Commentary on Judgment No. 39162 of 2024: Substitute Penalties and the Rehabilitative Purpose

The recent judgment No. 39162 of October 4, 2024, issued by the Court of Cassation, offers important clarifications on the subject of substitute penalties for short custodial sentences. This ruling, in particular, emphasizes how the judge must go beyond the mere assessment of the seriousness of the offense and the dangerousness of the subject, to adequately justify the denial of such substitute penalties.

The Regulatory Context

The issue of substitute penalties is governed by various legal provisions, including Article 58 of Law No. 689 of 1981 and Legislative Decree No. 150 of 2022. These provisions provide the framework within which the judge must operate, but the judgment under analysis highlights a fundamental aspect: the need for clear and prognostic reasoning. This means that the judge must consider whether the substitute penalty can truly achieve the rehabilitative objective.

The Ruling's Principle

Substitute penalties for short custodial sentences - Denial - Assessment of the seriousness of the offense and the dangerousness of the subject - Sufficiency - Exclusion - Prognostic reasoning with regard to the rehabilitative purpose - Necessity - Existence. In the matter of substitute penalties for short custodial sentences, the judge, in case of denial of the substitution of the custodial sentence (in this case, with a pecuniary penalty), cannot limit themselves to assessing the appropriateness of the penalty through the criteria of the seriousness of the offense and the dangerousness of the subject, but is also required to provide prognostic reasoning for why the considered elements render the substitute penalty unsuitable for achieving the rehabilitative purpose.

This principle highlights that the judge cannot limit themselves to a simple quantitative analysis of the penalty but must also delve into the context and the subject's potential for rehabilitation. This is an important step to ensure that the penal system is not reduced to a mere punitive reaction but promotes the social reintegration of the convicted person.

Conclusions

In conclusion, judgment No. 39162 of 2024 represents an opportunity to reflect on the rehabilitative function of substitute penalties. The Court of Cassation, with its intervention, reminds us that every judicial decision must be carefully reasoned, taking into account not only the committed offense but also the subject's possibilities for recovery. It is an invitation to a more humane and constructive approach in criminal law, where the purpose is not only punishment but the possibility of reintegrating the individual into society.