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Legislative Changes and Abolitio Criminis: A Legal Analysis

In the legal field, it is crucial to understand how legislative changes can affect the criminal relevance of specific behaviors. In this article, we will examine a specific case based on the judgment of the Criminal Cassation VI Section No. 30227/2020, in relation to Article 2 of the Penal Code. We will delve into the implications of legislative changes and the concept of abolitio criminis.

Case Context and Legislative Amendments

The case in question concerns the crime of embezzlement committed by hoteliers who failed to pay the tourist tax to the Municipality. Before delving into the judgment, it is important to note that with the “decreto rilancio” (recovery decree), D.L. 19 May 2020, No. 34, the Government made significant changes to the legal relationship between hoteliers and the Municipality regarding tourist taxes. These changes had a direct impact on the legal classification of hoteliers.

Legislative Changes and Abolitio Criminis

Decree-Law 34/2020, in force from May 19, 2020, transformed hoteliers from auxiliaries into responsible parties for paying the tourist tax. This change had direct implications for classifying hoteliers as agents of a public service. Consequently, the conduct of hoteliers who omitted to pay the tourist tax after May 19, 2020, is no longer criminally relevant and constitutes only an administrative offense.

However, the main issue revolved around behaviors committed before the 2020 legislative reform. These behaviors were governed by an extrapenal norm, and the legislative amendment did not constitute abolitio criminis, as it did not affect the norms that truly integrated the criminal offense. However, the legislature subsequently made the 2020 reform retroactive through Law No. 215/2021, disrupting the previously consistent approach with established jurisprudential principles.

In conclusion, legislative changes can have a significant impact on the criminal relevance of behaviors. In the case at hand, the legislature made a reform retroactive, unexpectedly affecting the legal status of hoteliers. This raises important legal questions regarding the application of the principle of abolitio criminis.