JUDGMENT NO. 162
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Judges: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has delivered the following
JUDGMENT
in the constitutional legitimacy proceedings concerning Article 14, paragraph 2-ter, of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), initiated by the Ordinary Court of Oristano, Single Criminal Division, in the criminal proceedings against P.L. S. with order of 14 December 2022, registered under no. 22 of the 2024 Orders Register and published in the Official Gazette of the Republic no. 10, special series I, of the year 2024.
Having seen the intervention of the President of the Council of Ministers;
Having heard the Judge Rapporteur Francesco Viganò in the deliberation chamber of 24 September 2024;
Deliberated in the deliberation chamber of 24 September 2024.
Considered in fact
1.– By order of 14 December 2022, the Ordinary Court of Oristano, Single Criminal Division, raised, with reference to Articles 3, first paragraph, 13, first paragraph, and 27, third paragraph, of the Constitution, questions of constitutional legitimacy of Article 14, paragraph 2-ter, of Legislative Decree No. 159 of 6 September 2011 (Code of Anti-Mafia Laws and Prevention Measures, as well as new provisions on anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of 13 August 2010), insofar as it provides that, in the event of suspension of the enforcement of special surveillance during the time in which the person concerned is subjected to detention for the execution of a sentence, the court verifies the persistence of his social dangerousness only if the state of detention has lasted for at least two years.
1.1.– The referring court is called upon to decide, in summary proceedings, on the criminal liability of P.L. S., subjected to the prevention measure of special surveillance of public safety, for multiple violations of Article 75, paragraph 1, of the Anti-Mafia Code, for having transgressed, on five separate occasions between December 2019 and March 2020, the prescription not to leave his home during night hours.
P.L. S. was subjected to the measure of special surveillance of public safety for a period of one year by virtue of an enforcement decree of 25 January 2018, which had been notified to him on 5 February 2018. The enforcement of the provision, however, had remained suspended from the beginning, as the person concerned was detained for the execution of a sentence by virtue of an execution order of 17 January 2018. The special surveillance therefore became enforceable only when the person concerned was released from prison, on 23 April 2019.
1.2.– Regarding the relevance of the questions raised, the referring court observes that, if they were accepted, "the discipline that currently imposes (similarly to what is provided for security measures) the ex officio re-evaluation by the Court […] of the social dangerousness of the recipient of the special surveillance of P.S. prior to the execution of the measure ordered" should be retroactively applied. In the specific case, therefore, since such an ex officio re-evaluation had not been carried out, "the suspension of the execution of the prevention measure could not be said to have ceased automatically simply because the execution of the custodial sentence ceased – by means of mere notification of the original enforcement provision – but should be considered to persist until the competent judge proceeds to verify again the social dangerousness of the person subjected to the measure [:] only compliance with this process would constitute a condition for the effectiveness of the prevention measure." This is all the more so in a case such as that which is the subject of the proceedings a quo, in which "not only was the prevention measure ordered for the duration of only one year (which had already entirely elapsed at the time when the measure was deferredly enforced), but [P.L.] S. had also benefited – during the imprisonment suffered in the meantime – from early release and parole permits with provisions attesting to participation in the re-educational work and the correctness of his intramural conduct."
Consequently, if the questions were accepted, the criminal liability of the defendant for the violations charged could not be affirmed, on the basis of the principles established by the case law of legitimacy regarding the impossibility of considering the crime in question to be configured where the required re-evaluation of social dangerousness has not been carried out after the suspension of the execution of special surveillance due to the state of detention for the execution of a sentence of the person concerned (Court of Cassation, United Criminal Divisions, judgment 21 June-13 November 2018, no. 51407, is cited).
1.3.– In terms of non-manifest lack of merit, the referring court recalls first of all how the challenged provision was introduced following the judgment no. 291 of 2013 of this Court, which had considered incompatible with the Constitution a presumption of persistence of the social dangerousness of the recipient of the prevention measure, where the latter had been suspended during his detention for the execution of a sentence.
The principles expressed in that ruling would, moreover, be confirmed by recent case law of legitimacy, which would tend towards a "more and more evident valorisation of the requirement of the current social dangerousness at the time of the application of restrictive personal liberty prevention measures, thus leading to the progressive overcoming of presumptions – even relative ones – of the social dangerousness of the subjects who are their recipients" (Court of Cassation, Sixth Criminal Division, judgment 7-9 July 2020, no. 20577; Second Criminal Division, judgment 14 January-3 March 2020, no. 8541, are cited). This case law would, moreover, derive its foundation from a ruling of the United Criminal Divisions, which – in line with the aforementioned judgment no. 291 of 2013 of this Court – would have sanctioned the overcoming of the presumption of dangerousness also towards subjects suspected of belonging to mafia-type associations (Court of Cassation, United Criminal Divisions, judgment 30 November 2017-4 January 2018, no. 111).
