Enforcement of alternative measures to detention in EU countries: The Italian situation

Abstract

With Framework Decision 2008/947/JHA, about the application of the ‘principle of mutual recognition to sentences and probation decisions with a view to the supervision of probation measures and alternative sanctions’, the European legislator intervened on the matter of criminal enforcement in order to coordinate those cases in which an ‘alternative sanction’ is issued in one country and executed in a foreign country. This regulatory act, in addition to allowing the implementation of some founding principles of the European Union – in particular the mutual recognition of judicial decisions as well as the freedom of residence and movement in the various member countries – also pursues the express aim of ‘strengthen the possibility of social reintegration of the convicted person, allowing him to maintain, among other things, family, linguistic and cultural ties, but also to improve the control of compliance with the probation measures and alternative sanctions with the aim of preventing recidivism, taking therefore consideration to the protection of victims and to the public, generally’.

In Italy, despite the directive, until the issuing of Legislative Decree 15/02/2016 n. 38, the jurisprudence of merit and legitimacy have always excluded the possibility that a person convicted in an alternative measure to the prison sentence could carry out the execution of the benefit granted to him in place of the sentence abroad rather than on national territory. Among the arguments derived there was the one about social service for adults which can only carry out their activity at a national level. In addition, their supervision, by its specific nature, is not included among the functions that can be exercised by consular offices so it would have been not possible to have any control over the proper fulfilment of the requirements and the correct execution of the alternative measure applied. Also, the police support would have been impossible because the foreign one could not be delegated by a non-national authority, nor can it be possible to involve the police of the issuing State in spatial areas far from their competences. (Cass. Sez. I Pen, 2013)

The supervisory courts used to follow the orientation of the Court of Cassation, with the exception of a few rare rulings, however cancelled by the Supreme Court, with which it was held that the execution of an alternative measure in the State in which the convicted person established residence and has family and social ties, could be pursued on the basis of an extensive interpretation of the European Convention adopted in Strasbourg in 1964 (also ratified by Italy with Law 772/1973), concerning the surveillance of persons condemned or released under conditions. (Tribunale di sorveglianza di Firenze, 2005; Tribunale di sorveglianza di Torino, 2020)

With the d. Legislative Decree 38/2016, 8 years later, Italy took steps to implement the Framework Decision 2008/947, while providing for an operational safeguard clause for those cases in which the application of the rules of the decree itself prove to be ‘incompatible with the principles of the constitutional system in terms of fundamental rights as well as in terms of freedom and fair trial rights’.

With Legislative Decree 38/2016, therefore, Italy has certainly remedied its own non-compliance and averted the risk of starting an infringement procedure against itself by also making the application of a composite package of regulations potentially suitable for strengthening the protection of citizens’ fundamental rights.

The transposition of Framework Decision 2008/947/JHA must be read in conjunction with the transposition of Framework Decision 2009/829/JHA regarding alternative measures to precautionary detention measures carried out with Legislative Decree 15 February 2016, n. 36 as well as with the other framework decisions recently implemented on the basis of the 2014 European delegation law and with the 2008/909/JAI of the Council related to the application of the principle of mutual recognition to criminal sentences imposing prison sentences or restrictive measures of personal freedom, for the purposes of their execution in the European Union.

After the taking effect of Decree no. 38/2016, the jurisprudence of legitimacy and merit, despite some resistances, has begun to retrace its steps by recognizing the possibility of carrying out alternative measures to prison sentences, limited to States belonging to the European Union.

The evolution was not immediate.

The expression ‘substitute sanction’ used in the legislative decree or ‘a sanction, other than a prison sentence or a restrictive measure of personal freedom or a pecuniary penalty, which imposes obligations and gives prescriptions’ (art. 2 letter E) has placed interpretative doubts to the legitimacy jurisprudence on the meaning of the term as it is not clear whether the alternative measures to prison provided for by our penitentiary system which allow the convicted person to serve a sentence in a regime other than prison could be included, in order to guarantee a gradual re-entry in the society, in accordance with the provisions of the art. 27 paragraph 3 of the Constitution.

A jurisprudential orientation based on the littera legis believed that alternative measures to prison could not be traced back to the concept of ‘substitute sanctions’ provided for by the Legislative Decree, since such measures are not ordered with the conviction sentence but by the Supervisory Judge. It deals with measures which would not be comparable neither to the conditional suspension of the sentence, nor to the substitute sanctions expressly indicated in the Legislative Decree, further motivating that the location abroad of the interested party could not ensure the activity of the execution of the measure by the office for the Office for the enforcement of alternative measures.

Only recently the jurisprudence of legitimacy has overcome the objections of the past by admitting the execution of the alternative measure of probation in another Member State of the European Union, even if under precise substantial and formal conditions, including expiation of a sentence of no less than 6 months (Article 6, Legislative Decree 38/2016, DECRETO LEGISLATIVO, 2016)

The common thread followed by the jurisprudence of legitimacy was based in summary on three considerations: the term ‘substitute sanction’ must be understood as a generic term, also adaptable to the assignment to the social service; the institutes listed in the art. Two of the legislative decree Legislative Decree 38/2016 are similar to the probation; the obligations and provisions set out in the art. Four of the legislative decree Legislative Decree 38/2016 are similar to those provided for the assignment to the social service, the art. Eight provides that the executing State is responsible for the beneficiary’s compliance with the obligations and provisions of the measure by communicating any breaches or failure to fulfil the obligations imposed to the Italian judicial authority. Article 8 of Legislative Decree 38/2016 provides that Italy resumes the exercise of the surveillance power, following communication from the executing State, if the person has escaped execution or no longer has residence in that State or dwelling. (Cass. Pen. Sez., 2018)

Today, the Surveillance Courts are almost unanimously inclined to grant assignment to social services abroad, if certain conditions are observed, as will be seen below.

