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 topic of fundamental importance in Italian criminal law: personal precautionary measures in relation to crimes of mafia-type association. In particular, the Court expressed itself on preventive custody in prison, establishing specific criteria that must be respected by the judge during the application of precautionary measures.

The Presumption of Adequacy of Preventive Custody

According to Article 275, paragraph 3, of the Code of Criminal Procedure, there exists a double presumption for individuals under investigation for crimes related to mafia-type association. The first is of a relative nature and concerns the existence of precautionary needs, while the second is of an absolute nature and implies that the measure of preventive custody in prison is the only one adequate to ensure the containment of the danger arising from the freedom of the accused.

  • Relative presumption: refers to the precautionary needs that must be assessed on a case-by-case basis.
  • Absolute presumption: implies that, in the absence of special circumstances, preventive custody in prison is the only measure deemed adequate.
CRITERIA - Under investigation for participation in a mafia-type association - Precautionary measure of preventive custody in prison - Presumption of adequacy - Existence - Derogability - Hypothesis. In terms of personal precautionary measures, the provision of Article 275, paragraph 3, of the Code of Criminal Procedure establishes, for individuals under investigation for the crime of participating in a mafia-type association, a double presumption, of a relative nature regarding the existence of precautionary needs and of an absolute nature concerning the adequacy of the only prison measure to contain them, which is only surpassable in the cases provided for in Article 275, paragraphs 4 and 4-bis, of the Code of Criminal Procedure, that is, when the recipient of the restriction demonstrates the need to care for children under six years of age or is affected by an illness incompatible with detention.

Derogations to the Precautionary Measure

It is important to emphasize that, although preventive custody in prison is considered the adequate measure, it can only be surpassed in particular circumstances. According to Articles 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 accused demonstrates that they have children under six years of age to care for.
  • When the accused is suffering from an illness that does not allow for detention in prison.

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

Conclusions

Judgment No. 24515 of 2023 offers important reflections on precautionary measures in cases of mafia-type association. The double presumption of adequacy of preventive custody in prison highlights the legislator's attention to the seriousness of such crimes, but at the same time, the provided derogations demonstrate an intent to guarantee the rights of the individual. It is essential that legal practitioners carefully consider these provisions in their practical application to ensure a fair balance between justice and the protection of human rights.

Bianucci Law Firm