Absolute foreclosure on home detention is unlawful for the over seventy recidivist convicted
07-04-2021
With decision no. 56 of 2021, filed on March 31, 2021, the Constitutional Court established that those over seventy years old sentenced to a prison sentence can be admitted to home detention even if declared repeat offenders.
The decision issued eliminates the absolute foreclosure established against them by the penitentiary system.
In the light of the sentence in question, therefore, the surveillance judiciary will have to assess on a case-by-case basis whether the offender is actually deserving of access to the particular alternative measure to detention, also taking into account his possible residual social danger.
The Court observed that home detention for people over seventy is inspired by the principle of humanity of the sentence, sanctioned by Article 27 of the Constitution, the measure being based on a double presumption, the first relating to a general decrease in the social dangerousness of the elderly convict , adequately contained through the permanence in the home, according to the prescriptions of the judge and with the necessary checks and, the second, relating to the fact that "the burden of suffering associated with the stay in prison increases with age, and with the consequent increasing need, on the part of the condemned, for personalized care and assistance, which can hardly be assured in an intramural context, characterized by forced coexistence with a large number of other prisoners of all ages ".
In light of the above, the Judge of the Laws underlined the anomaly of the provision examined, being the only one, in the entire penitentiary system, which leads to radically preclusive consequences of an alternative measure against those who have been convicted with the aggravating the relapse.
In the opinion of the Court, although the recognition of the recidivism by the conviction judge does not automatically derive from the fact that the accused has already been convicted of a previous crime, it nevertheless entails an individualized judgment of greater guilt and dangerousness of the offender and this judgment it is formulated solely for the purpose of quantifying the sentence to be imposed, therefore without reference to the actuality and specificity of the reasons that could justify the execution of the sentence in home detention.
According to the Constitutional Court, among these should be considered "the changes that have occurred in the person of the offender, and the possible re-education process in the hypothesis already undertaken" by the convict after the sentence, including the time already spent in prison, as well as the greater suffering determined from detention on an elderly person.
The absolute foreclosure established by the law was therefore considered unreasonable, also in relation to the principles of re-education and humanity of the sentence, in accordance with the constant jurisprudence that considers absolute foreclosures to access contrary to articles 3 and 27, third paragraph, of the Constitution. prison benefits and alternative measures to detention.
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