19 Sep prevention measures

Prevention measures constitute one of the most characteristic institutes and, at the same time, more complex than the Italian legal system, placing itself in a border area between criminal law, right of public safety and protection of economic and social order. Their function does not consist, at least according to the traditional dogmatic approach, in the imposition of a sentence following the establishment of responsibility for a specific crime, but in anticipating the protection of the law through the application of specific measures towards subjects deemed socially dangerous on the basis of assumptions identified by law. It was precisely this particular preventive function that determined, over the decades, an intense process of progressive jurisdictionalization and constitutionalization of the matter, aimed at making a system potentially highly incisive on personal freedom and property rights compatible with the fundamental principles enshrined in the Constitution and the European Convention on Human Rights. The current regulation finds its main regulatory reference in the legislative decree 6 September 2011, n. 159, containing the “Code of anti-mafia laws and prevention measures, as well as new provisions regarding anti-mafia documentation", subsequently modified by numerous legislative interventions, among which those introduced by law are of particular importance 17 October 2017, n. 161 and by the decree-law 4 October 2018, n. 113, converted by law 1 December 2018, n. 132. The Code of anti-mafia laws has created a systematization of a matter which, previously, was fragmented into a plurality of regulatory sources, including the law 27 December 1956, n. 1423, relating to prevention measures against people dangerous to safety and public morality, the law 31 May 1965, n. 575, relating to subjects suspected of belonging to mafia-type associations, and the law 22 May 1975, n. 152, containing provisions for the protection of public order. The legislative decree. n. 159 of the 2011 it has therefore brought together the discipline of personal and property prevention measures in a single regulatory body, attributing an organic structure to matter and distinguishing, albeit within a unitary system, the different forms of danger that can justify the intervention of the judicial authority. The starting point for understanding the matter is represented by the notion of social danger, which however cannot be understood in merely generic or intuitive terms. Constitutional and legitimacy jurisprudence has in fact progressively clarified that a simple suspicion regarding the possible inclination of the subject to commit crimes is not sufficient, it being necessary that the prevention judgment is based on concretely verifiable factual elements that can be traced back to the criminological categories identified by the legislator. Already with the historic sentence no. 23 of the 1964 the Constitutional Court had excluded that prevention measures could be applied on the basis of mere suspicions, affirming the need for an objective evaluation of facts from which to deduce the dangerous situation. A further fundamental step is represented by sentence no. 177 of the 1980, with which the Constitutional Court intervened on the principle of mandatory nature of the categories of danger, eliminating from the legal system a case characterized by excessive indeterminacy. This evolution took on even greater importance following the intervention of the European Court of Human Rights in the Grand Chamber ruling of 23 February 2017, By Tommaso c. Italia, in which important considerations were formulated on the predictability of the regulation of personal prevention measures and on the need for limitations on freedom of movement to be based on a sufficiently accessible and predictable legal basis. The reaction of the Italian legal system to these problems was particularly significant and found a central moment in the ruling of the Constitutional Court n. 24 of the 2019, which he declared constitutionally illegitimate, for violation of the articles. 13 e 117, first paragraph, Cost., the latter in relation to the art. 2 of Protocol No.. 4 CEDU, the provision concerning the category of people "habitually engaged in criminal trafficking", in the formulation then in force, noting its radical imprecision. The same ruling also affected the regulation of capital measures, recognizing that the same lack of specificity could not justify the ablation of goods in relation to an insufficiently defined subjective category. The current system must therefore be interpreted in light of a fundamental principle: prevention cannot be transformed into a form of criminal liability based on mere suspicion, nor can it allow limitations of fundamental rights on the basis of excessively vague normative categories. Prevention measures are primarily divided into personal and patrimonial ones. The former mainly affect the recipient's personal freedom and freedom of movement, while the latter affect the assets, through tools such as preventive seizure and confiscation. The personal measures provided for by the Code include, in particular, the oral warning and the measures applied by the judicial authority, among which special public security surveillance takes on central importance, possibly accompanied by a ban or obligation to stay. The oral notice, governed by article. 