26 Nov rehabilitation
Rehabilitation is an institute of substantial law counted among the extinguishing causes of the sentence and, as such, governed by the articles of the Criminal Code 178-181. It aims to facilitate the amendment of the offender by reintegrating him into the legal position enjoyed until the conviction was pronounced through the elimination of criminal consequences other than the main penalty, which constitute an obstacle to the normal performance of the individual's activity in the civil consortium. It is a cause for the extinction of the ancillary penalties and the penal effects of the sentence, characterized by a rewarding and promotional function. The granting of rehabilitation, by the Surveillance Court pursuant to art. 683 c.p.p. (see infra), postulates the demonstration of the applicant's repentance, inferable from regular conduct held in the period of time predetermined by law and up to the date of the decision on the application, as well as from its activation for the elimination of harmful consequences, derived from criminal conduct, even in cases in which no civil action has been filed in the cognizance procedure and therefore no decision has been made on civil obligations, arising from the criminal offence. Rehabilitation can be requested by anyone who has already been convicted (not also by the heir of the same, since it would be impossible to verify the requirement of repentance) with an irrevocable sentence or other similar executive order, when it has expired, from the time of completion of the custodial sentence and from the actual payment of the fine – unless the principal penalty is otherwise extinguished -, the minimum time prescribed by law (see infra) and the convict, in the same time frame, has given proof of certain repentance so as to reveal a choice of critical review of his criminal past. With the rehabilitation, the convict obtains the reinstatement of the legal capacity impaired by the sentence. The article 179 c.p., in regulating the institution of rehabilitation, indicates positive requirements, necessary for the useful resolution of the relevant application, time requirements, required for the admissibility of the application, and negative requirements, integrating causes impeding the granting of the benefit. The first condition for obtaining rehabilitation is that the convicted person has given "effective and constant evidence" of good conduct. In the reflection conducted by the jurisprudence of legitimacy and in the practical applications the relief is constant, for which, for the purposes of ascertaining good conduct, the failure to ascertain negative elements relating to the behavior of the convict is not sufficient, but the emergence of positive behaviors is required (Cass. Pen., Sez. I, n. 222/2022) symptomatic of the abandonment of criminal choices and of the successful recovery of the subject to a correct model of life; in other words, the mere abstention from committing acts constituting a crime does not take on any significance, how much "the establishment and maintenance of a lifestyle based on compliance with the rules of conduct commonly observed by the majority of the associates, even when the same are not criminally sanctioned or are, really, imposed only by those elementary and generally shared needs of mutual reliability which are the basis of every orderly and profitable social coexistence»1. It follows that, while total silence on conduct is insufficient to provide effective and constant evidence of good conduct, any negative note of behavior constitutes proof exactly contrary to that required by the Legislator to grant a license for good conduct: about, recently the Court of Cassation (Cass. Pen. Sez. I, n. 16655/2022) ruled that in the assessment of the evidentiary basis the judge is allowed to take into consideration, despite the presumption of not guilty which assists the defendant, also complaints, documents of criminal proceedings pending against the rehabilitating person, although not yet defined with a conviction, which relate to facts subsequent to those to which the question relates, whose concrete meaning is appreciated, demonstrative of the commission of deviant or irregular conduct, such as to contradict the maintenance of good behavior and to prove the failed recovery of the convict2. Yet, always in the same frame has been stated (Cass. Pen. Sez. I, n. 42697/2021) that even the mere attendance by the person convicted of organized crime of offended subjects and people inserted in the circles of organized crime, is incompatible with the assessment of good conduct3 if it is not a question of sporadic or occasional meetings, but of significant acquaintances who prove the intention not to escape from irregular living conditions and which have been the basis of the dedication to crime4. Finally, anticipating what will be said about negative requirements, it has been stated that even the non-payment of the costs of the proceedings may be the basis for a negative judgment on the existence of the requirement of certain repentance if the convict, despite the inertia of the office in charge of collection, failed to take steps to solicit the liquidation of said expenses. L’art. 179 c.p. comma 6 n. 2 prohibits the granting of rehabilitation to convicts who have not fulfilled the civil obligations deriving from the