision, has never been ascertained in a judicial trial
If one took for granted the psychic character of the plagiarizing action, it would be apparent that this action, in order to achieve the effect of placing the victim in a state of complete subjugation, would have to be carried out by someone who possesses such psychic strength as to be able to achieve one such result. There are no elements or ways, though, to be able to ascertain the existence of these special, exceptional qualities, nor is it possible to perform the ascertainments that are provided for at art. 314 Penal Procedure Code, since our law system does not permit to carry out a medical expertise on someone’s psychic state outside of pathological causes.
In addition, it cannot be demonstrated, on the basis of modern knowledge and experience, that there can be someone who can achieve, merely by psychic means, the total subjugation of another.
15. Faced with the perplexities raised by the one and only court decision to find a defendant guilty of plagium, issued within our law system in the more than 50 years from publication of the Penal Code, a number of law scholars has tried to isolate the typical characteristics of this criminal occurrence, also by referring to some elements taken from a psychiatric framework. A few of these scholars have interpreted the provision in a limited way, meaning that its purpose would allegedly be to protect from obsessive phenomena or from induced psychosis; thus, they seem to identify this crime by the concurrent action of two elements: one is an exterior element, consisting of the victim being taken away from his acquaintances by the plagiator, even by kidnapping or similar acts. The other one an interior element consisting of psychic deprivation experienced by the victim one the relationship with the plagiator is broken; a deprivation which, according to this theory, would show how the passive subject had actually been reduced into a state of complete subjugation.
One similar theory is again upheld for the Court by the defense counsel for the civil parties.
Now, aside from the fact that there is no hermeneutic canon that would authorize such a restrictive description of the crime, these elements do not seem neither alone nor together to add up to a reason to consider as accurately defined the crime at art. 603 Penal Code. On the contrary, they do seem to present one further demonstration the this article by itself inapplicable is actualized in precedent law and in law studies by reason of an analogical interpretation, in an attempt to assimilate the realizable states of almost complete subjugation to the unrealizable state of complete subjugation.
It must be noticed that the concept of “psychic deprivation” that is described as a feeling of needing someone, is essentially measured by a quantity, since in all love relationships there is some sort of what psychologists call “transfert” or of a psychologically mutual relationship. But to establish whether the break-up of a relationship with someone else is the indicator that there existed a state of “complete subjugation” it is necessary to know the intensity of the pain caused by the break-up. Such a question can only be answered subjectively, therefore it confirms per se the arbitrariness of such a conceptual solution.
On the other hand, the exterior element represented by being taken away from one’s acquaintances, when not supported by the interior element or if supported by an undetermined interior element, such as the deprivation addressed above, loses all meaningful connotation with regard to a typification of the crime.
16. A detailed review of the various and conflicting interpretations of art. 603 Penal Code, both in law studies and in precedent law, clearly shows the imprecision and vagueness of the law provision, an impossibility to assign to it an objective content, that is consistent and rational; it shows therefore an absolute arbitrariness of its practical application. It has been correctly compared to a drifting mine within our law system, since it could be applied to any fact that implies psychic dependence of a human being from another human being, and sing it lacks all certain parameters in order to establish its intensity.
Art. 603 Penal Code, in that it conflicts with the principle of specialness contained in the principle that penal matters can only be regulated by Penal Law, as consecrated in art. 25 of the Constitution, has thus to be declared Constitutionally unlawful.
17. The observation that art. 603 penal code conflicts with art. 25 of the Constitution absorbs the second issue raised by the trial Judge concerning the Constitutional unlawfulness of the same article in relationship with art. 21.
Therefore, the Constitutional unlawfulness of art. 603 in relationship with art. 25 of the Constitution has to be declared.
FOR THE ABOVE REASONS THE CONSTITUTIONAL COURT
Declares the Constitutional unlawfulness of art. 603 Penal Code.
So decided in Rome, at Palazzo della Consulta, the seat of the Constitutional Code, on April 9th, 1981.
Leonetto AMADEI, Chairman
Filed with the Records Office on June 8th, 1981.