Therapeutic Custody and Semi-Detention: Cassation No. 12699/2025 Clarifies the Two-Year Limit

With ruling 12699/2025, the First Criminal Section of the Court of Cassation annulled with referral the order of the Florence Surveillance Court which had denied therapeutic custody to an inmate sentenced to the substitute penalty of semi-detention, deeming applicable the limit of two years of sentence served as provided for by art. 67, paragraph 2, law 689/1981. The Court instead affirmed that this barrier does not extend to the hypothesis governed by art. 94 Presidential Decree 309/1990. Let's analyze the motivations of the Supreme Collegium and the practical implications for legal professionals.

The Regulatory Framework

Presidential Decree 309/1990 (Consolidated Law on Narcotic Drugs) provides, in art. 94, for therapeutic custody: an alternative measure to detention aimed at the recovery of drug or alcohol addicts. In parallel, law 689/1981 regulates substitute penalties and, in art. 67, paragraph 2, introduces a limit: probation to social services can only be granted after serving at least two years.

The interpretative knot arises when a person sentenced to semi-detention (substitute penalty ex artt. 66 et seq. law 689/1981) requests to switch to therapeutic custody. The Florence Court held that art. 67, paragraph 2, also acted as a barrier to this different measure. The Cassation, however, denies the extension of a limit considered exceptional.

The Ruling and its Meaning

In matters of alternative measures to detention, for the acceptance of the request for therapeutic custody pursuant to art. 94 Presidential Decree of October 9, 1990, n. 309, submitted by a person sentenced to the substitute penalty of semi-detention, the limit of two years of sentence served provided for by art. 67, paragraph 2, law of November 24, 1981, n. 689, does not apply, given the exceptional nature of this provision, which prevents its extensive application to cases not expressly provided for.

The Court qualifies art. 67, para. 2, as an exceptional provision, therefore not subject to analogical application (art. 14 of the preliminary provisions). If the legislator intended to impose a time constraint only for 'ordinary' probation, this condition cannot be extended to therapeutic custody, which has a different rationale: the treatment of addiction for the protection of the inmate and the community. The principle of individualization of punishment (artt. 27, paragraph 3, Constitution and 1, law 354/1975) requires, in fact, that targeted rehabilitation paths be favored.

The Logical-Legal Steps of the Supreme Court

• Specialty of the Discipline: art. 94 Presidential Decree 309/1990 constitutes special legislation on drug addiction, prevailing over the general system of substitute penalties.
• Impossibility of Analogy in Malam Partem: extending a restrictive limit to the detriment of the convicted person would violate the prohibition of unfavorable analogical interpretation in criminal execution law.
• Therapeutic Purpose: the measure aims at detoxification and reintegration, values also protected by supranational norms (art. 3 ECHR and UN Mandela Rules).
• Reinterpretation of Previous Rulings: the judgment aligns with Cass. 24425/2023 and 36919/2024, reinforcing an already established trend.

Practical Implications for Defenders and Operators

Defense lawyers for drug-addicted individuals in semi-detention can leverage the ruling to request therapeutic custody immediately, without having to wait for the two-year period of sentence served. It will still be necessary to demonstrate, with appropriate medical certification, the concrete existence of a rehabilitation program and the fulfillment of other legal requirements (art. 94, para. 2).

The surveillance court, for its part, will have to provide particularly rigorous reasoning for any rejection decisions, no longer being able to limit itself to citing the temporal parameter of art. 67. The reasoning must focus on: the seriousness of the facts, the outcome of therapeutic paths already undertaken, and the current social dangerousness of the convicted person.

Conclusions

Cassation No. 12699/2025 confirms the "therapeutic" orientation of penal execution: the treatment of addiction cannot be constrained by limits designed for other measures. This opens a smoother path towards therapeutic custody for assisted individuals and their defenders, consistent with the re-educational principles of art. 27 of the Constitution and European standards regarding the rights of detainees.