Commentary on Judgment No. 24515 of 2023: Precautionary Measures and Mafia-Type Association

Judgment No. 24515 of January 19, 2023, issued by the Court of Cassation, addresses a matter of fundamental importance in Italian criminal law: personal precautionary measures in relation to mafia-type association offenses. In particular, the Court ruled on pre-trial detention, establishing specific criteria that the judge must adhere to when applying precautionary measures.

The Presumption of Adequacy of Pre-Trial Detention

As established by Article 275, paragraph 3, of the Code of Criminal Procedure, for defendants in offenses connected to mafia-type association, there is a double presumption. The first is relative and concerns the existence of precautionary needs, while the second is absolute and implies that pre-trial detention is the only adequate measure to contain the danger arising from the defendant's freedom.

• Relative presumption: refers to precautionary needs that must be assessed on a case-by-case basis.
• Absolute presumption: implies that, in the absence of specific circumstances, pre-trial detention is the only measure deemed adequate.

CRITERIA - Defendant for participation in a mafia-type association - Precautionary measure of pre-trial detention - Presumption of adequacy - Existence - Derogability - Hypotheses. Regarding personal precautionary measures, the provision of Article 275, paragraph 3, of the Code of Criminal Procedure establishes, for defendants in the offense of participation in a mafia-type association, a double presumption: a relative one concerning the existence of precautionary needs and an absolute one regarding the adequacy of imprisonment alone for containing them. The latter can only be overcome in the cases provided for by Article 275, paragraphs 4 and 4-bis, of the Code of Criminal Procedure, i.e., where the subject of the restriction demonstrates the need to care for their children under the age of six or suffers from an illness incompatible with detention.

Derogations from Precautionary Measures

It is important to emphasize that, although pre-trial detention is considered the adequate measure, it can only be overcome in specific circumstances. Pursuant to Article 275, paragraphs 4 and 4-bis of the Code of Criminal Procedure, derogations are provided that can be applied in the following cases:

• When the defendant demonstrates they have children under the age of six to care for.
• When the defendant suffers from an illness that does not permit detention in prison.

These derogations represent a balance between the need to protect society and respect for the fundamental rights of the defendant.

Conclusions

Judgment No. 24515 of 2023 offers important insights into precautionary measures in cases of mafia-type association. The double presumption of adequacy of pre-trial detention highlights the legislator's attention to the seriousness of such offenses, but at the same time, the provided derogations demonstrate an intent to guarantee individual rights. It is crucial for legal practitioners to carefully consider these provisions in their practical application to ensure a just balance between justice and the protection of human rights.