Disturbance of Public Peace: The Venue Owner’s Criminal Liability under Article 659 of the Italian Criminal Code

A manager of a public venue may be held liable for the petty offence under Article 659, paragraph 1 of the Italian Criminal Code (c.p.) for disturbance of people’s rest and ordinary activities caused by patrons outside the premises, where it is proven that the manager failed to exercise the supervisory powers incumbent upon him, and that the event is attributable to such omission.

Indeed, the status of person in charge of managing a public establishment entails the assumption of a duty to ensure that customers’ attendance does not result in conduct contrary to the rules governing public safety policing (Criminal Division, Section I, 28 February 2003, no. 16886; Section I, 27 March 2008, no. 17779; Section I, 30 September 2009, no. 40004). For the event to be imputed to the manager, it must be traceable to the failure to exercise such supervisory power and therefore linked, by a harmful causal nexus, to that omission.

In the case at hand, the Court of Cassation found the defendant’s appeal to be unfounded and convicted him of the offence under Article 659 c.p., imposing a fine (ammenda). Furthermore, given that the injured parties had joined the proceedings as civil claimants, the Court awarded damages in their favour, also granting interim payments (provvisionali).

Understanding whether a conduct amounts to “Disturbance of the public peace”

Specifically, the legal representative of a company operating a venue that played music at a high volume, in order to attract attention, used the area in front of the premises for patrons’ outdoor consumption. The venue’s doors, however, were constantly opened by customers, allowing the music to spread outside as well.

It therefore appears that the issue underlying the case continually shifts attention between different actors: on the one hand, the venue manager; on the other hand, the patrons themselves.

The key problem—also from an ethical and social standpoint—lies in how the seriousness of the conduct is perceived and in the need to identify a concrete party to be held accountable. It may seem obvious to argue that, if the “noise” (and therefore the disturbance) is caused by patrons, it is not immediately clear why the manager should be punished.

Yet, social perceptions often diverge significantly from the assessments made in court.

Liability of specific categories: Nightlife venues

What, then, should be the scope of responsibility of a manager of a mainly night-time business? Beyond running the venue, his duty would also be to prevent the activity from disturbing those who are not part of nightlife.

It is not socially acceptable that the entertainment of some interferes with the activities of others who, among other things, are compelled to endure someone else’s leisure.

It follows that, if customers attending a venue (whose business operates at night) do not know, or do not comply with, basic rules of civility and behave in breach of elementary standards of good conduct, the operator has the duty to manage them where they are particularly noisy.

In fact, if the commotion they cause is capable of disturbing people’s rest, responsibility for that disturbance may be attributed to the venue manager, who thereby risks a criminal conviction.

Procedural history: Disturbance of the public peace

The manager of a pub was convicted at first instance by the Trial Court and sentenced under Article 659, paragraph 1 c.p., due to the patrons’ noisy behaviour and because he had taken no action to prevent it.

Through counsel, the defendant filed an appeal to the Court of Cassation, arguing that the venue manager could not be held responsible for the conduct of others and that, accordingly, the sentence should not apply, nor should the damages ordered by the trial court in favour of the civil claimants.

Those claimants, in particular, stated that the noise to which they were subjected disturbed their peace and their rest, as it was clearly audible from inside their homes.

The appeal therefore sought the annulment of the first-instance judgment. The Supreme Court, however, finding the grounds of appeal unfounded, rejected it and further aggravated the manager’s position by ordering him—besides the penalty and damages already awarded—to pay the costs of the proceedings.

Defence arguments under Article 659 of the Criminal Code

The appeal was based on the alleged inconsistency and illogicality of the reasoning, on the ground that the noises coming from the venue and from the patrons were not capable of disturbing the public peace.

As a matter of principle, the defendant challenged the existence of any liability on his part for such noise.

He further argued that previous checks carried out by the municipal police, prior to the contested episode, could not be considered as evidence. He also alleged that witness statements (municipal police officers and Carabinieri) were inconsistent and contradictory, and that the criminal provision had been misapplied because, in his view, the constitutive elements of the offence were absent. Finally, he argued that there was no proof of the noise’s “diffusiveness”, as it was allegedly audible only in the homes of the civil claimants. Those claimants, moreover, were said to have sought damages without any foundation and without a causal link between the offence and the alleged harm.

Exercise of enforcement powers by the Local Police

Conversely, relying on the first-instance decision, the Supreme Court highlighted that the allegations against the venue manager were directly attributable to his ineffective exercise of supervisory and control powers, and thus connected to that omission by a causal relationship.

In other words, the manager omitted “to make use of the various means provided by the legal system (such as enforcing the ius excludendi or requesting intervention by the authorities) to prevent the patrons’ attendance from resulting in conduct contrary to the rules protecting public order and tranquillity” (Criminal Division, Section VI, 24 May 1993, no. 7980; Section I, 3 December 2008, no. 48122).

Evidence required in the criminal proceedings

The challenged judgment was therefore fully satisfactory and reasonably coherent in every respect.

