Who is convicted in Italy can be admitted on probation under the supervision of social services in one of the States that has implemented FD 947/08.
On the basis of the new discipline introduced by Legislative Decree, 15 February 2016, No. 38, which implemented Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to supervision, probation measures and alternative sanctions the convicted person may be placed on probation with social services in one of the States that has implemented that Framework Decision.
Italian supreme Court
(Court of Cassation)
1st Criminal Section
Num. 5469 Year 2022
Date of Hearing: 11/01/2022
on the appeal brought by:
CG born in ** on **/1990
against the order of 25/05/2021 of the TRIB. SURVEILLANCE of REGGIO CALABRIA
having heard the report of Counselor DOMENICO FIORDALISI;
having read and heard the conclusions of the Public Prosecutor
The Attorney General, Assunta Cocomello, asks for the rejection of the appeal.
HELD IN FACT
1. GC appeals against the order of May 25, 2021 of the Reggio Calabria Surveillance Court, which granted the alternative measure to detention of probation to the social service, pursuant to article 47 of Law no. 354 of July 26, 1975, in relation to the remaining sentence of two months and eleven days of imprisonment referred to in the measure for the execution of concurrent sentences of the Attorney General's Office at the Reggio Calabria Court of Appeal.
The Surveillance Court, however, rejected the request of the convicted person to be able to execute this measure in Poland (the country in which he resides and lives with his family), pointing out that the residual sentence was lower than the minimum allowed by art. 6 of Legislative Decree no. 38 of February 15, 2016 for the execution of the measure in the countries of the European Union, and made the benefit granted subject to the return of the convicted person to the territory of the State within one year from the notification of the measure of acceptance.
2. The appellant complains of non-compliance and erroneous application of criminal law or other legal norms, which must be taken into account when applying criminal law, and violation of procedural norms established under penalty of nullity, with reference to articles 47 of the Penal Code, 1, 3, 4, paragraph 1, 23 Const. and a defect in the motivation of the contested order, because the Surveillance Court failed to consider that the convicted person had demonstrated that he had established a family unit in Poland, that he was the beneficiary of a permanent employment contract in Poland and that he was permanently settled there. The judge of merit, moreover, would have subordinated the concession of the benefit to the return of the convict in Italy within a year from the notification of the measure in a contradictory way with respect to the prescription not to move away from the Municipality of Sant'Alessio dì Aspromonte if not for exclusively working reasons.
CONSIDERED IN LAW
1 It should be noted that the principle according to which the offices of external criminal execution are deputies to carry out their activities only in the national context is outdated since, due to its specific nature, such activity would not be included among the state functions exercisable by consular offices (among many: Sez. 1, no. 45585 of November 24, 2010, Scozzari, Rv. 249172 and in a conforming sense Sez. 7, no. 34747 of December 11, 2014, dep. 2015, Calanna, Rv. 264445; Sez. 1, no. 18862 of March 27, 2007, Magnani, Rv. 237363; Sez. 1, no. 46022 of October 29, 2004, Bravo, Rv. 230160; Sez. 1, no. 3278 of April 28, 1999, Di Taranto, Rv. 213724; Sect. 1, no. 5895 of October 26, 1999, Ceruti, Rv. 215027).
Recently it has been affirmed by the jurisprudence of legitimacy (Sez. 1, no. 16942 of 25/05/2020, Mancinelli, Rv. 279144), the opposite interpretative solution on the basis of the new rules introduced by the legislative decree, February 15, 2016, no. 38, which implemented Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to supervision, probation measures and alternative sanctions.
In fact, following the entry into force of this legislative decree, it was considered that the convicted person can be admitted on probation under the supervision of social services in one of the States that has implemented this framework decision (Sez. 1, no. 15091 of 16/5/2018, dep. 2019, Rv. 275807).
This is because probation under supervision of social services, as an alternative measure to imprisonment, must be considered assimilable, beyond the literal fact, to a "substitutive sanction" as described by art. 2, letter e), legislative decree no. 38 of 2016, that is, to a sanction (measure) that imposes obligations and imparts prescriptions compatible with those listed in the subsequent art. 4 and that usually constitute the content of the "alternative treatment to prison".
Obligations and prescriptions aimed, on the one hand, at promoting the re-socialisation of the offender through the imposition of rules of conduct and the maintenance of relations with the Social Service, as well as prescriptions of solidarity and, on the other hand, at neutralising the factors leading to recidivism through the imposition of obligations and prohibitions concerning the establishment of a stable abode, freedom of movement, the carrying out of activities, the frequentation of certain persons who may favour the commission of other offences, the frequentation of premises, the possession of weapons, etc.
However, art. 6 of Legislative Decree no. 38 of 2016 short sentences (in this case that of 2 months and 11 days of imprisonment) from being necessary the subject of alternative measures to be carried out abroad.
This is a choice of criminal policy that the legislator has legitimately made with an assessment of opportunity, which cannot be overcome by the judge.
There is, therefore, a temporal obstacle that prevents the use of the invoked alternative treatment to prison in a foreign country, such as Poland.
2. The rejection of the appeal is followed, pursuant to art. 616 of the Code of Criminal Procedure, by an order that the appellant pay the costs of the proceedings.
Dismisses the appeal and orders the appellant to pay the costs of the proceedings.
Thus decided 1'11/01/2022 - filing 16.02.2022