Commentary on Judgment No. 35682 of 2023: Reform of Alternative Measures to Detention

Judgment No. 35682 of May 23, 2023, issued by the Court of Cassation, introduces significant changes to the interpretation of alternative measures to detention for individuals convicted of first-tier prohibitive offenses. In an ever-evolving legal landscape, this decision is part of recent legislative reforms, particularly those introduced by Decree-Law No. 162 of 2022.

The Regulatory Context and Innovations Introduced

Article 4-bis of the Penitentiary Law has undergone substantial amendments, directly impacting the assessment of alternative measures. Prior to these reforms, cooperation with judicial authorities was a fundamental requirement for accessing such measures. However, the judgment under review establishes that, following legislative changes, cooperation is no longer a decisive factor.

Specifically, the Court clarifies that the presumption of maintaining links with criminal organizations is now considered rebuttable. This means that the judge is tasked with examining the convicted person's rehabilitative path, assessing any absence of current or potential links with organized crime.

Implications of the Decision

01 President: ROCCHI GIACOMO. Rapporteur: ALIFFI FRANCESCO. Reporting Judge: ALIFFI FRANCESCO. Defendant: CATARISANO GIUSEPPE. Public Prosecutor: PASSAFIUME SABRINA. (Diff.) Annuls with referral, SUPERVISORY COURT OF GENOA, 07/09/2022 563000 INSTITUTIONS FOR PREVENTION AND PUNISHMENT (PENITENTIARY LAW) - Alternative measures to detention - Convicted for so-called first-tier prohibitive offenses - Amendments to art. 4-bis penitentiary law with d.l. no. 162 of 2022 - Lack of cooperation by the convicted person - Irrelevance - Rebuttable presumption of links with criminal association - Investigatory powers of the judge pursuant to art. 4-bis, paragraph 2, penitentiary law - Assessment of the rehabilitative path and absence of links with crime - Necessity.

This transformation has a significant impact on the criminal justice system and the possibilities of accessing alternative measures. Judges, now equipped with expanded investigatory powers, must conduct a more in-depth and comprehensive evaluation of the convicted person's social reintegration path. The implications are manifold:

• Increased attention to the individual context of the convicted person.
• Possibility of a fairer assessment of actual social reintegration capabilities.
• Recognition of the importance of rehabilitation over mere cooperation with authorities.

Conclusions

Judgment No. 35682 of 2023 represents a significant turning point in the treatment of individuals convicted of prohibitive offenses. The amendment to the presumption of links with organized crime and the emphasis on assessing the rehabilitative path offer a new perspective for those involved. The Court of Cassation, therefore, has not only highlighted the importance of rehabilitation but has also reaffirmed the central role of the judge in assessing alternative measures, promoting a more humane and contextualized approach.