It is indeed true, continues the referring court, that these rulings of the case law of legitimacy are located on the different level of the actuality of the social dangerousness of the recipient of the measure at the time of its adoption. However, they would confirm the principle according to which "social dangerousness represents, and must necessarily represent, the core of personal prevention", the measures in question being inserted in the constitutional system "only if they are purposefully oriented to counteract a condition of currently existing dangerousness". In other words, observes the judge a quo further, "dangerousness – in the system of personal prevention – is not only a presupposition for the application of the measures, but also the basis of their persistence, especially in cases of suspension or postponement of the enforcement of the same". This is also in deference to the principles established by the European Court of Human Rights on the matter, which would require a "necessary verification of the permanence of the dangerousness of the recipient of a prevention measure in order to ensure the conditions of compatibility of the discipline laid down for them by domestic law with the freedom of movement enshrined in Article 2, Protocol 4 ECHR" (ECHR, Grand Chamber, judgment of 6 April 2000, Labita v. Italy, is cited).
1.3.1.– More specifically, the challenged provision would be in contrast with the principle of equality set forth in Article 3, first paragraph, of the Constitution, in relation to the tertium comparationis represented by Article 679 of the Code of Criminal Procedure, due to the "unjustified differential treatment between subjects who find themselves in analogous positions", and specifically between persons who are recipients of security measures and of prevention measures. These measures would have a similar ratio, being "similarly oriented to prevent the commission of crimes by subjects assessed as dangerous and to promote their recovery towards orderly social living". While, in fact, in matters of security measures, it would be necessary to proceed with a "double assessment of dangerousness (at the time of the deliberation with the judgment issued at the end of the trial and, subsequently, at the time of the actual execution of the measure)", the challenged provision would provide for a "rigid time frame" of two years, during which the execution of the prevention measure is suspended for the execution of a sentence, "below which it is not possible to verify whether the social dangerousness of the person subjected to prevention has in fact remained unchanged (with the consequent maintenance of a iuris tantum presumption of the permanence of social dangerousness)".
The challenged provision, moreover, would unreasonably differentiate the treatment of cases of detention for the serving of a sentence lasting for at least two years, compared to which a re-evaluation of dangerousness is instead required prior to the effective application of the measure. The unreasonableness of the differential treatment between the two situations would be inferred from the fact that the mechanical exclusion of the ex officio re-evaluation provided for in the case of suspension of less than two years "does not allow to take into account those cases in which detention, even if brief, has attenuated or even excluded the concrete dangerousness of the subject who is the recipient of the prevention measure". Furthermore, this rigid threshold would be "unfair also from the point of view of the lack of consideration of the duration of the prevention measure originally ordered, thus precluding from the outset the re-evaluation even in cases in which – such as the one in question – the postponement of the execution of the special surveillance measure of P.S. has continued beyond the overall duration of the measure ordered with the genetic provision".
1.3.2.– The challenged provision would then be in contrast with Article 13, first paragraph, of the Constitution. In fact, it would only be "the need to contain the concrete and current social dangerousness that represents the core of the system of personal prevention measures and constitutes the reason for the limitations on personal liberty that are imposed with them".
The referring court also observes that "the measures in question can be considered legitimate insofar as they respect the requirements to which Article 13 of the Constitution subordinates the lawfulness of any restriction on personal liberty, among which is the necessary proportionality of the measure with respect to the legitimate objectives of prevention of crimes (proportionality which is a systemic requirement in the Italian constitutional system, in relation to every act of the authority likely to affect the fundamental rights of the individual)" ( judgment of this Court no. 24 of 2019 is cited). The challenged provision would entail "a violation of the requirement of proportionality of the restrictive provision with respect to the special-preventive purpose pursued […], insofar as it claims to derive the enforcement of personal prevention measures and the strongly restrictive prescriptions related to them from the sole deliberative provision of the measure and in the absence of an ex officio re-evaluation of the social dangerousness which must constitute the basis, not only of application, but also of enforcement, and legitimise its persistence in cases of suspension or postponement of its enforcement".
This contrast would not be remedied by "the possibility currently provided for by the challenged provision […] that it is the initiative of the person subject to prevention to solicit the activation of a procedure aimed at the re-evaluation of the current nature of the presupposition", since "at the basis of any provision limiting personal liberty […] the re-evaluation of the current nature of the presuppositions legitimising the application of the measure must be automatically provided for".
