The Aggravating Circumstance of Art. 71 Legislative Decree 159/2011: Clarifications from the Court of Cassation with Ruling 20227/2025

The Italian legal system, in its fight against crime, makes use of personal preventive measures. But what happens if a subject, subjected to such a measure, commits a crime and the measure is subsequently revoked? Ruling No. 20227 of 2025 by the Court of Cassation offers a crucial interpretation on the application of the special aggravating circumstance provided for by art. 71 of Legislative Decree No. 159 of 2011, the "Anti-Mafia Code".

Art. 71 Legislative Decree 159/2011: Function and Criticalities

Article 71 of Legislative Decree 159/2011 provides for an increased penalty for those who commit a crime while subject to a definitive preventive measure, or within three years of its cessation. The aim is to discourage criminal activity by individuals already deemed socially dangerous. However, its application has raised doubts, especially when the preventive measure is revoked.

The aggravating circumstance referred to in art. 71, legislative decree of 6 September 2011, no. 159, which provides for an increased penalty if the act is committed by a person definitively subjected to a personal preventive measure during the planned period of application and up to three years from the moment its execution has ceased, also applies in cases where such a measure has been revoked due to supervening elements that have altered the assessment of the subject's dangerousness. (In its reasoning, the Court specified that, conversely, the aggravating circumstance cannot be applied in the case of revocation determined by the original lack of the prerequisites for imposing the measure).

Ruling No. 20227 of 2025 by the Court of Cassation, presided over by Dr. M. G. R. A. and reported by Dr. M. T., clarifies that the aggravating circumstance of art. 71 also applies if the preventive measure has been revoked, but only if such revocation is due to supervening elements that have modified the assessment of dangerousness. At the time of the crime, the subject's dangerousness was real and the measure was legitimately in force. The aggravating circumstance does not apply, however, if the revocation was determined by the original lack of prerequisites. In such a case, the measure should not have been applied from the outset, and the presumption of dangerousness ceases to exist.

Keys to Interpreting the Decision

This distinction, made by the Supreme Court in rejecting the appeal of the defendant C. P.M., is of fundamental practical importance, ensuring consistency and predictability. The core for the application of the aggravating circumstance is the existence of the subject's social dangerousness at the time of the unlawful act, as ascertained by the definitive preventive measure. If this dangerousness ceases to exist only at a later time due to new elements, this does not nullify the validity of the assessment of dangerousness. If, on the other hand, the measure was vitiated by an original lack of prerequisites, the dangerousness was never legitimately ascertained.

Conclusions

Ruling No. 20227 of 2025 is a significant piece in Italian criminal jurisprudence. The Court of Cassation offers clear guidance on the interpretation and application of art. 71 Legislative Decree 159/2011, resolving an ambiguity. This pronouncement strengthens legal certainty and reiterates the importance of preventive measures as a tool for social defence, precisely outlining when their expiry does not exclude the greater gravity of the act committed by a person previously deemed dangerous. Understanding these nuances is essential for legal professionals.