Let's make clarity with the lawyer.
Over the years we have found that there is a bit of confusion and little information about the risks run by those who deface walls.
We asked for help from Attorney Chiara Corradini and she very kindly accepted our invitation. We thank her, here is her valid and clear contribution:
"Perhaps not everyone knows that Graffitiing walls is a crime (obviously in the case in which such activity has not been authorised as happens, for example, in some areas made available by municipal administrations and in which graffiti artists can express their artistic talent); but what do the so-called graffiti artists actually risk? “writers”?
Well, the author of the writings is at risk of having to face a criminal trial, with all the consequences that this entails.
Article 639 of the Criminal Code (which punishes the crime of "Defacement and defacement of other people's property") in fact provides that anyone who defaces property - but also public or private means of transport – risks imprisonment from one to six months or a fine of 300 to 1.000 Euros, sanctions that increase if the graffiti was made on monuments or in areas of artistic interest, for which the penalty is imprisonment up to one year and a fine of 1.000 to 3.000 Euros (and in the latter case the proceedings are carried out ex officio, while in the first case mentioned, a complaint from the party is necessary to initiate criminal action).
Il Legislative Decree 14 of 20 February 2017 he then made a further amendment to the aforementioned article, providing for the the judge's power to impose the convict is obliged to restoration and cleaning of the premises, or, if this is not possible, the obligation to bear the costs or to reimburse those incurred or, if the convicted person does not object, the provision of unpaid activities for the benefit of the community for a fixed period of time which in any case does not exceed the duration of the suspended sentence.
The text of theArticle 639 of the Criminal Code has in fact “escaped” to the decriminalization of numerous types of crime carried out by the Legislative Decree no. 7/2016 and, subsequently, in 2018, the Constitutional Court has confirmed the relevance criminal of the conduct of the “writers”, declaring – with Sentence no. 102– the inadmissibility of the two questions of constitutional legitimacy raised by the Courts of Milan and Aosta in relation to the sanctions regime provided for by the aforementioned law.
It must be said that, in the event that it is advanced request for postponement on trial for the crime under art. 639 of the Criminal Code, the institute of the so-called suspension of the trial with a request for "probation" can be applied, thanks to which it is possible to obtain a acquittal sentence for extinction of the crime (in short, no conviction will appear on the defendant's criminal record in the event of a positive outcome of the probationary period). However, in order to be applied, this institute presupposes, on the one hand, the performance of a public utility work, consisting of a free service in favor of the community and, on the other, compensation for damages by the perpetrator of the act. Furthermore, this benefit can only be granted once and is excluded in cases where the defendant has been declared by the judge habitual criminal or for trend (pursuant to Articles 102, 103, 104, 105 and 108 of the Criminal Code).
On the contrary, in the event of a sentence of conviction, alternative sanctions are still applicable (such as probation to social services); obviously, in this case such sentence of conviction, once it becomes definitive, will be noted on the criminal record judicial review of the accused, with all the obvious negative repercussions that this can entail.
As regards the jurisprudence relating to the topic we are dealing with, it should be noted that the Court of Cassation – Second Criminal Section, With the Sentence no. 16731 of 20 April 2016, has excluded the punishability of the graffiti artist – considering the existence of the particular “triviality of the fact” – in the case in which there are pre-existing writings on the wall on which the writer works. On the other hand, an interesting ruling is reported (Sentence number 23069 of 23 May 2018) with which the Court of Cassation has annulled a sentence issued by Court of Florence who had acquitted a foreign citizen who had defaced the wall of a loggia of historical and artistic interest which had already been defaced, considering that, for the purposes of the configurability of the crime under art. 639 of the Criminal Code, “the existence of fraud is not excluded by the presence of other writings already present”.
Not only.
All criminal penalties the above are joined by others administrative nature – which vary from municipality to municipality – which have been introduced by multiple ordinances aimed at protecting urban decorum and with which municipal administrations attempt to put a stop to the phenomenon of graffiti.
For example, in Rome you risk a fine of 300 to 500 euro, as well as the obligation for the graffiti artist to clean the wall within 15 days, under penalty of a further charge by the Municipality at the end of the works; furthermore, as in Milan (Municipality where a “database” of the so-called “tags”, (i.e. the graffiti artists' signatures), the capital has also decided to constitute itself as a civil party in all the trials caught in the act of committing a crime. "
Attorney Chiara Corradini
