When the impedimental offense prevents the offender's access to probation to social services

The case:

The Supervisory Court of Milan rejected the application for probationary custody, since the convicted still had to expiate a residual sentence exceeding the limit of 4 years of imprisonment and arguing that the convicted should atone for a prison impediment offense, or a conviction for aggravated robbery, included in the provision pursuant to art. 4 bis penitentiary system.

The defense correctly objected that the penalty for the crime of aggravated robbery had already been declared extinct following the positive outcome of thereliance on therapeutic trial and that the cumulation measure issued by the Milan Public Prosecutor's Office, on which an application for admission to probationary assignment to the social service was proposed in particular cases, determined a residual penalty to be expiated equal to 4 years and 9 months of imprisonment and therefore less than the 6-year limit set by Presidential Decree no. 309 of 1990, art. 94.

The convict represented that as a result of the presumed equal to 4 years and 8 months and the concession of the early release for 180 days, he still had to execute a residual of only 4 years and 9 months of imprisonment which made the request for probationary assignment to the social service in particular cases, having lowered the limit of the sentence to be expiated below the threshold of 6 years.
The Supreme Court therefore annulled the order issued by the Supervisory Court of Milan.

The clarifications of the Constitution Court on the impediment and award permits:

The sentence of the Constitutional Court n. 253/2019 eliminates the obligatory nature of collaboration with the justice system provided for by art. 4 bis penitentiary system and the obligation for the "non-collaborator" to undertake a judgment to verify a situation of impossibility or bad debt of a useful collaboration, which condition for obtaining i premium permissions according to art. 4 bis paragraph 1-bis penitentiary system.

Therefore, the foreclosure to the admissibility of the premium permit for i convicted of a hindering crime that is, the principle according to which the "condemned impediment" determines regardless of a dangerousness judgment against the same has been eliminated, still remaining objective links with organized crime.
Likewise, the obligation for the "condemned impediment"That he did not collaborate with the Justice to prove that his collaboration would still be irrelevant.

The clarifications of the Constitutional Court on the impediment and probation offense:

The Constitutional Court does not include in the above principle the alternative measures of external work, of the semi-liberty, ofreliance on probation and of parole.

Therefore, if these measures are requested by a "condemned impediment"Imply a preliminary verification of collaborative conduct or the demonstration, against the convict, of the impossibility or non-collection or irrelevance of the collaboration with the justice system.

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