Retroactivity of Criminal Laws and Obstacle Crimes: Constitutional Court Judgment No. 32 of 2020

The principle of non-retroactivity of criminal law is one of the fundamental pillars of our legal system, a guarantee of legal certainty and protection for the individual. But what happens when new, less favorable provisions intervene to modify access to prison benefits for those who have committed serious crimes? The Constitutional Court addressed this delicate issue with Judgment No. 32 of 2020, offering essential clarification on the retroactive application of rules, especially concerning so-called 'obstacle crimes' and the institution of house arrest.

The Principle of Non-Retroactivity and its Constitutional Relevance

Article 25, second paragraph, of the Italian Constitution peremptorily states that "No one may be punished except by virtue of a law that has entered into force before the act was committed." This principle, known as the non-retroactivity of criminal law, is a bulwark against arbitrariness and ensures that a citizen can always know the legal consequences of their actions at the time they commit them. This is not merely an internal rule but a principle also recognized at the supranational level, as evidenced by Article 7 of the European Convention on Human Rights (ECHR).

The Constitutional Court, with Judgment No. 32 of 2020, reiterated how even provisions governing access to prison benefits, while not strictly punitive, can assume a 'substantive' nature. This means that if such rules introduce more stringent limitations or prohibitions, they must be subject to the principle of non-retroactivity. This is the case with Article 4-bis of the Penitentiary Law, introduced by Decree-Law of May 13, 1991, No. 152 (converted with modifications by Law of July 12, 1991, No. 203), which limits access to benefits for those convicted of 'obstacle crimes,' i.e., offenses of particular gravity.

Judgment No. 32 of 2020: Details and Implications

The Court's ruling examined the case of house arrest for convicted individuals over seventy years of age, in relation to the application of Article 4-bis of the Penitentiary Law. The Court established a fundamental principle that deserves further exploration:

In the matter of house arrest for convicted individuals over seventy years of age, the retroactive application of less favorable provisions, such as that of Article 4-bis of the Penitentiary Law, introduced by Decree-Law of May 13, 1991, No. 152, converted with modifications by Law of July 12, 1991, No. 203, concerning the prohibition and limitation of access to prison benefits, must be excluded, given their "substantive" nature. This is in light of the interpretation of Article 25, second paragraph, of the Constitution adopted by the Constitutional Court with judgment No. 32 of 2020. The exception is the case of conviction for an obstacle crime committed before the so-called "Gozzini Law" established the institution of house arrest, because, in that scenario, the individual, at the time of committing the offense, could not foresee the possibility of being granted this specific type of prison treatment, which was subsequently precluded by the rules introduced by Decree-Law No. 152 of 1991.

This maxim is of crucial importance. The Constitutional Court clearly states that stricter rules, such as Article 4-bis of the Penitentiary Law, cannot be retroactively applied to acts committed before their entry into force, as they have a 'substantive' value that affects the convicted person's status. However, Judgment No. 32 of 2020 introduces a significant exception: the non-retroactivity of less favorable rules ceases to apply if the obstacle crime was committed at a time when the institution of house arrest itself (introduced by the so-called 'Gozzini Law,' Law of October 10, 1986, No. 663) did not yet exist. In such a case, the convicted person could not, at the time of the offense, have had any expectation regarding the possibility of accessing such a benefit, and therefore the subsequent preclusion cannot be considered a retroactivity in peius.

The Exception and the Ratio Decidendi

The exception established by the Constitutional Court is based on the principle of foreseeability. If a particular prison benefit was not even contemplated by the legal system at the time the crime was committed, the individual could not in any way foresee its granting. Consequently, the subsequent introduction of rules that limit or preclude access to that benefit does not violate the principle of non-retroactivity, as it does not affect a pre-existing legitimate expectation.

In summary, Judgment No. 32 of 2020 offers us important clarifications:

• Rules that limit or exclude access to prison benefits have a 'substantive' nature.
• The principle of non-retroactivity applies to such rules, with exceptions.
• The exception occurs when the benefit did not exist at all at the time the crime was committed.
• The ratio is the protection of the foreseeability of legal consequences and the citizen's reliance.

Conclusions

Judgment No. 32 of 2020 of the Constitutional Court represents a fundamental reference point for understanding the relationship between the principle of non-retroactivity of criminal law and the rules on the execution of sentences, particularly for obstacle crimes. It reaffirms the centrality of Article 25 of the Constitution and Article 7 of the ECHR, ensuring that legislative changes cannot surprise citizens with unpredictable detrimental effects. At the same time, the ruling precisely outlines the boundaries of this protection, balancing individual guarantees with the demands of justice and the evolution of the legal system. For complex issues like these, the advice of a legal expert in penitentiary law is always recommended to navigate the nuances of the law and best protect one's rights.