3 del d.lgs. n. 159 of the 2011, constitutes a prevention measure of an administrative nature and consists in communicating to the interested party the existence of elements that lead to the belief that he belongs to one of the categories of subjects addressed by the prevention legislation, with the invitation to behave in accordance with the law. Special public security surveillance is different, governed by the articles. 6 and following of the Code, which is applied by the judicial authority and involves a series of requirements and limitations on the subject's freedom of movement. Special surveillance may be accompanied by a ban on residence in one or more municipalities or provinces or by the obligation to stay in the municipality of residence or habitual residence., as required by law. The measure is characterized by a specific duration and must be calibrated to the concrete dangerous situation ascertained by the judge. L’art. 8 del d.lgs. n. 159 of the 2011 takes on particular importance as it regulates the requirements that may accompany special surveillance, imposing on the recipient a series of behavioral obligations aimed at reducing the opportunities for committing further illicit conduct and allowing control by the public security authority. The violation of the obligations inherent to special surveillance can also assume autonomous criminal relevance in the cases provided for by the art. 75 del d.lgs. n. 159 of the 2011, provision that regulates the consequences of violation of the requirements imposed by the measure. On a subjective level, the Code traditionally distinguishes between hypotheses of so-called generic danger and hypotheses of qualified danger. The former are mainly attributable to the categories provided for by the art. 1 del d.lgs. n. 159 of the 2011, while the latter are governed by art. 4 and they understand, among others, those suspected of belonging to mafia-type associations, gli indiziati di alcuni delitti particolarmente gravi e altri soggetti individuati dalla legge in ragione della particolare natura delle condotte o dei contesti criminali di riferimento. La distinzione tra pericolosità generica e qualificata riveste un’importanza essenziale sia sul piano dei presupposti applicativi sia sul piano della valutazione giudiziaria. La pericolosità qualificata deriva infatti dall’inquadramento del soggetto in una delle specifiche categorie previste dall’art. 4, while generic dangerousness requires a rigorous verification of the conduct concretely attributable to the regulatory categories of the art. 1. In both cases, however, jurisprudence has excluded that the judgment can be based on mere subjective evaluations of the proceeding authority. The Court of Cassation has progressively affirmed that the prevention judgment must be articulated in a so-called observational phase, in which concretely verifiable facts suitable for placing the subject in the reference legislative category are reconstructed, and in a subsequent prognostic phase, in which social danger is assessed e, for personal measurements, its relevance. It is particularly significant, in that perspective, Cass. pen., sez. I, 14 June 2017, n. 54119, according to which the attribution of the dangerous condition requires the preliminary and current classification of the subject in one of the criminological categories typified by the articles. 1 e 4 del d.lgs. n. 159 of the 2011, followed by the prognostic assessment relating to probable future conduct. The principle allows us to understand the structure of the prevention judgment: we don't start from the prognosis and then look for the facts that justify it, ma, on the contrary, it is first necessary to ascertain the occurrence of the normative and factual prerequisites of the category of danger and only subsequently formulate the prognostic judgment required by law. In matters of qualified dangerousness, a further principle of great importance was affirmed by the United Sections of the Court of Cassation with the sentence 30 November 2017, n. 111, according to which, in the application of personal prevention measures to those suspected of belonging to a mafia-type association, it is necessary to ascertain the actuality of the social danger. This principle helps to delimit judicial power, preventing the mere past belonging to a criminal context from automatically justifying it, after some time, a personal measure. The evaluation of current affairs must be carried out on the basis of concrete and updated elements, taking into account the nature of the conduct, of the duration of participation, of the methods of termination of relations with the organization and of any subsequent elements capable of demonstrating the persistence or disappearance of the danger. The regulation of capital measures is different. The Italian system in fact attributes central importance to the possibility of attacking the assets attributable to subjects deemed socially dangerous, even independently of the simultaneous application of a personal measure. This is the so-called autonomy or disjunction of patrimonial measures, progressively established itself through the legislative interventions of 2008 and of 2009 and today implemented by the legislative decree. n. 159 of the 2011. Preventive confiscation is mainly governed by art. 24 of the Code, lies the art. 20 regulates seizure aimed at confiscation. The seizure constitutes a provisional and precautionary measure, aimed at preserving the availability