Food theft in Italy may not be a crime, court rules

ROME — Stealing food from a supermarket may not be a crime in Italy if you are homeless and hungry, the nation’s highest appeals court has ruled.

In a case that has drawn comparisons to “Les Misérables,” the Supreme Court of Cassation threw out the conviction of a homeless man from Ukraine, Roman Ostriakov, who was caught trying to take about $4.70 worth of cheese and sausage from a store in Genoa without paying for it. A trial court sentenced him in February 2015 to six months in jail and a fine of 100 euros.

“The condition of the defendant and the circumstances in which the merchandise theft took place prove that he took possession of that small amount of food in the face of the immediate and essential need for nourishment, acting therefore in a state of need,” and therefore the theft “does not constitute a crime,” the appellate court wrote in its decision, which was reported Monday by the Italian news agency ANSA.

The court’s decision went f ar beyond what the appeal in the case had sought. Valeria Fazio, the prosecutor at the Genoa court where the trial was held, said that her office understood that Ostriakov had stolen only out of need, and had appealed in hopes that the court might set a more lenient sentence. But the court decided that he “doesn’t have to be pun- ished at all,” Fazio said.

The court has yet to release its full reasoning in the case, but Gherardo Colombo, a former member of the Supreme Court of Cassation, said it seemed to rely on an Italian legal doctrine: “Ad impossibilia nemo tenetur.” The term is Latin for “No one is expected to do the impossible.”

Maurizio Bellacosa, a professor of criminal law at Luiss University in Italy, said applying that doctrine to a shoplifting case “has a certain novelty.”

“They rarely apply the ‘state of necessity,’ ” Bellacosa said, and when they do, it is generally in cases “like a castaway who fights with another shipwreck victim for the last raft he has to save his life.”

When examining thefts by poor people, he said, “usually the court classifies these cases as smaller crimes, but crimes, as poverty is considered avoidable through the social support system.”

In contrast with the U.S. legal system, the decisions

of the Court of Cassation do not necessarily create binding precedents for lower courts to follow.

The ruling quickly generated a heated response in Italy.

“For the supreme judges, the right to survival has prevailed over the right to property,” Massimo Gramellini, an editor at La Stampa, a newspaper based in Turin, wrote in an opinion column. “In America that would be blasphemy. And here as well, some conformists will talk about a legitimation of proletarian expropriation.”