1.3.3.– Finally, the challenged provision would be in contrast with Article 27, third paragraph, of the Constitution, since "the introduction of a rigid time threshold […] below which it is never necessary to proceed with the re-evaluation of social dangerousness in order to apply the personal prevention measure is necessarily equivalent to arguing that in this period of time the serving of the sentence cannot have produced any effect in terms of the resocialisation of the convicted person", and therefore "it would be equivalent to introducing a presumption of unsuitability of custodial sentences that have a duration of less than two years to tend towards a re-educational function".
2.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, requesting that the questions be declared inadmissible or unfounded.
2.1.– The questions would first of all be inadmissible for lack of relevance.
The State Attorney General's Office observes in this regard that "if, as in this case, the detention has lasted less than two years, the person subjected to prevention is nevertheless given the option of submitting a request, pursuant to Article 11, paragraph 2, of Legislative Decree 159/2011, aimed at introducing a procedure for verifying the persistence of his social dangerousness". The positive outcome of this request could therefore have "terminated the prevention measure before its effects were restored", which would have allowed the person concerned not to incur the crime charged.
The inadmissibility for irrelevance of the questions of constitutional legitimacy referred would derive, on the other hand, from the consideration that "the additive judgment hoped for by the [referring court] would not in any case have the effect of acquitting the defendant, not affecting, as a form of abolitio criminis, the contraventional circumstance charged, the existence of which must be evaluated at the time in which the S.P.L. […] has repeatedly and knowingly violated the prescriptions of the special surveillance, the substantial presuppositions of which he, first of all, although he could have done so, has never requested the re-evaluation of".
Furthermore, "[h]ypothesizing the relevance of the question submitted for the purposes of the decision to be made on the guilt of the defendant, as the referring court does, corresponds […] to believing that on the dates of the violations committed […] the chamber hearing to verify social dangerousness would not yet have been held, which is at the very least unreasonable to suppose".
2.2.– The question would in any case be unfounded on the merits.
2.2.1.– With regard to the alleged violation of Article 3 of the Constitution, the difference in discipline compared to that laid down in matters of security measures by Article 679 of the Code of Criminal Procedure, assumed as a tertium comparationis by the referring court, would overcome "easily the test of reasonableness […] precisely because of the […] differences between the two institutions": a difference that would have been recognised by this Court in the judgment no. 291 of 2013, when it specified that these two categories of measures "remain in any case distinct due to differences in structure, area of competence, field and manner of application", which excludes "an indiscriminate constitutional requirement of homologation of the respective disciplines".
In particular, security measures would presuppose the commission of a specific act of crime or near-crime, so that "the period of restriction of personal liberty suffered for the commission of that same criminal offense or act having criminal relevance in any case, could have had a positive influence on the subject's attitude towards the values of civil coexistence, removing the need to apply the measure in question". Prevention measures would instead be independent from the commission of an act having criminal relevance, and could "be adopted against persons deemed socially dangerous due to their conduct of life and their criminal profile". Therefore, the cessation of detention for the serving of a sentence could have "achieved the re-educational purpose, with reference to a certain unlawful conduct", but "would not necessarily eliminate the social dangerousness of the recipient of the special surveillance of PS, possibly expressed also through further antisocial conduct".
Furthermore, it was this Court, in the judgment no. 291 of 2013, that pointed out that "the verification of social dangerousness can be reasonably omitted in the face of the brevity of the period of postponement of the prevention measure which does not make it necessary to re-actualise the assessment of dangerousness". The legislator would thus have "taken on the task of carrying out an adequate and rational balancing between the need to make the judgment of social dangerousness contained in the enforcement decree of the security measure of special surveillance current, if dated, and that of conferring a certain degree of effectiveness and stability to the judgment itself, as it is based on evaluations that are suitable for projecting the unfavourable prognosis towards a horizon of short duration". Nor could it be considered that the dangerousness ascertained by the judge "can be eliminated by a sentence being served, when detention continues for a non-significant period of time, and without, moreover, eliminating contacts with the outside world as is typical of these cases in which recourse to beneficial instruments is frequent".
2.2.2.– With regard to the alleged violation of Article 13 of the Constitution, according to the State Attorney General's Office, the referring court would start "from the erroneous assumption that special surveillance of public safety, by virtue of the type of prescriptions that can be applied, would affect the personal liberty of the recipient of the measure".