of the assets in view of any subsequent confiscation; the latter instead represents the definitive ablative measure, through which the asset is removed from the recipient and acquired as part of the State's assets according to the methods established by law. L’art. 24 predicts, in particular, that assets of which the subject cannot justify the legitimate origin and of which can be confiscated, directly or indirectly, appears to have the availability for any reason in a disproportionate value compared to one's income, to the economic activity carried out or in any case when the goods are the result of illicit activities or constitute their reuse. The patrimonial judgment therefore has a complex structure, in which both the availability of the good on the part of the proposer and its origin are of importance, in addition to the relationship between the value of the assets and the economic capabilities formally declared or concretely ascertained. Preventive confiscation does not coincide with criminal confiscation provided for by art. 240 c.p., nor with the other special forms of confiscation provided for by the law, since it responds to a different function and is part of the prevention procedure. The distinction has been highlighted several times by jurisprudence, also constitutional, which highlighted how the asset prevention procedure is not simply a variant of the criminal process aimed at ascertaining responsibility for a specific crime. A fundamental step in the jurisprudential development of patrimonial matters is represented by the ruling of the United Sections of the Court of Cassation 26 June 2014, n. 4880, Spinelli, which defined important principles regarding preventive confiscation, with particular reference to the necessary temporal correlation between the dangerous situation and the acquisition of the goods. According to this approach, confiscation cannot be indiscriminately extended to all assets owned by the subject, but the temporal relationship between the period in which the danger arose and the moment of acquisition of the assets must be verified. In other words, il giudizio patrimoniale richiede una ricostruzione storica della situazione economica del proposto e non può risolversi in una generica valutazione di sospetto circa l’origine del patrimonio. Le Sezioni Unite Spinelli hanno avuto un’importanza decisiva anche perché hanno contribuito a consolidare l’autonomia delle misure patrimoniali rispetto alle misure personali, chiarendo che, pur potendo la confisca essere applicata in assenza dell’attualità della pericolosità personale, the need remains to ascertain the relationship between the historically manifested danger and the acquisition of the goods subject to ablation. Preventive confiscation therefore has an essentially patrimonial function, aimed at taking goods away from the subject's availability, on the basis of the elements acquired in the procedure, are linked to his illicit activity or present characteristics incompatible with the legitimate economic capacity demonstrated. Particular attention must be paid to the notion of "availability" of the good, which does not necessarily coincide with formal ownership. In fact, the legislation also allows assets formally registered in the name of third parties to be attacked when the judge ascertains that the proposed party has them, The aggravation of the instability punished by art, direct or indirect availability. The phenomenon of fictitious registration represents one of the central aspects of asset prevention action, especially in proceedings involving individuals involved in organized crime contexts. The verification of indirect availability, however, requires a justification based on concrete elements and cannot be automatically deduced from the simple family relationship, emotional or corporate relationship existing between the proposed party and the formal holder. In this context, the origin of the resources used for the purchase is important, the concrete management of the asset, supporting expenses, the exercise of de facto powers over the asset, material availability and any other element suitable to demonstrate that the formal ownership does not correspond to the real financial situation. The prevention procedure is characterized by its own autonomy compared to the criminal procedure, despite presenting numerous points of contact with it. The proposal for the application of the measure can be formulated by the subjects indicated in the art. 5 del d.lgs. n. 159 of the 2011, while the jurisdiction belongs to the court of the capital of the appellate court district in which the person lives, according to the criteria established by current regulations. The procedure is carried out in compliance with the contradictory nature and the right of defence, with the possibility for the proposed party and other interested parties to participate in the procedure through the technical defense, contest the elements underlying the proposal, produce documentation, indicate evidence and challenge the final decision in the cases and in the ways provided for by law. Precisely from the point of view of procedural guarantees, the evolution of the matter has been particularly significant. The Constitutional Court, with sentence no. 93 of the 2010, declared the constitutional illegitimacy of the legislation in force at the time in the part in which it did not allow, at the request of the interested parties, carrying