offence, unless he demonstrates that he is unable to fulfill them. Consider specifying that the impossibility of fulfilling the civil obligations deriving from the crime is not understood in the jurisprudential practice in a restrictive sense, as a consequence of economic impossibility alone, but includes all situations not attributable to the convict who, However, prevent him from fulfilling the civil obligations to which he is required in order to obtain the requested benefit (eg, impossibility of tracing the persons offended by the crime). E’ in any case the burden of the convict, intending to obtain rehabilitation, demonstrate that he has done everything in his power to compensate for the pecuniary damages, the offense caused and the expenses generated, as proof of his will to amend. Lately (Cass. Pen., Sez. I, n. 4648/2022) the Court of Cassation specified that the impossibility of fulfilling the civil obligations deriving from the crime must be reconciled with the need to avoid an unjustified impediment to the social reintegration of the applicant who has, on the other hand, given proof, through good behavior, to be deserving of rehabilitation and that therefore the judge, that, before the indication of an income situation equal to zero by the appellant, reject the application, it must indicate how the crime has led to the onset of civil obligations and whether people damaged by the criminally sanctioned conduct have been identified or are in any case identifiable. This is in terms of rehabilitation, the absence of income of the convict constitutes a hypothesis of removal of the limit to the granting of the benefit, assessable pursuant to the article 179 c.p., comma 6, n. 2, since this circumstance justifies the non-fulfilment of the civil obligations for a crime. The Legislator, indeed, has expressly provided for the zeroing of the negative value of the non-fulfilment of assets where the applicant demonstrates that he is unable to fulfill and it is therefore clear that this impossibility, once demonstrated through impossibility, exhausts the theme of objection. Likewise, before the allegation of impossibility to trace the offended parties, the trial judge, where it intends to reject the application, must indicate the persons offended by the crime or, However, the way in which these people can be identified, in order to respect the dictates on motivation established by the legitimacy jurisprudence (Cass. Pen., Sez. I, n. 4648/2022 cit.). L’art. 179 comma 6 n. 1 excludes the granting of rehabilitation to those who have been subjected to security measures, unless the provision has been revoked, and with the sole exclusion of the security measures of confiscation and expulsion of the foreigner. The provision in question finds its justifying reason in the social danger associated with the application of security measures, social danger which is clearly incompatible with the amendment of the offender, placed at the base of the rehabilitation institute. In the case of application of the security measure, only the relative revocation can allow the presentation of the rehabilitation request and the granting of the benefit by meeting the other requirements. As regards the exceptions indicated above, that regarding confiscation is related to the patrimonial nature of the security measure and to the irrevocability of the provision that provides for it. The Legislator intended to anchor the verification of the positive and negative requisites to a precise and delimited time frame in its extension, on the assumption that a certain and enforceable penalty has been imposed or, alternatively, susceptible to extinction: about this, it should be remembered that the law 11 June 2004 n. 145 lowered the deadlines, with the intention of facilitating the achievement of the benefit in question, so that, in the new formulation, art. 179 comma 1 c.p. expressly prescribes that rehabilitation can be granted «when at least three years have elapsed (instead of the original five) from the day on which the principal sentence was carried out or extinguished in any other way" and the convict in the same period of time gave proof of good conduct. Jurisprudence (Cass. Pen., Sez. I, n. 55063/2017) believes that the three-year delay period is mandatory and not susceptible to interpretation or discretionary appreciation in its operation: that is, since the aforementioned time frame is aimed at allowing the judge to appreciate the requirements for the granting of the benefit. The paragraphs 2 e 3 dell’art. 179 c.p. establish differentiated and protracted terms for the admission to rehabilitation of repeat offenders6, except in the case of simple recurrence, in one case (eight years, instead of the previous ten), of habitual offenders, professional and trendy, in the other (10 years, term unchanged): the normative datum demonstrates that the deviant and criminal behaviors prior to the conviction do not in themselves constitute impediments, but they justify greater rigor in the assessment of the application assumptions, because they determine the increase of the minimum period during which the convict must have maintained good conduct. As for the identification of the dies a quo for the calculation of the term referred to in art. 179 comma 1, c.p. the same usually coincides with the day on which the convict finishes serving