Circumstanțele atenuante și agravante în dreptul penal italian
Mitigating and aggravating circumstances in the Italian criminal law

Summary/Abstract: The institution of mitigating and aggravating circumstances represents one of the main pillars of the judicial individualization of the criminal sanction in any modern criminal law system, from which European law is no exception. Such a representative legal system is also the Italian one, which was, along with other systems, a source of inspiration for the legislator of the new Romanian Penal Code, in force starting from 1 February 2014, as is clear from the statement of reasons itself accompany.As such, from the reading of the regulations of the Italian Criminal Code, it can be noted the existence of some similarities in terms of the definition of circumstances, including at the level of specialized literature, their classification under legal and doctrinal aspects, the express listing of mitigating circumstances – legal (common) or judicial (general) – and aggravating, the judge’s obligation to motivate the retention or non-retention of the circumstances, to avoid an arbitrium judicis on his part – in favour of a giudizio di bilanciamento, or the recognition of the general criteria for individualizing the punishment. In addition, the Italian legislator also regulates the category of circumstances excluding the penalty, which are used in the same way as mitigating circumstances, with the effect of excluding the illegality of the act.However, there are specific legislative peculiarities, for example in terms of the effects attributed by the legislator and the margin of appreciation of the judge of the case, the express regulation of mitigating and aggravating circumstances under the condition of not providing for the same circumstances as constitutive elements of the crime or as special circumstances, a restriction that has generated some divergences in Italian jurisprudence and doctrine regarding the scope of delimitation of these institutions, or in relation to neighbouring ones, such as that of the criteria for the individualization of punishment. At the same time, the Italian legislator expressly specifies that the lack of criminal history cannot be assimilated to a judicial mitigating circumstance, and the main aggravating circumstance in Italian criminal law is recidivism, as it has some particular effects, such as the establishment of minimum punishment thresholds below which the judge cannot go regardless by the number of circumstances favourable to the criminal agent.

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