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Italy: Overhaul of Criminal Penalties

(May 28, 2014) The Italian Parliament recently adopted Law 67 of April 28, 2014, regulating criminal penalties not involving imprisonment and containing measures on prison reform. (Legge 28 aprile 2014, n. 67, NORMATTIVA.) The overall purpose of the Law is to establish punitive measures that are alternatives to incarceration, as a response to the perceived insufficiency of imprisonment penalties to deal with the reality of increased crime in the country. (Prime riflessioni sulle nuove disposizioni in materia di sospensione del procedimento con messa alla prova e nei confronti degli irreperibili, RELAZIONE [REPORT]. n. III/07/2014 (May 5, 2014), Corte di Cassazione di Italia [Italy’s Supreme Court] website; for the legislative history of the Law, see Proposta di legge: S. 925. – FERRANTI ed altri; COSTA: “Deleghe al Governo in materia di pene detentive non carcerarie e di riforma del sistema sanzionatorio. Disposizioni in materia di sospensione del procedimento con messa alla prova e nei confronti degli irreperibili” (approvata, in un testo unificato, dalla Camera e modificata dal Senato) (331-927-B), Parlamento Italiano website (Apr. 2, 2014); Noam Benjamin, Altro fango dalla Germania: l’Italia è criminale [More Mud from Germany: Italy Is Criminal] IL GIORNALE.IT (May 15, 2014).)

The Law has been well received by qualified stakeholders in Italy, who have generally welcomed the less punitive approach of the new measures. (Depenalizzazione, Messa Alla Prova e Clandestinità, Avvocati BGP website (May 9, 2014).) Law 67 covers seven principal areas: (a) home detention; (b) detention time; (c) community work as alternative punishment; (d) transformation of criminal violations into administrative violations; (e) decriminalization of illegal immigration (with some exceptions); (f) probation measures; and (g) elimination of provisions on unjustified absence of the accused from criminal procedures. (Depenalizzazione, messa in prova e clandestinità: la legge in Gazzetta: Legge 28.04.2014 n° 67, ALTALEX (May 5, 2014).)

In particular, the Law delegates powers to the central government to enact legislative decrees, within eight months of the Law’s enactment (Legge 28 aprile 2014, n. 67, art. 1(2)), amending the criminal penalties system in accordance with several principles outlined in the Law (id. art. 1(1)). These criteria refer, among others, to the classification of penalties (life sentence, imprisonment, home detention and arrest, fines, and payment of reparations) (id. art. 1(1)(a)) and to the gradation of penalties according to the gravity of the offense (id. art. 1(1)(b)-(h)). The Law allows the judge, in certain cases, to impose the obligation on the sentenced person to perform community service work (id. art. 1(1)(i)-(l)).

Law 67 also charges the central government with the task of enacting legislative decrees within eighteen months from the Law’s enactment (id. art. 1(3)), aimed at amending the national prison system and creating administrative and civil penalties in accordance with the criteria established in the Law (id. art. 2(1)). The main criterion is the transformation of crimes currently punished exclusively by fines or payment of reparations into illicit administrative acts punished with the new measures, such as community service (id. art. 2(2)(a)). The Law contemplates exceptions to the new rule related to, inter alia, crimes related to zoning, the environment, food safety, workplace security, public safety, gambling, weapons, political elections, and intellectual property (id.). The Law also sets forth guidelines according to which the central government must determine the penalties for the new types of illicit administrative conduct (id. art. 2(2)(e)).

The Law amends the Criminal Code by allowing an accused person to request the suspension of the criminal procedures against him and instead become subject to the imposition of probation, in cases where only a fine or incarceration for not more than four years is the penalty contemplated for the crime (id. art. 3(1)). This measure on suspension of the regular mandated procedure involves the rendering of community service by the accused and the payment of reparations for the damage caused by the crime (id.). The Law also amends the Criminal Code with respect to the statute of limitations for certain crimes (id. art. 12).

Additionally, the Law amends legislative and regulatory instruments related to prisons and to the registration of administrative penalties to make them conform to the Law’s provisions (id. art. 6). It also amends the Criminal Procedure Code concerning procedural inferences made as a result of an accused person’s failure to appear at preliminary hearings, by allowing the accused to provide justifiable reasons for his absence (id. art. 9(4)).