the prison sentence, c.d. end of sentence. If only the monetary penalty has been applied or in the case of joint application of the custodial sentence and a monetary penalty, reference is made to the date of full payment of the monetary penalty because this also contributes in the same way to constituting the main penalty (Cass. Pen., Sez. I, n. 6923/2022; Cass. Pen., Sez. I,n. 27363/2021). In the case of habitual offenders, professional, by tendency the term of 10 years from the day on which the order for assignment to a workhouse or agricultural colony was revoked. If the convict has been admitted to the benefit of the conditional suspension of the sentence, the dies a quo to obtain rehabilitation coincides with the same from which the term of the conditional suspension starts: in particular, in the case of conditional suspension pursuant to art. 163 comma 1, 2, e 3 c.p., the ordinary term for rehabilitation starts from the same moment as the term for the suspension of the sentence, without waiting for the extinguishing effect related to the conditional suspension, while in the hypothesis of annual conditional suspension pursuant to art. 163 comma 4 c.p., rehabilitation is granted at the end of the one-year term indicated by the same paragraph 4 provided that the other conditions required by art. 179 c.p.: this is a further innovation of the law 145/2004 which recognizes the interest in requesting rehabilitation also in relation to conditionally suspended sentences due to the greater extent of the benefits of rehabilitation. In the event that the convict has been admitted to conditional release, the term starts from the date of the provision for admission to conditional release and not from the date in which the sentence was declared extinguished, given the retroactive effect of the occurrence of the condition. When the sentence has been extinguished by improper amnesty or pardon, the deadline runs, not by the applicable judicial provision, which is purely declarative in nature, but from the date of entry into force of the decree of clemency. Rehabilitation reinstates the convict in the legal capacity impaired by the sentence, through the extinction of accessory penalties and penal effects.
The ancillary penalties on which the rehabilitation operates are those that follow by right and automatically from the sentence and which apply regardless of the duration of the main sentence, since the latter, for rehabilitation purposes, must have already been performed or must be extinguished:
- disqualification from public office (art. 28 c.p.),
- disqualification from a profession or an art (art. 30 c.p.),
- the inability to negotiate with the public administration (art. 32 quater c.p.),
- loss of parental authority (art. 34 c.p.),
- the suspension from the exercise of managerial offices of legal persons and of the company (art. 35 to c.p.).
The discipline of art. 178 c.p. does not apply to statutory interdiction (art. 32 c.p.), which is valid only during the principal sentence or upon publication of the sentence (art. 36 c.p.), whose execution must be immediate and does not determine one status of legal incapacity. As regards "the other penal effects of the sentence" (art. 178 c.p.), these are identified in all those consequences of an afflictive nature, other than accessory penalties, directly resulting from the conviction, leading to a decrease in the legal capacity of the convict. In the absence of a legal definition of criminal effects, the United Sections of the Court of Cassation have specified that the penal effects are characterized by being the consequence of an irrevocable sentence of conviction, and not also of other discretionary provisions of the public administration which presuppose conviction; as well as for their disciplinary nature even if incidents in a field other than that of substantive or procedural criminal law (Cass. Pen. SS. UU. 20.04.1994). In this definitional framework, rehabilitation prevents the calculation of the sentence for the purposes of recidivism, as well as the declaration of habituality and professionalism in the crime; allows the rehabilitated person to benefit from amnesty and pardon conditioned by the lack of previous convictions; eliminates the preclusive effects of the conviction for the purpose of granting Italian citizenship (art. 6 comma 3 law 91/1992, Tar Brescia sentence n. 1731/2010). The extinction of the penal effects occurs «unless the law provides otherwise»: this reserve clause refers to the suspended sentence, given that according to the provisions of art. 164, first paragraph, n. 1, c.p. the previous sentence, even though rehabilitation has taken place, precludes the granting of probation; to the judicial pardon that pursuant to art. 169, comma 4, c.p., it is likewise forbidden to the convict despite the rehabilitation. The extinguishing effect occurs from the date on which the rehabilitation measure becomes final (operation from now) and not from the one in which the conditions for the granting of rehabilitation occur since the ruling has a constitutive value by reconnecting to the appreciation of the requirements established by law by the Judicial Authority. The provision granting rehabilitation, become irrevocable, it is noted in the sentence by the Registry, as well as the revocation provision (cfr. art. 192 disp. to. c.p.p.).