Sul dolo eventuale nel dolo specifico, nota a Cassazione penale, sez. III, 19 marzo 2020 (dep. 8 aprile 2020), n. 12680

In the crime of fraudulent declaration through the use of invoices or other documents for non-existent operations, malice has a complex nature. The typical fact already includes an assumption of conduct among its elements, but since it is a crime with specific malice, the object of the malice is enriched by the event that the agent must pursue as a goal. The compatibility of potential malice and specific malice, which is affected by the principles of legality and offensiveness, depends, here and in general, on the internal links to the offence and therefore on the instrumentality of the basic fact with respect to the achievement of the objective. The precise definition of the object of malice is the basis for evaluating the intensity of its ingredients, representation and volition, to be rigorously ascertained through the use of indicators, an indispensable tool to escape the normatization of malice and for the reaffirmation instead of its psychological essence.