28 Sep suspension of the trial with probation

Process suspension with probation is an alternative way of defining the process, activated from the preliminary investigation stage, through which it is possible to reach a ruling of acquittal for extinction of the crime, where the probationary period accessed by the suspect / defendant, admitted by the Judge in the presence of certain regulatory conditions, ends with a positive result. The suspension of the trial with probation, entered into force in 2014, it is an alternative way of defining the process, activated from the preliminary investigation stage, through which it is possible to reach a ruling of acquittal for extinction of the crime, where the probationary period accessed by the suspect / defendant, admitted by the Judge in the presence of certain regulatory conditions, ends with a positive result. It is an institution that has a consensual nature and function of social and individual reparation of the wrong connected to the commission of the crime: with this connotation, justifying the tensions with the principle of the presumption of not guilty, revealed by the anticipation to the trial phase, and even procedural, the consequences of an acknowledgment of liability. Already known from the Italian procedural system, in the juvenile sphere and in the execution phase in the proceeding for adults, the institute in question was extended with the aforementioned law to the rite against adults to remedy the critical issues of the penal system, substantially attributable to procedural inflation and prison overcrowding. With reference to the latter, yes, in particular, intended to provide a concrete response to European expectations regarding the need to reform the sanctioning system, focused on inframural detention, response made more urgent by the sentence imposed on Italy in the Torreggiani case against Italy of 8.1.2013. For the purposes of admission to the institute, the legislator has established formal requirements, to protect the voluntary nature of the choice, and application assumptions of both an objective and subjective nature, which imply assessments of the compatibility of the crimes or types of delinquency with the institution in question.
In particular, as for the former, the request must be formulated by the suspect/accused, orally or in writing, personally or through a special attorney, with authenticated signature in case of granting of the special power of attorney: the ratio of the special power of attorney is evidently found in necessity, for the suspect/accused, of awareness of the afflictive contents of the test and of the lack of an assessment of the merits of responsibility. The request in question must be accompanied by a treatment program drawn up by the competent External Criminal Execution Office for the area, or by a request addressed to the same Office and aimed at its processing: so much, due to the extremely short deadlines, as you will see, where it is possible to submit an application for access to the institute.

As regards the objective and subjective conditions, the legislator has provided that: the request refers to a crime punishable by a fine, with a prison sentence of up to four years or a crime that falls within the scope of art. 550 c.p.p. under the jurisdiction of the monocratic court with direct summons for trial.

In practice, the problem immediately arose of identifying the criteria for defining the perimeter of the criminal sanction which makes the request for suspension of the proceedings with probation of the accused admissible: in particular, the question was asked whether or not it was necessary to resort to the criteria for determining the penalty specified in art. 4 c.p.p. regarding the identification of competence, which provide that the penalty established by law for each committed or attempted crime must be taken into account and the continuation, of the recurrence and the circumstances, with the exception of aggravating circumstances for which the law establishes a different type of penalty and those with a special effect. And it is clear that access to one or the other solution was capable of restricting and, respectively, to broaden the institution's scope of operations. The practical impact of the solution adopted made a nomophylactic intervention urgent, resulting in the remission of the question to the United Sections. The Supreme Assembly (Cass., SS.UU., 31/03/2016, dep. 01/09/2016, Sorcinelli) adhering to the orientation that has opted for the extension of the application scope of testing, ruled that, also due to the failure of the letter of the law to refer to accidentalia delicti, for the purposes of identifying the crimes for which the suspension of the proceedings with probation is permitted, it is necessary to have regard exclusively to the maximum statutory penalty envisaged for the basic case, regardless of the aggravating circumstances, including those for which the law provides for a penalty of a different kind from the ordinary one of the crime and those with a special effect.

As for the subjective conditions, the request must come from someone who has not been declared a criminal or habitual offender, professional or trendy, by anyone to whom it has not already been granted and then revoked, or by the person to whom it has not been granted with a negative result: hypothesis, all of these considered, which it is subtended, respectively, in root (for offender types) or in the specific case (for revocation and negative outcome) an assessment of the undeservingness of the opportunities offered with the original or subsequent access to the institution. It is not contemplated among the subjective presuppositions, together with the typologies of qualified delinquency set out, recidivism nor is it foreseen that the person concerned must admit his or her responsibilities in order to access the institution. The request for admission to the suspension of the trial with probation can be made not only after the exercise of the criminal action, but also before, to this end, providing that the public prosecutor himself, where the conditions are met, give notice to the suspect regarding the possibility of accessing the institution in question.

During the preliminary investigations, the request must be submitted to the registry of the judge for preliminary investigations who must forward it to the prosecutor for the opinion. It is reasonable, however, as a matter of practice, hypothesize a contextual filing of the request to the prosecutor's secretariat, who actually holds the file, also in order to allow the issue of the opinion within five days: term, the latter, of an ordering nature and as such not stigmatized in the case of inertia. If the opinion is positive, the public prosecutor must send the file together with the formulation of the indictment to the judge so that he can fix the hearing in chambers and give notice to the parties and to the offended person who has the right to be summoned and heard, under penalty of the possibility of making an appeal to cassation. After the prosecution has been exercised, the request must be presented: in the ordinary ritual, within the conclusions at the preliminary hearing; in the very direct rite and in the proceeding with direct summons for trial, until the opening of the hearing; in the proceeding by decree, with the notice of opposition; in immediate judgment, within 15 days from notification of the immediate judgment decree. Once the application accompanied by the treatment program has been presented, or from the request forwarded to the UEPE and aimed at its processing, the judge carries out the evaluation during the same hearing (unless postponed pending the elaboration of the programme) or in a chamber hearing of which notice must be given to the parties and to the offended person to guarantee the right to be heard. The judge, which can order the appearance of the interested party to verify the voluntariness of the request, must assess that the formal requirements and conditions of applicability exist; that the existence of a cause for dismissal does not appear from the documents, in which case he must issue a sentence pursuant to art. 129 c.p.p.; that the planned program is sufficiently individualized e, as such, suitable with regard to the entity of the fact and the ability to commit a crime pursuant to art. 133 c.p.; in the end, that the subject does not commit further crimes during the trial period. For the purposes of the assessment, the judge uses the documents contained in the file at his disposal at the stage of the trial in which he is located, what is produced by the interested party, what is collected and offered by the External Criminal Execution Office during socio-family investigations and related assessments, as well as the results of any official investigations. If he deems that the conditions are not met, he issues a rejection order which is deemed to be appealable together with the sentence. If, on the other hand, he believes that all the conditions are met, issues an admission order, which is registered in the criminal record pursuant to art. 3, became. I-bis), with which it orders the suspension of the trial for a period that cannot exceed one year in the case of crimes punishable with a fine, two years in the case of crimes punishable by prison sentence.