Special surveillance and art. 75 Legislative Decree 159/2011: the Supreme Court n. 14346/2025 clarifies the obligation to re-evaluate dangerousness

The First Criminal Section of the Supreme Court of Cassation, with judgment no. 14346 filed on April 11, 2025, intervenes once again on the delicate balance between prevention and individual guarantees. The ruling, destined to profoundly impact the practice of surveillance courts, has annulled without referral the conviction imposed on I. P. for violating the prescriptions of special surveillance, finding the lack of an essential prerequisite for the measure: the *ex post* re-evaluation of social dangerousness, mandated by the Constitutional Court judgment no. 162/2024.

Reference regulatory framework

Legislative Decree 159/2011 (Anti-Mafia Code) governs personal preventive measures, including special surveillance (art. 14). Art. 75, on the other hand, criminalizes the conduct of those who violate the prescriptions imposed on them. Following the constitutional reform of 2024, the Constitutional Court has mandated that, once the measure is suspended due to subsequent detention, its eventual reinstatement must be preceded by an assessment of the persistence of current dangerousness, without the previous threshold of two years of continuous detention being considered decisive.

The legal principle affirmed

In matters of preventive measures, the reinstatement of a measure suspended due to the detainee's subsequent detention presupposes, following the Constitutional Court judgment no. 162 of 2024, that the current and persistent nature of social dangerousness must be re-evaluated even if the detention has lasted for less than two years. Therefore, when this is not done, the lack of an effectiveness condition for the preventive measure precludes the possibility, against the person who has violated its prescriptions, of the crime referred to in art. 75 of Legislative Decree of September 6, 2011, no. 159.

The Court emphasizes that special surveillance cannot operate on "autopilot": a constant update of the dangerousness assessment is required. In the absence of such verification, any violation of the prescriptions does not constitute a crime, as the prerequisite of the measure's legitimacy is missing. This is a strong reminder to lower courts not to overlook the rehabilitative impact of detention, even if brief.

Operational implications for defense counsel and judges

The decision requires a change in perspective for those working in the field:

• Technical defense: it becomes crucial to object to the absence of a re-evaluation of dangerousness both in the execution phase and in opposition to oral warnings.
• Prosecution and judicial police: will have to provide updated and specific elements justifying the persistence of conduct indicative of dangerousness, avoiding mere standardized requests for reinstatement.
• Prevention judges: are called upon to provide concrete reasoning, considering the individual's potential in-house treatment path.

Comparison with previous case law

The Supreme Court continues the path laid out by rulings no. 23926/2023 and 29379/2024, but expands their scope by removing the two-year time limit. This strengthens the trend that combines the protection of the community with respect for art. 13 of the Constitution and art. 5 of the ECHR, preventing automatic applications of restrictive measures.

Conclusions

Judgment no. 14346/2025 represents a decisive step forward towards a prevention system more aligned with the principles of legality and proportionality. For legal professionals, it opens up a new procedural space to challenge the effectiveness of measures reinstated without adequate investigation. For those subjected to these measures, it means being able to count on a less formal monitoring that is more attentive to their actual evolution. This is a strong signal: prevention remains essential, but it cannot disregard the respect for fundamental guarantees.