out the prevention procedure in public before the court and the court of appeal, thus adapting the system to the needs deriving from the art. 6 ECHR as interpreted by the Strasbourg Court. Subsequent constitutional jurisprudence has confirmed the need to read the prevention procedure through the prism of the constitutional guarantees of the right of defense and fair trial. The Constitutional Court itself, with sentence no. 21 of the 2012, it also underlined the structural difference between criminal proceedings and those aimed at applying a financial prevention measure, excluding that the guarantees specific to the criminal trial can be automatically superimposed on a proceeding that has a different function and a different object. That doesn't mean, however, that the prevention procedure is removed from the fundamental guarantees of the legal system: on the contrary, the progressive jurisdictionalization of the matter has imposed a strengthening of participatory and motivational guarantees. The adversarial principle takes on particular importance especially in property proceedings, in which the ablation can definitively affect the property right protected by the art. 42 Cost. and by the art. 1 of the Additional Protocol to the ECHR. The judge must therefore adequately justify both the existence of the subject's dangerousness and, in the case of capital measures, the specific conditions that justify the attack on individual assets. A merely general motivation based on the overall situation of the proposal is not sufficient: it is necessary to verify the relationship between the individual assets and the elements that justify their seizure or confiscation. The relationship between prevention proceedings and criminal proceedings is also particularly delicate. The existence of a criminal proceeding or a conviction can constitute a particularly important element in the prevention judgment, but the two procedures retain structural and functional autonomy. The prevention judge is not simply called upon to replace the criminal judge in ascertaining responsibility, but must make its own evaluation of the elements acquired, verifying their suitability to demonstrate the classification of the subject in one of the categories established by law. It follows that acquittal in criminal proceedings does not automatically determine the impossibility of applying a preventive measure, just as a criminal conviction does not automatically lead to the application of a preventive measure. Naturally, the effects of an irrevocable criminal ruling and the evidentiary material acquired in the criminal trial can take on a significant weight in the prevention procedure, but they must be evaluated within the specific structure and purpose of the latter. A sector of particular importance is that of prevention measures applicable to those suspected of belonging to mafia-type associations. L’art. 4 del d.lgs. n. 159 of the 2011 identify, among the recipients of personal and property prevention measures, those suspected of belonging to the associations referred to in the art. 416-to c.p., as well as further categories identified by the legislator in relation to the particular seriousness of the criminal conduct and phenomena. In this context, preventive judgment takes on a particularly incisive function, since the objective is to intervene not only on an individual level, but also on the economic structure of criminal organizations, preventing wealth deriving from illicit activities from being preserved, hidden, reinvested or transferred to third parties. In fact, property regulations represent one of the central tools of the strategy to combat organized crime, through the principle according to which the subtraction of economic resources constitutes an essential element of the action to combat mafia phenomena. From this perspective, the provisions relating to the management and destination of confiscated assets are also important, as well as the role of the National Agency for the administration and destination of assets seized and confiscated from organized crime, governed by the Legislative Decree. n. 159 of the 2011. In fact, the system aims not only to remove assets from the recipient of the measure, but also to its subsequent management and, where possible, to the return to the community through the forms of destination provided for by law. The prevention procedure can therefore produce extremely significant financial consequences, especially in relation to complex assets, businesses, corporate shareholdings, real estate, financial resources and other economically significant assets. Precisely for this reason the reconstruction of the origin of the heritage constitutes one of the most delicate aspects of the defensive activity. The proposer must be able to demonstrate, through bank documentation, tax, corporate, contractual and accounting, the lawful origin of the resources used for the purchase and accumulation of goods. In this context, the distinction between disproportionate assets and illicit origin also becomes important, which need not necessarily be confused: disproportionality constitutes one of the elements expressly considered by the confiscation law, but the judicial evaluation must in any case be inserted into the broader evidentiary framework relating to the economic situation of the subject and its relationship with the illicit activities. The asset prevention measures may also involve