Comment on Judgment No. 45642 of 2024: Preventive Measures and Non-Retroactivity of Criminal Law

Judgment No. 45642 of October 3, 2024, issued by the Court of Cassation, addresses a topic of great importance in the Italian legal landscape: the applicability of preventive measures and the principle of non-retroactivity of criminal law. In particular, the Court has established that, in matters of preventive measures, the principle of non-retroactivity provided for by Article 25 of the Constitution does not apply, but rather that provided for by Article 200 of the Criminal Code.

The Principle of Non-Retroactivity and Preventive Measures

The difference between preventive measures and criminal sanctions is fundamental to understanding the context of the judgment. Preventive measures are considered non-sanctioning, but preventive, and for this reason, they do not fall under the principle of non-retroactivity of criminal law. The Court, in fact, clarified that these measures are governed by the law in force at the time of their application, thus allowing the assessment of social dangerousness to be based on offenses committed after the facts.

Principle of non-retroactivity of criminal law - Applicability - Exclusion - Art. 200 of the Criminal Code - Applicability - Existence - Reasons - Consequences. In the matter of preventive measures, the principle of non-retroactivity of criminal law under Art. 25 of the Constitution does not apply, but rather – due to their non-sanctioning, preventive nature, which assimilates them to security measures – that established by Art. 200 of the Criminal Code, according to which they are governed by the law in force at the time of their application, so that it is permissible to base the judgment of qualified social dangerousness on alleged offenses considered symptomatic for these purposes by virtue of a law subsequent to the commission of the facts.

This decision marks an important distinction compared to other case law, where the principle of non-retroactivity has a more rigid application. The Court of Cassation, therefore, establishes a more flexible approach oriented towards public safety, allowing an assessment of social dangerousness that takes into account recent regulations.

Implications for the Italian Legal System

The repercussions of this judgment are manifold and deserve careful analysis. Firstly, preventive measures can also be applied based on offenses that were not considered such at the time of the commission of the facts, if such offenses are subsequently classified as symptomatic of social dangerousness. This can lead to:

• Greater protection of the community, as preventive measures can be activated more quickly.
• A possible extension of the duration of the measures, as their application can be justified even on the basis of subsequent offenses.
• An increase in legal disputes, given that defendants may contest the application of measures based on subsequent laws.

Conclusions

Judgment No. 45642 of 2024 represents a significant step in Italian jurisprudence concerning preventive measures. It clarifies that such measures, due to their preventive nature, are not subject to the principle of non-retroactivity of criminal law but follow the provisions in force at the time of their implementation. This approach, while it may raise questions about its practical application, aims to ensure greater public safety, demonstrating how law can evolve in response to societal needs.