Commentary on Judgment No. 51407 of 30/11/2023: Reflections on the Differentiated Detention Regime

The judgment No. 51407 of November 30, 2023, issued by the Court of Cassation, represents a significant milestone in the Italian legal debate regarding the differentiated detention regime provided for by Article 41-bis of the penitentiary system. In this article, we will analyze the content of the ruling, with particular attention to the constitutional legitimacy issue raised and its practical implications.

The Regulatory Context and the Legitimacy Issue

The Court rejected the constitutional legitimacy issue related to Article 41-bis, paragraph 2, of the penal code, arguing that it was manifestly unfounded. The issue had been raised for alleged conflict with Articles 3, 27, and 117 of the Italian Constitution and with Article 3 of the European Convention on Human Rights (ECHR).

It is important to note that, following the amendments made to Article 4-bis of the penal code by the decree law of October 31, 2022, the presumption of dangerousness for life sentences for non-collaborative obstructive crimes has been transformed into a relative one. This change implies that the judge must now conduct a substantive assessment of requests for the granting of penitentiary benefits, rather than automatically applying the presumption of dangerousness.

Implications of the Judgment

The implications of the judgment are manifold and pertain to both the legal and practical realms. Among the key points, we can highlight:

  • The necessity for an individual assessment by the judge regarding the dangerousness of the convicted person, which could lead to a fairer application of penitentiary benefits.
  • The confirmation of the legitimacy of the differentiated detention regime, which continues to provoke debates at the political and social levels.
  • A possible change in approach by penitentiary authorities, which will need to adapt to these new legal interpretations.
01 President: DI NICOLA VITO. Rapporteur: MASI PAOLA. Defendant: LA BARBERA MICHELANGELO. Public Prosecutor: SERRAO D'AQUINO PASQUALE. (Partial Diff.) Rejects, TRIB. SUPERVISION ROME, 16/03/2022 563000 PREVENTIVE AND PUNISHMENT INSTITUTES (PENITENTIARY SYSTEM) - Differentiated detention regime pursuant to Article 41-bis of the penal code - Constitutional legitimacy issue for conflict with Articles 3, 27 and 117 of the Constitution and Article 3 ECHR. Manifestly unfounded - Reasons. The constitutional legitimacy issue of Article 41-bis, paragraph 2, of the penal code for conflict with Articles 3, 27, and 117 of the Constitution in relation to Article 3 ECHR is manifestly unfounded, as following the amendments made to Article 4-bis of the penal code by decree law of October 31, 2022, No. 162, converted, with modifications, by law of December 30, 2022, No. 199, the presumption of dangerousness of the life-sentenced individual for non-collaborative obstructive crimes has become relative, with the judge required to assess, in substance, the requests for the granting of penitentiary benefits.

Conclusions

In conclusion, judgment No. 51407 of November 30, 2023 marks an important step in the protection of the rights of detainees and in the regulation of the differentiated detention regime. The meritocratic evaluation of requests for the granting of penitentiary benefits represents progress towards a more just and humane penal system, in line with the principles of the Constitution and the ECHR. However, constant monitoring of these new applications remains essential to ensure that the rights of detainees are always respected.

Bianucci Law Firm