28 Feb alternatives to detention

Alternative measures to detention represent one of the cornerstones of the criminal enforcement system, in implementation of the constitutional principles enshrined in the art. 27, comma 3, the Constitution, according to which the punishments must aim at the re-education of the convicted person, and find their main discipline in the Law 26 July 1975 n. 354 (Penitentiary system) and in the relevant implementing regulation referred to in the Presidential Decree. 30 June 2000 n. 230, as well as in numerous subsequent reform interventions; these measures are placed in the execution phase of the sentence and allow the convicted person to pay the penalty outside the penitentiary institution, in the presence of certain subjective and objective presuppositions, with the aim of promoting social reintegration, reduce recidivism and contain the desocializing effects of prison, in compliance with the principles of individualization of treatment and proportionality. Among the main alternative measures are the probationary assignment to the social service pursuant to art. 47 OP, home detention pursuant to art. 47-have O.P., the semi-freedom ex art. 48 OP, as well as, with special discipline, early release pursuant to art. 54 OP, which, although not an alternative measure in the strict sense, affects the length of the prison sentence; probationary assignment to the social service consists in the possibility for the convicted person of a prison sentence of no more than four years, also residual, to serve his sentence in supervised freedom, under the supervision of the External Criminal Enforcement Office (WEB), following a treatment program approved by the Supervisory Court, which provides requirements relating to residence, at work, family and social relationships and possible compensation for damage, and is considered by jurisprudence to be constitutional, in particular by the Constitutional Court, as a privileged tool for implementing the re-educational purpose of the sentence, having repeatedly stated that the alternative measures do not constitute discretionary benefits but methods of executing the sentence consistent with the constitutional provisions; home detention, instead, allows the sentence to be served at the home of the convicted person or another place of private residence, public care or assistance facility, and is provided for both in ordinary form for sentences not exceeding four years and in special form for particular categories of subjects, such as pregnant women or mothers of children under ten years of age, people suffering from serious pathologies or over seventy in certain conditions, with the aim of reconciling humanitarian and health protection needs with collective security; semi-freedom, on the other hand, allows the convicted person to spend part of the day outside the penitentiary institution to participate in work activities, instructive or otherwise useful for social reintegration, returning to prison for the remainder of the day, taking the form of a progressive measure in penitentiary treatment and presupposing a positive evaluation of the evolution of the prisoner's personality; the procedure for granting alternative measures is attributed to the supervisory judiciary, in particular to the Surveillance Court, collegial body competent to evaluate the existence of the legal requirements and the suitability of the treatment path, in compliance with the cross-examination between the parties and with the participation of the public prosecutor, and the decision is taken on the basis of a prognostic judgment regarding the ability of the convicted person to abstain from committing further crimes and to comply with the provisions imposed, judgment that, according to the constant jurisprudence of the Court of Cassation, it must be motivated in a timely manner and based on concrete and current elements, not being able to rely on mere presumptions or impeding automatisms, except in cases expressly provided for by law, such as those introduced by the art. 4-to O.P. regarding particularly serious crimes, including organized crime or terrorism crimes, for whom access to benefits is subject to specific conditions, such as collaboration with justice, discipline which is the subject of numerous legislative and Constitutional Court interventions, which has progressively limited the preclusive automatisms deemed to be in conflict with the principles of equality and re-educational purposes; the legitimacy jurisprudence has also clarified that the alternative measures do not constitute a full subjective right of the convicted person but a legal situation of legitimate interest of penitentiary law, the granting of which is subject to a discretionary technical evaluation by the supervisory judge, reviewable in cassation for violation of the law or defect in motivation, and specified that intramural behavior, adherence to treatment, compensation for damage and family and work ties constitute relevant indicators for the purposes of the decision; alongside traditional alternative measures there are institutions such as the suspension of the execution of the sentence to allow access to the measures themselves, provided for by art. 656 c.p.p., which allows the public prosecutor to suspend the execution order for short prison sentences in order to allow the convicted person to present an application to the Surveillance Court, as well as community measures introduced or expanded by recent reforms, oriented towards decarcerization and the valorization of restorative justice; Taken as a whole, the alternative measures to detention represent a complex and dynamic system, aimed at achieving a balance between general and special prevention needs, protection of the community and fundamental rights of the detained person, consistently with the constitutional function of punishment and with the obligations deriving from the supranational system, not configuring themselves as exceptions to the principle of prison execution, but as ordinary and preferable methods of expiation in cases in which the intramural restriction is not necessary for social defense and a treatment path carried out in the social context of reference of the condemned person is instead more suitable.