Evidence consisted of consistent statements by local residents, “corroborated by supporting elements, in particular the personal observations made—during the period relevant to the charges—by law enforcement officers, whose statements clearly showed that the shouting and noise were heard very loudly in at least one of the complainants’ homes.”

With an assessment that was reasonable and coherent, and therefore not challengeable in cassation proceedings, the Trial Court held, beyond any doubt, that the noises were attributable to the defendant’s conduct.

Moreover, the conduct he had put in place was found insufficient to exclude his responsibility, with the obvious consequence that the event could not but be directly attributable to him.

Finally, the complaint regarding an alleged lack of reasoning as to the harm suffered by the civil parties, on the assumption that there was no causal nexus between harm and offence, was deemed entirely irrelevant. The Supreme Court found it wholly unfounded. In the case at hand, it noted that the Trial Court had fully ascertained the unlawfulness, the violation, and the causal link, highlighting, on the one hand, the defendant’s criminal liability for the disturbance caused by the noise coming from his premises, including its suitability to disturb the public peace, and on the other hand, the concrete disturbance suffered by the civil parties (specifically described in the judgment).

Difference between a criminal offence and an administrative violation

In fact, one may feel that the decision is excessively harsh towards a venue manager, who is required to adopt conduct that encompasses responsibility for behaviour that does not fall entirely within his direct sphere of action. The boundary between the power to intervene and the actual likelihood that such intervention will be effective is certainly the critical point. The assessments to be made should therefore always focus on the specific circumstances of each case, paying particular attention to the manager’s actual conduct in the concrete situation.

This is in order to avoid expanding criminal punishability to include behaviours that do not display all the characteristic and constitutive elements of the offence at issue.

When assessing the scope of decisions such as the present one, it is essential—especially for a criminal lawyer—to focus on the boundary between the criminal offence of disturbance of the public peace under Article 659 c.p., and the administrative regime concerning noise, governed by Law no. 447 of 26 October 1995 (Framework Law on Noise Pollution). Article 10 of that law provides for administrative fines in cases where statutory noise limits (as set by technical standards, municipal zoning plans, or authorisations) are exceeded and the prejudice is limited to specific or readily identifiable persons. By contrast, the criminal offence requires an additional element, namely the suitability of the conduct to affect public tranquillity as a collective interest, through a disturbance potentially extending to an indeterminate plurality of persons. It follows that not every annoying noise automatically amounts to a criminal offence: overly broad interpretations of Article 659 c.p. would risk overlapping the criminal sphere with the administrative enforcement system designed by the legislature for breaches of noise thresholds. Correct application of the rule therefore requires a strict case-by-case assessment of the diffusiveness of the noise and its concrete impact on public order and tranquillity, to avoid undue criminalisation of conduct that—however bothersome—remains within the scope of administrative unlawfulness.

Indeed, in a decision of 13 May 2014 (Section I), the Court of Cassation assessed the contravention in relation to a nightclub whose night-time noise disturbed only the residents of the building in which the venue operated. In that case, the Court excluded the applicability of Article 659, paragraph 1 c.p., since the noise emissions were limited to apartments adjacent to the source: noise extending to the entire building cannot be considered offensive, nor suitable to disturb the public peace. It is clear that each individual case must be carefully studied and interpreted not only in light of the relevant statutory provision, but also in light of the numerous judicial precedents.

Disturbance of people’s activities or rest

Article 659 of the Criminal Code is placed in Book Three and regulates two distinct contraventions: a general one, set out in paragraph 1, which applies to “anyone” who commits the unlawful act, and the one under paragraph 2, which punishes conduct by persons who, by profession or trade, carry out noisy activities.

The offence under paragraph 1 is a so-called endangerment offence. In this context, the legislature protects the public peace, with particular attention also to private tranquillity, considering essential both individual rest and the peaceful performance of work activities (especially those requiring concentration).

For the offence to be deemed committed, the conduct (whether by action or omission) must be suitable to cause disturbance to “people’s activities or rest.” The offence is completed by the subjective element (mens rea), typically intent, characterised by the will or awareness of engaging in conduct harmful to the protected interest, or by negligence, where the person could have prevented or reduced the disturbance by exercising ordinary diligence.

Sanctions and consequences

Where the above occurs, paragraph 1 provides for arrest of up to three months or a fine of up to EUR 309, while paragraph 2 provides for a fine (from EUR 103 to 516) for those who carry out a noisy profession or trade “in breach of statutory provisions or of the authorities’ prescriptions.”

Protection of the victim / how to act

For the perpetrator to be punished, the acts must interfere with people’s rest or must necessarily be such as to create a widespread disturbance of ordinary activities.

In practice, to obtain punishment, the person affected must pursue legal action to protect himself (and, consequently, the broader community referred to above).

Clearly, one cannot dispense with a technical assessment carried out by specialised professionals to evaluate, concretely, the harmfulness of the noisy activity. It is therefore necessary to initiate the ordinary course of proceedings by bringing the disturbing facts to the attention of the Public Prosecutor’s Office, typically by filing a written complaint, either directly or through law enforcement.