In any case, in cases in which detention for the serving of a sentence has continued for a period of time less than two years, there would exist "only a reasonable relative presumption of persistence of social dangerousness", which can be overcome "by means of the presentation, by the person subjected to prevention who expresses an interest, of a request aimed at soliciting the initiation of the chamber proceedings aimed at re-evaluating his social dangerousness".
2.2.3.– Finally, with regard to the alleged contrast with Article 27, third paragraph, of the Constitution, the State Attorney General's Office reiterates that "prevention measures are independent from the realisation of an act having criminal relevance and can be adopted against persons deemed socially dangerous due to their conduct of life and their criminal profile", also noting that "the cessation of the state of detention does not necessarily coincide with the definitive serving of the sentence, detention in the enforcement phase being able to be replaced by alternative measures compatible with the simultaneous execution of the special surveillance of public safety".
Considered in law
1.– The Court of Oristano has raised, with reference to Articles 3, first paragraph, 13, first paragraph, and 27, third paragraph, of the Constitution, questions of constitutional legitimacy of Article 14, paragraph 2-ter, of the Anti-Mafia Code, insofar as it provides that, in the event of suspension of the enforcement of special surveillance during the time in which the person concerned is subjected to detention for the execution of a sentence, the court verifies the persistence of his social dangerousness only if the state of detention has lasted for at least two years.
2.– The questions, extensively reasoned in terms of their non-manifest lack of merit, are relevant in the proceedings a quo, and are therefore admissible.
2.1.– The referring court is a judge in criminal proceedings for the contravention, provided for in Article 75, paragraph 1, of the Anti-Mafia Code, of violation of the obligations inherent in special surveillance, charged to a person subjected to this prevention measure after the same measure had remained suspended for more than a year, due to the state of detention of the person concerned for the execution of a sentence.
The judge a quo doubts the compatibility with the Constitution of the challenged provision, insofar as it, a contrario sensu, excludes the obligation to re-evaluate the dangerousness of the person concerned, by the court that adopted the prevention measure, in the event that the effectiveness of the provision has been suspended during the time in which the person concerned was subjected to detention for the execution of a sentence for a period of less than two years.
If this Court considered these questions to be well-founded, the defendant should be acquitted of the contravention charged to him, since – no re-evaluation of his persistent social dangerousness having been carried out at the time of the cessation of the state of detention – the special surveillance measure previously adopted against him could not be considered to be still enforceable; so that no violation of the related obligations could be charged to him.
Such a conclusion corresponds, as correctly noted by the referring court, to the principle of law formulated by the case law of legitimacy in relation to the parallel situation in which, in the event of suspension of the prevention measure for a period of more than two years as a result of the status detentionis of the person concerned, the prevention judge has not carried out any re-evaluation of his dangerousness. In this situation, the United Criminal Divisions have held that the prevention measure must be considered still suspended, with the consequent non-configurability of the crime referred to in Article 75, paragraph 1, of the Anti-Mafia Code (Cass., sez. un., no. 51407 of 2018).
These considerations ensure the relevance of the questions raised in the proceedings a quo.
2.2.– None of the arguments put forward by the State Attorney General's Office to challenge the relevance of the questions, on the other hand, hit the mark.
The possibility for the person concerned to solicit himself the verification of the persistence of his social dangerousness pursuant to Article 11, paragraph 2, of the Anti-Mafia Code (on whose relevance for the purposes of the merits will be returned to infra, point 3.5.4.) does not eliminate the defect complained of by the appellant, which consists in the failure to provide for an ex officio re-evaluation of this dangerousness. Since such a re-evaluation has not been carried out in the specific case – which is not disputed by the State Attorney General's Office itself –, the questions retain their relevance intact, since – as just specified – it is precisely from this lack of re-evaluation that there would result, in the event that the questions are well-founded, the lack of enforceability of the measure and related obligations, the violation of which is challenged in the context of the criminal proceedings a quo.
Nor is the argument that on the date of the violations charged the chamber hearing to verify the persistent dangerousness of the person concerned would presumably already have taken place, if it had been necessary, valid, as it is a deduction of a purely hypothetical nature (which does not even take into account the possibility of a negative outcome of the assessment), in the face of the only certain fact represented by the non-performance of this verification.
3.– On the merits, the questions are well-founded, with reference to all the parameters invoked.
3.1.– In the related matter of security measures, as more extensively recalled by judgment no. 291 of 2013 (point 5 of the Considered in law), a long-standing case law of this Court has judged incompatible with the canon of reasonableness based on Article 3 of the Constitution various absolute presumptions of social dangerousness at the basis of automatisms in the application of such measures (judgments no. 249 of 1983, no. 139 of 1982 and no. 1 of 1971).
