Types of sanctions
The Italian Criminal Code makes a
fundamental differentiation between criminal sanctions, on the other hand, and
between penalties and security measures (Misura di sicurezza), on the other.
The former, which have a set maximum duration, are applied to people recognised
as being guilty of an offence. The latter, which do not have a fixed duration,
are applied to socially dangerous people, i.e. people who, on the basis of a
prognosis, are considered likely to commit other crimes in the future. In their
case, the security measure applied can only be removed when they are no longer
considered socially dangerous.
Security measures cannot be applied
without certain objective grounds, such as the commission of an offence or of a
quasi offence (i.e. an instigation to commit an offence or an agreement to
commit an offence without actually doing so), as envisaged by Article 115 of
the Criminal Code. In other words, the perpetrator must have intended to commit
a crime, but the act did not constitute an offence under the law (Article 49 of
the Criminal Code).
The original version of the Rocco
Code (dated 1930) attributed distinct and autonomous functions to penalties and
security measures. Penalties had a general preventive function, while security
measures performed a specific preventive function in that they neutralised
socially dangerous persons. If the perpetrator of a crime was also considered
socially dangerous, both of the penal sanctions were applied.
The above-mentioned system is called
the “double track” system because it is characterised by the presence of two
types of sanctions that are quite different from each other from a conceptual
point of view. Penalties presuppose the guilt of the perpetrator of a given
crime (with the exception of the hypothesis of objective responsibility which
is nowadays considered unconstitutional) and are of a fixed duration. Security
measures presuppose the social dangerousness of the offender and do not
envisage a fixed maximum duration. This complex sanctioning system in the Rocco
Code can be explained by the fact that the Code attempted to reach a compromise
between the major criminal law schools of that time. The supporters of the
“classical” school wanted the Code to focus on the retributive role of the
punishment, and claimed that it should correspond to the injury caused by the
offence. The supporters of the "positivist" school were radically
opposed to the concept of guilt and insisted that criminal law should focus on
the level of dangerousness of certain categories of criminals and therefore aim
at removing the threat they pose to society.
It is unanimously sustained that the
compromise reached with the double track system has long been facing an
irremediable crisis. When the Constitution entered into force in 1948,
conferring an educational function to punishment, (Article 27, paragraph 3 of
the Constitution) the difference between the functions of the two types of
punishments was lost as the Constitution conferred a special preventive and
educational role to punishments. Furthermore, it has long been noted that at
least with respect to individuals of sound mind, and thus guilty, the
modalities of execution of security measures are the same as those of
punishments, and that, consequently, their imposition in addition to
punishments serves the sole purpose of duplicating the sanction, with the
serious limit that the maximum duration of a security measure is not
determined. The postulates of the positivist school on which security measures
are based have been strongly criticised. However, the growing doubts about the
effectiveness and validity of personality assessments explain why they have
been decreasingly imposed on defendants. For these reasons, our prevailing
doctrine urges that this double track system be suspended, and that contrary to
what is happening now, security measures - in which treatment aspects should prevail
over custodial ones - be applied only to individuals of "unsound
mind".
Penalties are, in turn, divided into
main and collateral penalties. The main penalties either restrict personal
liberty with the length of the sentence being decided by the judge or consist
of fines. The collateral penalties are applied automatically when
responsibility for the crime has been ascertained and they are inflicted in
addition to the main sentence. They have a special preventive and
incapacitating function. In other words, they aim to prevent the offender from
repeating the offence. Thus, for example, numerous crimes committed by public
administration officials are punishable with a permanent or temporary
disqualification of the offender from carrying out his/her public function. In
the same way, expulsion from the armed forces is envisaged as a sanction for
many military crimes involving misuse of power or of duties.
Italy has been one of the countries
that has historically adopted an abolitionist policy with respect to the death
penalty. In fact, the Grand Duchy of Tuscany, one of Italy’s states before its
unification, was one of the first states to abolish the death sentence, with
its Criminal Law Code of 1786. With the Zanardelli Code of 1889, the first
criminal justice code to be approved after the proclamation of the Reign of
Italy, the elimination of the death penalty was extended over the entire
territory, except for certain military offences provided for in case of war.
With the advent of Fascism the death penalty was reintroduced, and was an
expression of the authoritarian ideology expressed by that regime. When the
Fascist regime was overthrown in 1944, this extreme form of punishment was
removed from the Italian law system, again with the exception of certain cases
provided for by the military law system during wars. This was later confirmed
in the original version of the Constitution (in the final paragraph of Article
27) which states that: “the death penalty is not admitted, except for the cases
provided for by the military laws”.
The death penalty has not been
applied since the end of Fascism, since it was considered in conformity with
the Constitution only in a limited number of cases linked with war, and the
Italian Republic has been involved in no conflicts since that period. In 1994,
Law 589 completely abolished the death penalty by removing even the exceptions
envisaged in case of war. Furthermore, Article 27 of the Constitution was
recently modified so as to radically exclude any possibility whatsoever of
executing capital punishment.
