Shoplifting: any news?

Avv. Vittorio Poli

Shoplifting knows no “crisis” and has always resulted in a large number of criminal proceedings.

Over time, there have been several attempts to introduce deflationary measures, considering the judicial process that had to be set in motion for each case to be disproportionate.

The Legislative Decree No. 150 of October 10, 2022 moved in the same direction, amending Article 624, paragraph 3, of the Italian Criminal Code (“Theft”) to make cases of theft of goods displayed in a shop prosecutable upon criminal complaint.

So far, nothing unusual. Except that the Public Prosecutor's Office of Milan has recently taken a stance that seems to amplify this deflationary aim well beyond the legislator's intention. However, this creates quite a few issues, especially for companies with numerous stores scattered throughout Italy.

In response to a number of thefts, for which criminal complaints were immediately filed by the owners of the individual stores involved, the Public Prosecutor's Office has in fact submitted requests for dismissal of the proceedings which, although signed by different magistrates, use the same arguments and even the same words.

The bottom line is that, according to the Public Prosecutor's Office of Milan, the criminal complaint must be signed personally by the legal representative of the company that owns the store or by a person with special power of attorney “issued by public deed or authenticated private document.”

In practice, this solution appears difficult to manage for companies with numerous stores (dozens or sometimes even hundreds), which are usually managed by a single person (the “manager”) who is subject to frequent rotation: it is unrealistic to assume that a notarized power of attorney would be issued for each store (and revoked each time the manager is replaced).

Nor is it reasonable to think that the CEO should take care of it.

For this reason, some companies particularly affected by the position taken by the Public Prosecutor's Office of Milan have decided to take action, objecting against the requests for dismissal of the proceedings as they have been issued.

A first ruling issued by the Court (Office of the Judge for Preliminary Investigations) seems to set things straight: in rejecting the request for dismissal, the judge points out that “established case law holds that the manager of a commercial establishment, even if he or she does not have powers of representation or authority from the owner of the goods offered for sale, has the right to file a criminal complaint for the theft of goods held and displayed to the public.”

In fact, the case law of the Court of Cassation unanimously admits that the criminal complaint may come not only from the legal representative of the company that owns the store, or from its special attorney, but also from other individuals who have a factual relationship with the stolen property: store managers, cashiers, and security managers are all “qualified holders” and, as such, have the right to file a criminal complaint on their own behalf.

In the case in question, the judge rejected the public prosecutor's request to dismiss the case and declared the particular insignificance of the offense, thus demonstrating the existence of other possible ways of achieving the same deflationary objective without having to stretch the rules beyond what is permitted.

This first attempt, therefore, has been rejected. Others are awaiting a decision. Only time will tell who will emerge victorious. In the meantime, companies are watching and waiting to see how they should proceed.