Reflections on Judgment Cass. pen. no. 37796 of 2020: Corruption and Accessory Penalties

The judgment of the Court of Cassation no. 37796 of December 30, 2020, represents an important moment of reflection on the discipline of accessory penalties, particularly concerning the perpetual disqualification from public office. The central issue concerns the compatibility of this measure with the principles of proportionality and individualization of punishment, enshrined in Articles 3 and 27 of the Italian Constitution.

The Context of the Judgment

The Court examined the appeal filed by R.A., a public official convicted of corruption. The judgment of the Court of Brescia, which imposed the penalty of perpetual disqualification, was challenged for violation of law. The defense lawyers argued that Article 317-bis of the Criminal Code, which provides for the automatic application of such a penalty in case of conviction to a sentence exceeding three years, is manifestly unreasonable and contrary to constitutional principles.

The rigidity of the sanctioning system and its indifference to the structural characteristics of punitive treatment outlined in the Constitution are amplified by the perpetual nature of the accessory penalty provided for by Article 317-bis of the Criminal Code.

Implications of the Judgment

The Court noted that the automatic application of perpetual disqualification does not allow for the calibration of the sanction to the gravity of the committed crime. In fact, the rule does not distinguish between conduct of different gravity that could fall under the same article of law. Such rigidity could be disproportionate, especially in cases of lesser disvalue.

It is important to note that the Court referred to several judgments of the Constitutional Court that highlight the importance of a flexible and proportionate sanctioning system. The accessory penalty, by its nature, must be modulated based on the gravity of the act and the personality of the convicted person.

• The rigidity of the perpetual accessory penalty is not compatible with the principle of rehabilitation of the offender.
• Sanctions must be personalized and not applied automatically.
• The question of legitimacy raised by the Court could lead to a review of the current discipline.

Conclusions

Judgment no. 37796 of 2020 of the Court of Cassation raises crucial questions about the balance between the need to guarantee public integrity and respect for the fundamental rights of the convicted. The question of constitutional legitimacy concerning Article 317-bis of the Criminal Code is an important step towards recognizing the need for a more humane and just sanctioning treatment, in line with the principles of proportionality and individualization provided for by our Constitution.