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Conditional suspension of the sentence


The conditional suspension of the sentence is inspired by the Anglo-Saxon probation model and by the Belgian sursis model, and has been part of the Italian Code since 1904.

This option, which was originally conceived as an instrument to replace short prison sentences (in the original version of the Rocco Code it could only be applied for prison sentences of less than six months), can nowadays be applied for longer sentences.

In order to be granted this benefit two requirements are currently necessary. One of them is of an objective nature and necessitates that the offender has received a concrete sentence (i.e. the actual sentence imposed by the judge and not the maximum sentence prescribed for the offence) of not more than two years of imprisonment, except in certain cases. The second requirement is of a subjective nature and necessitates that the judge assess whether the offender will commit other offences in the future or not. This prognosis, on which the conditional suspension of the sentence should be based, is in reality completely ignored. In fact, each time a judge imposes a sentence of not more than two years, the suspension of the sentence is automatically applied.

Five years after the suspension of a sentence (which can be reduced to two years if the sentence refers to a misdemeanour and not to a crime), and if it has not been revoked because the offender has committed another offence or has received another conviction which, added to the first one, exceeds two years, the offence is considered as cancelled.

It should be stressed that, following the interventions of the Constitutional Court, the regulations regarding this measure were modified to allow not only first time offenders to enjoy this benefit, but also those who have already received a first sentence but who, having received a conditional suspension, have received a second sentence which – added to the first one – does not exceed two years of imprisonment.

Only those offenders who benefit from this measure for the second time must by law accept at least one of the compensatory obligations (obligation to restore the damage caused, payment of compensation for damage, elimination of the dangerous or harmful effects of the offence). Although these are envisaged by law, a judge may decide whether or not to impose them and almost never does so when conceding a suspension of the sentence.

This appears to be the major limit of the current law regarding the suspension of the sentence, as legal scholars have noted. It differs from similar measures envisaged by other laws in that it has a more or less zero sanctioning value, at least when it is granted for the first time. It has therefore become a kind of automatic judicial clemency and has increasingly lost its social rehabilitation purpose. The situation appears even more negative if we consider that the possibility to apply a conditional suspension for short-term prison sentences (see the above paragraph) has hindered the introduction of new forms of sanctions in the Italian system.

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