subjects other than the proposed one, in particular third parties who have rights over assets subject to seizure or confiscation. The Code specifically regulates the protection of third party rights, trying to balance the need to prevent evasive operations with the need to protect the rights of subjects unrelated to illicit conduct. Jurisprudence has progressively developed rigorous criteria to distinguish the effectively extraneous third party from the subject who has knowingly collaborated in the concealment or conservation of the assets attributable to the proposed party.. A further fundamental aspect concerns the revocation of confiscation. L’art. 28 del d.lgs. n. 159 of the 2011 regulates a specific remedy against the definitive confiscation order, providing for the possibility of obtaining revocation in the presence of the conditions established by law, among which the discovery of new elements and other particularly qualified defects take on importance. The most recent jurisprudence has reiterated that revocation does not constitute a general tool for re-proposing issues that could have been raised in the original proceedings, but presupposes the presence of elements which have occurred or which can in any case be traced back to the specific hypotheses envisaged by the art. 28. Overall, the evolution of prevention measures demonstrates how the Italian legal system has moved from a model originally characterized by wide margins of discretion of the public security authority to a system in which preventive intervention is subjected to increasingly penetrating judicial control. Contemporary prevention cannot therefore be correctly described as a system based on simple suspicion, since its constitutional legitimacy depends on the concrete identification of the factual and normative presuppositions that allow the subject to be traced back to a legislatively typified and, when required, from the demonstration of the actuality of the social danger. The principle of taxability, affirmed by the Constitutional Court and further enhanced by the jurisprudence of the European Court of Human Rights, represents one of the main limits to the exercise of preventive power. Likewise, on the patrimonial level, confiscation cannot be conceived as an automatic consequence of the mere existence of significant assets or a previous judicial event, but requires the verification of the conditions established by the articles. 20 e 24 del d.lgs. n. 159 of the 2011 and a reason specifically referring to the assets subject to the ablation. The progressive jurisprudential development has therefore contributed to defining a balance between two apparently opposing but both essential needs in the constitutional order: on one side, the State's need to prevent and combat particularly dangerous crime phenomena, especially when characterized by the availability of huge economic resources; on the other, the need to ensure that the exercise of preventive power does not result in arbitrary limitations of personal freedom, of freedom of movement and the right to property. In this perspective, Prevention measures today represent a sector in which the substantive and procedural dimensions are closely connected: the precision of the case, the concreteness of the factual elements, the correct identification of the danger, the actuality of the same when required by law, the chronological reconstruction of the heritage, verification of the origin of the goods, the cross-examination and the obligation to give reasons constitute equally indispensable elements so that the preventive intervention can be considered compliant with constitutional principles. The system outlined by the legislative decree. n. 159 of the 2011 it must therefore be read not as a body of legislation autonomous from the general principles of the legal system, but as a discipline that must necessarily deal with the articles. 13, 16, 24, 25, 27, 41, 42, 111 e 117 the Constitution, as well as with the guarantees provided by the ECHR. The history of prevention measures, by law n. 1423 of the 1956 up to the current Anti-Mafia Code and the interventions of the Constitutional Court, of the European Court of Human Rights and the Court of Cassation, it therefore shows a progressive process of transformation of the institute: from a predominantly administrative tool for controlling dangerousness to a judicial proceeding characterized by specific guarantees and a complex system of substantive and procedural prerequisites. This evolution has not eliminated the particular preventive nature of the institute, but it has progressively defined its boundaries, imposing that every limitation of personal freedom or every patrimonial ablation is based on a sufficiently specific legislative provision, in concretely ascertainable facts and in an adequately motivated judicial decision. Prevention measures therefore constitute, in the contemporary Italian system, one of the most incisive tools for the early protection of public order and the legal economy, but precisely because of their ability to impact fundamental rights they require an application that strictly respects the principles of legality, taxability, proportionality, jurisdictionality, cross-examination and right of defence. It is precisely in the difficult balance between preventive effectiveness and individual guarantees that the correct placement of prevention measures in the Italian legal system must be sought.