The request must be directly made to the Supervisory Court when the suspended execution order is notified, pursuant to Article 656 of the Code of Criminal Procedure, which will have to decide whether the sentence can be carried out in the foreign State in which the convicted person resides, or in the foreign State in which he decided to carry out the sentence (the said request can be formulated even in the absence of a domicile or legal residence in the foreign Country). In fact, the request can be formulated even in the absence of registered residence in another state, however having to justify the reasons for which one wants to serve the sentence issued by Italy in another State.

In any case, the Surveillance Courts, despite being no regulatory requirement for attaching sworn foreign documentation, impose on the interested person, a documentary burden in Italian in order to facilitate the handling of situation by the Board, so that the Judicial Body can proceed without further investigative steps.

The jurisprudential orientation developed after the mentioned Legislative Decree has contributed to outlining the procedure to be followed which ultimately entails that the Italian supervisory judge grants the alternative measure, a judge of another European state manages the measure itself and, finally, again the Italian judge evaluates the outcome of the procedure for the purpose of declaring the extinction of the sentence (a specific declaration of competition of the issued sentence that extinguishes the imposed alternative measure and any other penal effects)

The procedure unfolds in various phases, the first of which is the granting of the alternative measure abroad (admissible exclusively for sentences of no less than 6 months) by the Italian Judicial Authority.

Once the measure has been granted abroad, it is up to the Public Prosecutor’s Office at the Judge indicated by the art. 665 c.p.p. and the Ministry of Justice takes care of the procedure aimed at the recognition and therefore the transfer of surveillance to the foreign State pursuant to articles. Five and eight of the Legislative Decree.

Supervision in the execution phase is transferred to the executing State after it has recognized the provision granting the alternative measure, it is then up to the Italian Judicial Authority to declare the extinction of the sentence, once it has received the necessary information on the positive outcome of the applied measure to be part of the executing State.

Once the foreign State communicates to Italy the recognition of the measure, its execution will become a matter of strict and exclusive competence of this State, which will be able to independently decide the methods of enforcement of the measure as alternatives to detention. The foreign State, therefore, will not have to request any type of authorization from Italy, nor report anything regarding the methods of enforcement of the sentence. Clearly the convicted person will have to carry out the sentence in an alternative regime to detention according to the specific methods that will be communicated to him/her since, in the event that serious violations of the measure are committed, Italy could resume jurisdiction over the sentence and, therefore, the convicted person would once again be forced to carry out the sentence in Italy.

The Italian jurisprudence of legitimacy and merit admits today the possibility of applying alternative measures in an EU Country, contributing from ruling to ruling to clarify some procedural aspects of this process that can be summarized as follows. The decision taken by the supervisory judge which must be transmitted to the EU State in which the measure must be enforced, is considered equivalent to a sentence according to the meaning given by the FD.

The responsibility for the management of the measures can be devolved to the administrative and judicial authorities of the European Countries responsible for their execution. There is an obligation for the individual to take a diligent part in allowing the carrying out of the investigative activity by the Office for the Enforcement of Alternative Sanctions (UEPE) an activity which can be considered exhausted because it is adequate for the investigative purposes with the production by the interested party of documentation in sworn translation, attached to the defence application. A request for probation to the social service abstractly admissible abroad can be rejected if it lacks suitable documentation to prove the deducted resources ‘remitted, in the form of photocopies of documents without signature, not translated and authenticated and therefore devoid of any certainty legal’. (Tribunale di sorveglianza di Torino, 2020)

Conclusions

Jurisprudence of merit and legitimacy, as we have seen, are almost oriented in support of the execution of alternative measures abroad. In the economy of Italian pronunciations, however, there are still only a few pronunciations, which are moreover non-homogeneous.

The guidelines are not stable, they introduce different admissibility requirements for the measure, especially with regard to the burdens of the requesting parties, and are often required in order to accelerate a procedure that would end up becoming cumbersome and complex. An intervention by the Legislator would be necessary to integrate the regulations currently in force, introducing specific provisions relating to the execution of alternative measures to detention in the European legal area.

Another desirable intervention would be an expansion of the catalogue of substitute sanctions applicable abroad.

Today the only ‘substitute sanction’ provided for by our penitentiary system, applicable abroad is the assignment to social services. Home detention and the benefit of a discounted sentence for good behaviour or early release are not applicable, since the management of the measure is entrusted to the foreign judicial authority and Legislative Decree 38/2016 does not contain specific provisions. The therapeutic assignment provided for by the article does not appear to be grantable in the European context. Article 94 of the Presidential Decree 309/1990, an institution with particular requirements not immediately comparable to simple custody which presupposes the taking charge of addicted people by an Italian addiction service such as the SERD (Service for Addiction) and specific prescriptions also in the medical field.

In the awareness that these are very specific criminal policy choices, an intervention by the legislator in the sense of defining the criteria for implementing alternative measures abroad and possibly coordinating the existing system with the European ones can only help in the difficult task of construction of a united Europe also on a legal and judicial level, aware of the coordination commitment, on the one hand legal and regulatory, on the other practical and operational, to which both the judicial bodies and the social service agents in the various Countries will be called upon.