Commentary on Judgment No. 38278 of 2023: Leave Permits and Regulatory Amendments

Judgment No. 38278 of April 20, 2023, by the Court of Cassation represents an important ruling regarding the granting of leave permits for those convicted of prohibitive offenses. Specifically, the case concerns an individual convicted of first-tier prohibitive offenses who did not cooperate with justice. The Court annulled with referral the decision of the Rome Supervisory Court, which had rejected the request for a leave permit, highlighting the immediate applicability of the regulatory amendments made to Article 4-bis of the penitentiary system.

Regulatory Context and Recent Amendments

The central issue of the judgment concerns the application of the principle of tempus regit actum, which establishes that procedural rules apply retroactively to ongoing proceedings, unless there are specific transitional provisions. In this case, the amendments introduced by decree-law No. 162 of 2022, converted into law No. 199 of 2022, introduce new evaluation methods for granting leave permits, potentially making such benefits more accessible even to individuals convicted of non-cooperating prohibitive offenses.

01 President: TARDIO ANGELA. Rapporteur: TOSCANI EVA. Rapporteur: TOSCANI EVA. Defendant: PERRONE GIUSEPPE. Annuls with referral, TRIBUNAL OF SUPERVISION ROME, 28/06/2022 563000 INSTITUTES OF PREVENTION AND PENALTIES (PENITENTIARY SYSTEM) - Leave permit - Convicted of prohibitive offenses known as "first-tier" who has not cooperated with justice - Amendments to art. 4-bis of the penitentiary system introduced by d.l. No. 162 of 2022, converted, with amendments, by law No. 199 of 2022 - Immediate applicability to ongoing proceedings – Existence – Reasons - Ex officio reviewability in cassation proceedings – Existence. Regarding the granting of a leave permit to a person convicted of prohibitive offenses known as "first-tier" who has not cooperated with justice, the amendments made to art. 4-bis of the penitentiary system by d.l. of October 31, 2022, No. 162, converted, with amendments, by law of December 30, 2022, No. 199, are applicable to ongoing proceedings, due to the procedural nature of the rules concerning penitentiary benefits, which, in the absence of specific transitional provisions, are subject to the principle of "tempus regit actum". (In application of the principle, the Court, in light of the "ius superveniens" that occurred during the appeal proceedings, annulled with referral the rejection of the leave permit, issued under the regulations preceding the regulatory modification).

Practical and Jurisprudential Implications

This judgment has significant practical implications for convicted individuals and legal professionals specializing in criminal law. Indeed, the annulment of the rejection of the leave permit offers an opportunity to reconsider requests for access to penitentiary benefits based on the new regulations. In particular, the amendments to art. 4-bis of the penitentiary system could facilitate access to leave permits for individuals who, despite not cooperating with justice, demonstrate positive behavior during detention.

• The regulatory amendments apply immediately to ongoing proceedings.
• The principle of tempus regit actum favors the application of rules more favorable to detainees.
• The reconsideration of leave permit requests could lead to an increase in grants.

Conclusions

Judgment No. 38278 of 2023 represents a significant step forward in the field of penitentiary benefits, highlighting the importance of a legal system capable of adapting to changed regulatory circumstances. The possibility of applying the new provisions to ongoing proceedings offers a concrete chance to review situations that, until now, were considered unchangeable. Lawyers and professionals in the sector must pay particular attention to these regulatory developments to ensure effective defense of their clients' rights.