Judgment of Dangerousness and Preventive Measures: Commentary on Judgment No. 15704 of 2023

Judgment No. 15704 of January 25, 2023, represents an important reference point for criminal law and preventive measures in Italy. In particular, the Court of Cassation has clarified the methods for assessing a subject's dangerousness, highlighting how facts ascertained during criminal proceedings can be used independently for the dangerousness judgment.

The Legal Context of the Judgment

The decision falls within the scope of preventive measures provided for by Legislative Decree of September 6, 2011, No. 159, which governs public safety matters. Specifically, Article 1, paragraph 1, letter b) of the decree establishes that a dangerousness judgment can be made even in the absence of a final conviction, provided that the facts emerge with sufficient clarity during the criminal trial.

The Court affirmed that a conviction is not necessary for facts to be used to reach a finding of dangerousness. This approach reflects the autonomy between criminal proceedings and preventive proceedings, emphasizing that even an acquittal may not preclude the consideration of dangerousness elements.

The Ruling's Headnote

Judgment of Dangerousness - Facts ascertained during criminal proceedings not concluded with a conviction - Independent usability for assessing the dangerousness of the proposed individual - Possibility - Conditions. Regarding preventive measures, the judge, given the autonomy between criminal proceedings and preventive proceedings, can independently assess facts ascertained in criminal proceedings to reach a finding of general dangerousness of the proposed individual pursuant to Article 1, paragraph 1, letter b), of Legislative Decree of September 6, 2011, No. 159. This is possible not only in cases of declared extinction of the crime or a decision not to proceed, but also following an acquittal under Article 530, paragraph 2, of the Code of Criminal Procedure, where those facts, which were deemed insufficient – on the merits or due to procedural preclusions – for a criminal conviction, are nonetheless clearly and objectively delineated, and can serve as the basis for a dangerousness judgment. (In its reasoning, the Court stated that, in light of constitutional jurisprudence, the need for a high standard of legality is reflected not so much in the methods of ascertainment, but in the object of the general dangerousness assessment, which must focus on the existence of factual elements identifiable with adequate precision and clarity).

Practical and Legal Implications

This judgment offers a series of significant insights for legal practice. In particular, the fact that a judge can consider facts already emerged in criminal proceedings, even in the absence of a conviction, expands the possibilities for applying preventive measures. The consequences of this interpretation can be manifold:

• Possibility of a broader and more inclusive assessment of facts that indicate a subject's dangerousness.
• Strengthening of public safety protection, allowing for preventive measures even in cases of acquittal.
• Need for greater attention in the collection and documentation of facts during criminal proceedings to ensure a fair and precise assessment.

Conclusion

In summary, judgment No. 15704 of 2023 represents an important evolution in the field of criminal law and preventive measures. The possibility of independently using facts ascertained in criminal proceedings to establish a subject's dangerousness raises crucial questions about the protection of individual rights and public safety. It will be essential to monitor how this interpretation is applied in the future to ensure a balance between the protection of society and respect for the fundamental rights of the individuals involved.