Admission to probation under the supervision of social services is permitted under Italian legal framework, provided that its execution takes place in a foreign state that is a member of the European Union, which has implemented the Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions, and where the convicted individual has a legal and habitual residence.
Court of Cassation
First Criminal Division, hearing on November 21, 2024 (filed December 30, 2024), no. 47544
Findings of Fact
1. By the appealed ruling, the Turin Supervisory Court rejected the application for probation under Article 47 of Law no. 354 of July 26, 1975 (Penitentiary Ordinance) and declared inadmissible the request for house arrest submitted on behalf of B.M. The Court cited the absence of residence or domicile in Italy, which prevented any investigation to assess whether the conditions for granting the requested measure were met, coupled with the convicted person’s alleged lack of cooperation. Furthermore, the absence of domicile in Italy precludes house arrest.
2. B.M., through their legal counsel, attorney C.F., appeals for the annulment of the contested decision, citing a violation of law concerning Articles 47 and 47-ter of the Penitentiary Ordinance and Legislative Decree no. 38 of 2016, implementing Council Framework Decision 2008/947/JHA. They also allege inadequate reasoning, as the Supervisory Court failed to consider the documentation provided by the defense and the detailed application submitted on April 11, 2024. The Court’s rejection, based on illogical claims of non-cooperation and absence of domicile in Italy, overlooks the appellant’s stable residence abroad for many years.
Legal Considerations
1. The appeal is well-founded.
2. The Supervisory Court did not clarify what constituted “non-cooperative” behavior with the UEPE (Office for External Penal Execution), considering only one meeting had been scheduled, which the appellant attended despite health conditions and residence abroad. Furthermore, the Court failed to explain how this alleged behavior impacts the prognosis regarding the suitability of the requested measure to contribute to rehabilitation and prevent recidivism.
The lack of reasoning is further compounded by other factors enumerated by the Court, which, pending substantive evaluation by the supervisory judiciary, appear to be positive indicators: payment of a sum to settle the civil party’s claims, the modest severity of the sentence, which the Court identified as the sole prior offense of the appellant, the dated nature of the conduct (from 2012), and the absence of pending proceedings.
2.1. The contested ruling fails to correctly apply the principle established by this Court (e.g., Cassation, First Division, no. 4483 of October 27, 1993, Bonicoli, RV. 195797-01), which holds that in matters of probation under the supervision of social services, a lack of reasoning exists when the rejection is based on reasons that are not explicitly outlined, even briefly, through concrete circumstances showing the unsuitability of the requested measure to aid the offender’s rehabilitation and prevent recidivism.
The Court’s reasoning does not permit the review of the judge’s rationale nor does it substantiate the rejection of the proposed extramural rehabilitation path on unspecified grounds.
3. The ruling is also flawed under another related aspect.
3.1. Established jurisprudence has long clarified that “in matters of alternative measures to detention, following the entry into force of Legislative Decree no. 38 of February 15, 2016, admission to probation under social services supervision is permitted for execution in a foreign EU state where the convicted individual has legal and habitual residence, in accordance with the provisions of the aforementioned legislative decree” (Cassation, First Division, no. 20977 of June 15, 2020, Arrighi, RV. 279338).
In a similar case, jurisprudence has stated that “the execution of probation under social services supervision can take place in the EU member state where the convicted individual resides (in this case, Germany), provided that the state has implemented Council Framework Decision 2008/947/JHA of November 27, 2008, on the application of the principle of mutual recognition to judgments and probation decisions with a view to supervision measures and alternative sanctions, implemented in Italy by Legislative Decree no. 38 of February 15, 2016. Probation is considered a ‘substitute sanction’ under Article 2, letter e) of this decree, as it imposes obligations and issues prescriptions compatible with those listed in the subsequent Article 4 and constitutes the content of the alternative treatment to imprisonment” (Cassation, First Division, no. 16942 of May 25, 2020, Mancinelli, RV. 279144).
3.2. From this perspective, the request to execute the alternative measure in Denmark, where the appellant has resided for many years with their spouse and children, encounters no legal obstacles, yet the Court failed to even examine it.
The provisions of Legislative Decree no. 38 of 2016 establish that in any case, the decision to be executed abroad must be made by the Italian state authorities, with subsequent transmission of the application order to the foreign state where the measure is to be enforced.
In this case, the Supervisory Court, which failed to review the application, should have verified the availability of the foreign state authorities that implemented the aforementioned Framework Decision to carry out the alternative measure and conducted all further necessary assessments.
Therefore, the contested order must be annulled with referral for a new ruling to the Turin Supervisory Court, which, after obtaining the necessary additional information from the competent authorities and verifying the convict’s concrete willingness to cooperate, shall proceed to the appropriate determinations with full discretion in its substantive evaluations.
Decision
The Court annuls the contested order with referral for a new ruling to the Turin Supervisory Court.