A public official and law enforcement officer assigned to protect the state’s sea borders commits a crime if he/she spreads, even from the personal profile, clear and unequivocal messages calling for adherence to fascist ideology and its violent methods of addressing, specifically, the issue of immigration through the physical elimination and deportation of people of different ethnicities.
(automatic non official machine translation, AI supported)
ITALIAN SUPREME COURT OF CASSATION
FIRST CRIMINAL SECTION
Judgment
Deposited on January 27, 2025, No. 3351
The Court has pronounced the following:
JUDGMENT
On the appeal filed by:
[Name omitted], born in [Location omitted] on [Date omitted]/1971, against the judgment of February 12, 2024, issued by the Court of Appeal of Lecce.Having examined the case files, the contested order, and the appeal;
Having heard the report delivered by Councilor Stefano Aprile;
Having heard the Public Prosecutor, represented by Deputy Prosecutor Gianluigi Pratola, who concluded that the appeal was inadmissible;
Having heard defense counsel [Name omitted], of the Santa Maria Capua Vetere Bar, representing [Name omitted], who concluded by requesting that the grounds of appeal be upheld.
FACTUAL BACKGROUND
1. With the contested ruling, the Court of Appeal of Lecce upheld the judgment of the Court of Lecce dated May 16, 2019, which had convicted [Name omitted] for publicly glorifying, through various posts and comments on his public Facebook profile, individuals, principles, events, or methods of fascism and its anti-democratic objectives—a criminal offense under Article 4 of Law No. 645 of June 20, 1952 (Law Scelba)—with the aggravating circumstance of glorifying racist ideas and methods. The defendant was sentenced to one year of imprisonment and a fine of 350 euros, with general mitigating circumstances deemed equivalent to the aggravating factor.
1.1. Based on an undisputed reconstruction of the facts, which included the publication of posts praising Mussolini and Hitler and displaying symbols of their respective regimes, as well as endorsing methods of exterminating foreigners—either through execution by bullets, which were publicly displayed, or through deportation via armored trains—the lower court judges concluded that these acts of glorification and apologia posed a concrete risk of reconstituting the dissolved Fascist Party, while also promoting and propagating racist ideologies and anti-democratic methods. The conduct in question occurred in a period immediately prior to November 2017.
GROUNDS OF APPEAL
2. [Name omitted], through his counsel, filed an appeal seeking annulment of the contested judgment, alleging:
• Violation of the law, concerning the incriminating provision.
• Defective reasoning, regarding the lack of a functional link between the conduct and a concrete danger, as well as the subjective element of the offense.
The appellant argued that the concrete danger required by case law had not been established, asserting that his ideas were being punished without any verification of their actual potential to reconstitute the Fascist Party. Additionally, he contended that the risk posed by the posts was never verified among their recipients.
The appellant further argued that his posts were spontaneous and not disseminated in forums or other open communities, and therefore their actual capacity to reconstitute the Fascist Party or to influence the public should have been assessed—as recently reaffirmed by case law (Sez. U, No. 16153 of 18/01/2024, Clemente, Rv. 286241 - 01)—rather than assuming that the mere use of social media made them inherently capable of reaching a large audience.
Moreover, the Facebook profile, although public, was personal, meaning it did not belong to a public figure. Consequently, it could only be accessed by those who actively followed the appellant, rather than by a broad, indiscriminate audience, thereby negating the danger that the incriminating provision seeks to prevent.
LEGAL CONSIDERATIONS
1. The appeal is unfounded.
2. The appeal does not dispute the content of the posts nor their abstract suitability as apologia and glorification of fascist and Nazi regimes. These posts contained symbols, expressions, and explicit references to the aforementioned ideologies and their violent actions, including deportation and physical elimination of foreigners.
Among the posts examined were:
• Images of large-caliber bullets with the caption: “Mandatory vaccines for illegal immigrants have arrived.”
• A locomotive with a swastika, accompanied by the phrase: “The locomotive is ready.”
• Banners featuring the Roman eagle, the phrase: “Happy Fascist Sunday,” and an image of Hitler allegedly conversing with the then-Minister of the Interior, raising his index finger in response to the question of how to solve illegal immigration.
• The image of the Fascist Oath and the phrase, alongside an image of Mussolini: “When injustice becomes law, rebellion becomes duty.”
The appeal argues that these posts were not capable of posing a concrete risk of reconstituting the Fascist Party, despite the defendant’s own admissions regarding their content.2.1. The lower courts correctly observed that:
• The defendant, as a non-commissioned officer of the Port Authorities, held a position of public trust, making him a credible and influential figure in the eyes of those who engaged with him online.
• Social media, even when used on a personal profile, serves as a powerful dissemination tool capable of reaching an indiscriminate audience, especially through sharing, referencing, and citations.
• The posts were numerous and repeated, indicating a deliberate and sustained effort rather than isolated incidents.
• The widespread engagement and support from users demonstrated the real impact of the apologia, reinforcing the risk posed by fascist and racist propaganda.
2.2. The Court finds that the reasoning of the lower courts is entirely consistent with established case law.
Even after the recent ruling in Clemente (Sez. U, 18/01/2024, No. 16153) regarding the display of fascist symbols (Art. 5, Law No. 645/1952), the Supreme Court has reaffirmed that: “The crime of apologia for fascism requires conduct that, in concrete terms, is capable of generating adherence and consensus aimed at reconstituting the dissolved Fascist Party.”
2.3. Given that the appeal does not deny the apologetic and ideological nature of the conduct, the lower courts rightly assessed its concrete potential to revive fascist ideology.
• The defendant’s status as a public official and judicial police officer responsible for the protection of state borders was rightly deemed an aggravating factor, as it increased the credibility and potential influence of his statements.
• The defendant’s posts generated real engagement and support, showing a tangible risk of promoting fascist ideology and its violent methods as solutions to immigration.
2.4. The argument that the defendant was merely a private user on Facebook is irrelevant:
• Social networks are inherently indiscriminate dissemination tools.
• The posts were widely shared, recalled, and endorsed, amplifying their propagandistic effect.
2.5. Since the appeal fails to challenge the evidentiary foundation of the case, the Court confirms the conviction.
DISPOSITION
The appeal is dismissed, and the appellant is ordered to pay the costs of the proceedings, pursuant to Article 616 of the Code of Criminal Procedure.
Rome, January 27, 2025.
Signed:
• Vincenzo SIANI (President)
• Stefano APRILE (Relator)