The most severe penalty envisaged by
the Italian criminal law system is the life sentence, i.e. a permanent sentence
equal to the duration of the life of the sentenced person. It was introduced to
substitute the death penalty with the aim of making the sanctioning system more
humane. When the death penalty was eliminated from the Criminal Law Code in
1944, it was replaced by the life sentence in those cases for which the death
penalty was originally envisaged.
Doubts regarding the compatibility
between the life sentence and the principles of the Constitution were raised,
particularly with respect to Article 27, paragraph 3, which establishes the
rehabilitation function of convictions. These were incompatible with life sentences
and other permanent sentences. Nevertheless, the Constitutional Court rejected
these doubts with its decision No. 264 of 1974, which asserted that the aim of
that penalty is not only to rehabilitate offenders, but also to protect society
and neutralise the threat posed by certain offenders for an indefinite period.
Even the electorate, when asked to
express an opinion on the life sentence by means of a referendum, voted in
favour of keeping the sanction. Nevertheless, many legal and political experts
continue to doubt its legitimacy from the constitutional point of view and hope
that it will be abolished. These include the current central-left government:
its Minister of Justice, the Hon. Diliberto, affirmed on many occasions that
the abolition of the life sentence was one of the priority aims of his
government’s law policy.
In the light of these proposals made
by the government, it must be noted that even the opponents of permanent
penalties have pointed out that they have been increasingly modified. Prisoners
serving life sentences can be granted the conditional suspension of their
sentence (see section 9.2) after twenty-six years of imprisonment, placed in
semicustody or granted early release. This should help to solve the problem
relating to the incompatibility between a life sentence and the rehabilitation
function of penalties as provided for by the Constitution, without completely
abolishing the sentence, at least in theory.
As far as the other main penalties
are concerned, it should be recalled that those depriving a person of his/her
liberty - i.e. "reclusione" in the case of crimes and
"arresto" in the case of misdemeanours – are of a fixed duration
ranging from a minimum of fifteen days to a maximum of twenty-four years for
crimes ("delitti"), and from a minimum of five days to a maximum of
three years in the case of misdemeanours ("contravvenzioni") .
Originally, if a fine was not paid
it was converted into a custodial penalty. This provision was declared
unconstitutional, however, in decision No. 131 of 1979 of the Constitutional
Court which established that there is no homogeneity and interchangeability
between personal liberty and personal possessions, which are completely
incompatible with one another. The legislator responded to this intervention by
converting any pecuniary penalty that was not respected into controlled
release, upon the request of the convicted person, or into unpaid socially
useful work for public or private entities. Controlled release involves the
application of strict limitations on a person’s freedom of movement, together
with a series of strict rules such as the prohibition to leave the area of
residence, the obligation to go to the local police station at least once a
day, the suspension of one's driver's licence and the confiscation of one's
passport. The conversion of this penalty is done by calculating 75,000 lire or
a fraction of 75,000 lire for every day of controlled freedom, and 50,000 lire
for each day of socially useful work.
In 1981, Law 689 introduced
penalties to replace short custodial sentences. These were aimed at preventing
a person sentenced to a short term of imprisonment from actually passing time
in prison, thus protecting him/her from its criminogenic influence. The
substitute penalties can be applied, in certain conditions, only if the
custodial sentence to be served does not concretely exceed one year (i.e.
reference is made to the actual sentence imposed by the judge and not to the
maximum penalty prescribed by the law for a given offence).
In addition to controlled release
and socially useful work in substitution of the prison sentence, which have
already been described above, another substitutive penalty is semidetention.
This penalty obliges the offender to spend a period of at least ten hours a day
in prison.
These penalties have been rarely
applied, however, probably because the conditional suspension of the sentence
is preferred (see the following paragraph) which, as opposed to substitutive
penalties, has an almost non-existent sanctioning element, at least as far as
first time offenders are concerned.
On the contrary, the application of
alternative measures to imprisonment has been widely used in the Italian
system. These were introduced by Law 354 of 1975 within the framework of an
international process to create alternative sanctions to detention, with the
aim of actually ensuring the rehabilitation role of penalties as envisaged by
the Constitution.
The requirements for the application
of these measures together with their contents were later extended and modified
by Law 663 of 1986 (the so-called Gozzini Law, named after the senator who
proposed it) and by Law 165 of 1998 (the so-called Simeone Law, named after the
parliamentarian who proposed it).
The most significant alternatives to
imprisonment include probation, based
on the Anglo-Saxon model, house arrest,
semicustody (semilibertà ) and early
release.
Probation
can be applied to an offender who has received a prison sentence of less than three
years or who still has three years to serve in prison. The period of probation
must correspond to the sentence to be served, or remaining to be served. On the
basis of the personality tests (following the amendments introduced by Law 165
of 1998, it is no longer necessary for the tests to be conducted in a prison -
thus avoiding the need to stay in prison), and when there is reason to believe
that the measure will contribute towards rehabilitating the offender, the
latter has to carry out activities under the control of the social services.
