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misdemeanour and not to a crime), and if it has not been revoked because the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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