Has the theft happened at night? No aggravating factor if there is no situation of vulnerability

The Sezioni Unite were called upon to answer the legal question of whether the theft committed during the night should be considered aggravated for this reason only pursuant to art. 61 n. 5 c.p.

Based on the provisional information and from what is learned from the website of the Court of Cassazione, at the hearing on July 15, 2021, the Sezioni Unite provided the following solution: "For the purposes of integrating the aggravating factors of the defence, the circumstances of time, of place or person, from which the agent has profited in such a way as to hinder it, must be ascertained as concrete and conclusive factual elements capable of demonstrating the particular situation of vulnerability - object of profit - in which the subject found himself passive since the abstract suitability of the aforementioned conditions is not sufficient to favour the commission of the offence ".

In this case, it has been stated that the commission of the crime in night time can constitute the aggravating factors in question, provided that proof has been obtained that the public or private defence has been effectively impeded and that there are no further circumstances, of a nature different, suitable to neutralise the aforementioned effect.

Therefore, the assessment must be carried out concretely and in fact in order to verify whether the nighttime data actually represented a condition that facilitated the commission of the crime, i.e. that the cancellation or restriction of public defence powers actually occurred or private.