The social services control the behaviour of the person and assist in his/her
reintegration into society. If this alternative measure proves positive, the
rest of the penalty is cancelled. If it fails, the measure is revoked and the
offender must serve the rest of his/her sentence in prison.
House arrest
can be applied to persons who have to serve a prison sentence not exceeding
three years (which is increased to four years for some categories such as
pregnant women, people aged over sixty, minors aged under twenty), even if it
constitutes the remainder of a longer sentence. This measure is applied
whenever it is not possible to assign the person to the social services.
Semicustody
consists in giving the offender the possibility to spend a part of the day
outside prison in order to participate in educational, work or other activities
that are useful for his/her social rehabilitation. Only those offenders who
have already served at least half of the sentence are granted this alternative
measure.
Early release
is granted to those offenders that have participated in a re-educational
course, and consists of a reduction of 45 days for every six months of
detention. This reduction can also be applied to prisoners serving life
sentences although, taking into account the twenty-year time limit needed in
order to be able to be granted conditional release, they can only be released
after twenty-one years of imprisonment.
Special mention should be made of a
specific alternative measure, probation,
which is used for drug addicts and alcoholics. This measure differs from the
basic form of probation in various respects. First of all, it can substitute a
prison sentence or the remainder of a prison sentence of four and not three years,
as is normally the case. Second, this measure can only be applied to drug
addicts or alcoholics who are taking part or have requested to take part in
therapeutic treatment. In this way, the offender is allowed to chose between
serving the prison sentence or undergoing treatment.
The Italian Criminal Code provides
certain minimum and maximum time limits for sentences. This means that a judge
is not free to decide on the length of the sentence but is bound by the law.
Article 133 establishes parameters and
classifies them into two categories according to the seriousness of the offence (taking into consideration the type of
offence committed, the seriousness of the damage caused or of the threat posed
and the level of guilt) and the capacity
of the offender to commit an offence (including the offender’s reasons for
committing the offence, his/her precedents and life conditions and his/her
behaviour before committing the offence). This was the result of an attempt to
reach a compromise between the classical and the positivist school in 1930. In
fact, the criteria used for deciding on the length of the sentence, (i.e. the
type of offence committed, its seriousness and the level of guilt) fully comply
with the classical school’s concept of criminal law. At the same time, the
criteria relating to the offender’s capacity to commit an offence and above
all, his/her social dangerousness, clearly respond to those advocated by the
positivist school.
It was probably this attempt at
reconciliation between the two schools that led to the absence of an effective
and binding guide regarding the types of sanctions to be imposed. In fact, the
legal scholars are unanimous on noting the de
facto freedom of the judge to decide on the length of the sentence to be
imposed. The judge often resorts to formulations such as “a sentence of … years
is considered appropriate”. These formulations have not been subjected to the
judgement of the Court of Cassation, probably because the contradictory
criteria envisaged by Article 133 of the Criminal Code do not allow the
lawmaker to obtain a precise picture of the functions of the sanctions (i.e. of
their main function). Therefore, it is not possible to list them according to
their seriousness.
It should also be stressed that
neither is the Constitution able to provide a sufficiently clear outline of the
functions of the penalties in the Italian law system and list them according to
their level of seriousness. As the legal scholars have pointed out, in the
light of the re-educational aim of the sentence established by Article 27,
paragraph 3 of the Constitution, the special preventive and social
reintegration function of these penalties should prevail. From this it has been
deduced that, after excluding any generally preventive aspects when deciding on
the length of the penalty and taking into consideration its essentially
protectionist function, a judge should apply the lighter penalty envisaged for
both aspects. Although the interpretation giving the measurement of the penalty
a constitutional aspect is interesting, it has not yet been included in any
Code reform projects, nor has it been discussed by the Court of Cassation or by
the Constitutional Court.
Security measures are divided into
personal and property measures. The first type of measure includes the
following: the assignment of offenders to prison farms or work houses, their
recovery in health and custodial houses, judicial psychiatric hospitals or
reform houses, controlled freedom, prohibition to reside in one or more towns
the prohibition to frequent public houses or places in which alcohol is served
and the expulsion of foreigners from the country. The second type of security
measures includes bail for good behaviour and confiscation.
These security measures are imposed
on those perpetrators of a crime or quasi-crime that are considered socially
dangerous because they will probably commit other offences in the future. The
length of the measure imposed is usually indefinite: in fact, only the minimum
length is set. If, at the end of the fixed period, the judge believes that the
person is still socially dangerous, he/she can decide to impose another minimum
period. At the end of this second period, the behaviour of the offender is
examined again, and so on.
The judge has power of discretion
when deciding on the type of security measure to be applied. Nevertheless, some
measures are specifically envisaged for certain types of perpetrators of
crimes. Thus, mentally disabled offenders are sent to a judicial psychiatric
hospital, while minors are sent to reformatories.
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