Commentary on Judgment No. 51407 of 30/11/2023: Reflections on the Differentiated Detention Regime
Judgment No. 51407 of November 30, 2023, issued by the Court of Cassation, represents a significant step in the Italian legal debate concerning the differentiated detention regime provided for by Article 41-bis of the prison regulations. In this article, we will analyze the content of the judgment, with particular attention to the question of constitutional legitimacy raised and its practical implications.
The Regulatory Context and the Question of Legitimacy
The Court rejected the question of constitutional legitimacy concerning Article 41-bis, paragraph 2, of the criminal code, holding that it was manifestly unfounded. The question had been raised due to alleged conflict with Articles 3, 27, and 117 of the Italian Constitution and Article 3 of the European Convention on Human Rights (ECHR).
It is important to note that, following the amendments made to Article 4-bis of the prison regulations by Decree-Law of October 31, 2022, the presumption of dangerousness for those serving life sentences for non-cooperating obstructive crimes has been transformed into a relative presumption. This change implies that the judge must now conduct a merits-based assessment of applications for the granting of prison benefits, rather than automatically applying the presumption of dangerousness.
Implications of the Judgment
The implications of the judgment are manifold and concern both the legal and practical levels. Among the salient points, we can highlight:
- The necessity of an individual assessment by the judge regarding the dangerousness of the convicted person, which could lead to a more equitable application of prison benefits.
- The confirmation of the legitimacy of the differentiated detention regime, which continues to spark debate at the political and social levels.
- A possible change in approach by the prison authorities, who will have to adapt to these new legal interpretations.
01 President: DI NICOLA VITO. Rapporteur: MASI PAOLA. Rapporteur: MASI PAOLA. Defendant: LA BARBERA MICHELANGELO. Public Prosecutor: SERRAO D'AQUINO PASQUALE. (Partial Dissent) Rejects, SUPERVISORY COURT ROME, 16/03/2022 563000 INSTITUTIONS FOR PREVENTION AND PENALTY (PRISON REGULATIONS) - Differentiated detention regime under art. 41-bis prison regulations - Question of constitutional legitimacy for conflict with arts. 3, 27 and 117 of the Constitution and art. 3 ECHR Manifestly unfounded - Reasons. The question of constitutional legitimacy of art. 41-bis, paragraph 2, prison regulations, for conflict with arts. 3, 27 and 117 of the Constitution in relation to art. 3 ECHR, is manifestly unfounded, given that, following the amendments made to art. 4-bis prison regulations by decree-law of October 31, 2022, no. 162, converted, with modifications, by law of December 30, 2022, no. 199, the presumption of dangerousness of a person serving a life sentence for non-cooperating obstructive crimes has become relative, with the judge being required to assess, on the merits, applications for the granting of prison benefits.
Conclusions
In conclusion, judgment No. 51407 of November 30, 2023, marks an important step in the protection of detainees' rights and in the regulation of the differentiated detention regime. The merits-based assessment of applications for prison benefits represents progress towards a more just and humane penal system, in line with the principles of the Constitution and the ECHR. However, constant monitoring of these new applications remains essential to ensure that the rights of detainees are always respected.