There are, however, cases (Criminal Division, Section I, no. 20954/2011) in which, for the contravention to be established, a technical assessment through expert evidence is not necessary. The judge, if he deems it appropriate, may base his conviction on other evidence, such as statements by persons able to describe the characteristics and effects of the perceived noise, so that the threshold of normal tolerability is objectively exceeded.

One may think, for example, of establishing the disturbing nature of loud music played at night in a disco-pub, as well as patrons’ shouting, through the testimony of residents living in the building where the venue is located.

Relationship with condominium neighbours

As noted above, this is an endangerment offence: the criminal conduct involves the mere placing at risk, or potential impairment, of the protected legal interest (which is protected for all, not only for neighbouring residents).

The rationale for punishing conduct that does not materialise as actual harm in the traditional sense lies in the progressive assumption by the State of solidarity-based tasks.

This approach led the legislature to anticipate criminal protection for certain collective interests at the stage of endangerment.

Relying on the Court of Cassation (Section I, judgment no. 7748/2012), it is sufficient, for the offence to be considered established, that the conduct be suitable to disturb people’s peace.

Once the constitutive elements are met, punishment follows under Article 659 c.p. as described. This may not apply in practice where the defendant makes use of oblazione (see Articles 162 and 162-bis c.p.), which allows the offence to be extinguished. One must, however, ask whether, and under what conditions, such extinguishment is permitted in the present context.

The general principle—also supported by case-law and inferable from the statutory text—is that both contraventions are eligible for oblazione: the first through discretionary oblazione (at the judge’s discretion) because the provision includes arrest among the penalties (Article 162-bis c.p.).

By contrast, under paragraph 2, “simple” oblazione is admitted, extinguishing the offence by paying a sum of money before the opening of the trial or before the issuance of a summary criminal order.

In this regard, the Court of Cassation, judgment no. 7758/2012, held that oblazione was admissible for the contravention under Article 659 c.p. in relation to the installation of an air-conditioning system producing annoying noise, because, although the offence may be permanent, continuation of the unlawful consequences was neither alleged nor proven.

The case of a noisy condominium neighbour

To better understand the protected interest, one may consider the case of a person who, in a condominium, plays a musical instrument during the day and thereby disturbs, for example, a student.

In such a case, to protect tranquillity, a concrete assessment of the potential harmfulness of the noisy activity is required, with the consequence that, for instance, the absence of other residents (because at work or outside the home) cannot be used as an exonerating or justifying factor.

Moreover, the contravention may arise in other situations where the “active” subject differs from the one who is directly punished.

Consider the cases of culpa in vigilando, where the duty of supervision (over minors causing noise, or dogs barking during the night) gives rise to liability by omission for the person required to supervise.

But what happens when the potentially harmful conduct stems from a profession or trade? The legislature specifically addressed such situations in paragraph 2 of the provision.

The typical case is a trade that is inherently noisy. It is obvious that, in such cases (for example, a carpentry workshop or a mechanical garage), it is not necessary to establish whether the activity is noisy: that is a presumed characteristic that intrinsically defines the trade. Accordingly, the assessment must focus on compliance with the applicable rules and administrative prescriptions in force at the time of inspection. Only where the trade is carried out in breach of applicable laws (national, regional, municipal, etc.) may the conduct be punished under Article 659, paragraph 2 c.p.

In summary, carrying out a noisy trade in an exclusively residential area may be punishable because the violation is objectively verifiable as it is predetermined by law.

Analysis of the “average person”

It is clear that the provision may encompass a variety of different behaviours, whose common feature is the existence of the “disturbance” referred to in the heading, even in the absence of a typical perpetrator or a stereotypical “agent”.

Indeed, the cases in which the abstract offence may become concrete include both culpa in vigilando—as mentioned above—and cases where the charge must be brought against the person who actually commits the offence.

It often happens that disturbances characterise residential areas, and probably especially condominiums, where pets “left” on balconies, terraces, or inside apartments—besides potentially constituting other offences such as animal abuse—may cause disturbance to peace or rest. In this case, incessant and continuous barking, accompanied by complaints from one or more residents, may, with a high degree of probability, lead to punishment for the owner’s omission: by failing to act diligently, he does not prevent the disturbance from occurring. Here, the presence of an expert is not necessary to assess exceeding the normal threshold of tolerability, where complaints and witness statements by one or more affected persons help form the judge’s conviction as to the offence. “The relevant evaluation must in any event be carried out using criteria as objective as possible, referring to the average sensitivity of persons living in the environment where the noises are perceived” (Criminal Division, Section III, judgment no. 3678/2005).

Cases of disturbance of the peace—beyond culpa in vigilando—are typically caused by night-time behaviours such as shouting and similar conduct, which often does not allow identification of the reasons and, certainly, does not allow easy identification of a “typical subject”.

The disturbance under Article 659 c.p., unless caused by the type of noisy work referred to in paragraph 2, must be understood in its broad sense and may easily be committed by any natural person who engages in the conduct described by the rule.

However, in practice, the most recurrent and verifiable situations are often directly linked to nightlife and night venues.