In accordance with the principles underlying this case law, Law no. 663 of 10 October 1986 (Amendments to the law on the prison system and on the enforcement of measures depriving and limiting liberty), the so-called "Gozzini law”, repealed Article 204 of the Criminal Code, which provided for a general provision on the presumption ex lege of social dangerousness for the purposes of the application of security measures, and at the same time introduced the principle according to which "[a]ll personal security measures are ordered after ascertaining that the person who committed the act is a socially dangerous person” (Article 31, second paragraph, of Law no. 663 of 1986).
However, the question remained open as to whether this assessment should be carried out only at the time of the application of the security measure by the judge of the cognitive proceedings, or (also) at the time of the execution of the measure itself, in the event of deferred execution (for example, when the security measure was to be executed after the serving of the sentence). The question was resolved by judgment no. 1102 of 1988 of this Court, which declared unconstitutional Article 219, third paragraph, of the Criminal Code, "in the part in which, for the cases provided for therein, it subordinates the provision of admission to a nursing home and custody to the prior ascertainment of social dangerousness, deriving from semi-insanity, only at the time when the security measure is ordered and not also at the time of its execution". And this, precisely, on the basis of the ritenuta insostenibilità, to the metre of Article 3 of the Constitution, of the presumption of persistence of the dangerousness already ascertained at the time of the application of the measure.
The path was completed with the new Code of Criminal Procedure, which in Article 679 – now cited as a tertium comparationis by the referring court – provides that "[w]hen a security measure other than confiscation has been […] ordered by judgment, or must be ordered subsequently, the surveillance judge, at the request of the public prosecutor or ex officio, ascertains whether the person concerned is a socially dangerous person".
Consequently – as this Court has also emphasised in judgment no. 291 of 2013 – "except for cases in which the security measure is applied directly by the surveillance judge – the assessment of social dangerousness must be carried out twice: first by the judge of the cognitive proceedings, in order to verify its existence at the time of the pronouncement of the judgment; then by the surveillance judge, when the measure already ordered must concretely begin, in such a way as to guarantee the current nature of the dangerousness of the subject affected by the restrictions on personal liberty connected to the measure itself".
3.2.– The same principles have been applied by this Court to the matter of prevention measures, which are similar to security measures in that they have the purpose of "preventing the commission of crimes by socially dangerous subjects and [of] promoting their recovery to orderly civil living (judgment no. 69 of 1975, order no. 124 of 2004), to the point of being able to be considered as "two species of a single genus" (judgments no. 419 of 1994 and no. 177 of 1980)" (judgment no. 291 of 2013, point 6 of the Considered in law).
In this ruling, this Court has noted the then existing living law (crystallised in particular by the Court of Cassation, United Criminal Divisions, judgment 25 March-14 July 1993, no. 6), according to which the prevention judge was required to ascertain social dangerousness only at the time of the adoption of the measure; while, in the event that the execution of the measure had to be suspended as a result of the state of detention of the person concerned, a new ascertainment of dangerousness would not be essential at the cessation of the detention, also in order to avoid the risk, feared by the United Divisions, of "dangerous delays" in the execution of the measure, once the person concerned regained his liberty.
This living law has been deemed by this Court to be incompatible with the principle of reasonableness referred to in Article 3 of the Constitution.
Consequently, Article 15 of the Anti-Mafia Code was declared unconstitutional "in the part in which it does not provide that, in the event that the execution of a personal prevention measure remains suspended due to the state of detention for the serving of a sentence of the person subjected to it, the body that adopted the enforcement provision must evaluate, also ex officio, the persistence of the social dangerousness of the person concerned at the time of the execution of the measure".
In motivating this decision, judgment no. 291 of 2013 observed that "the passage of a long period of time increases the possibility that changes will occur in the subject's attitude towards the values of civil coexistence: but even more so this is true when we are discussing a person who, during this period of time, is subjected to a treatment specifically aimed at his resocialisation. If it is true, in fact, that the positive outcome of this treatment cannot be taken for granted a priori, however long it may be, even less can a presumption – albeit only iuris tantum – of persistence of dangerousness despite the treatment, which is equivalent to the denial of its very function, be justified on the opposite front: a presumption which is, conversely, substantially inherent in a system which attributes to the verification of dangerousness carried out in the application phase an effectiveness sine die, unless a successful challenge on the part of the person concerned intervenes. This, although social dangerousness must be current at the time when the measure is executed, since, otherwise, the limitations on personal liberty in which the measure itself consists would remain without any justification" (point 6 of the Considered in law).
In this way, also with respect to prevention measures, this Court has imposed a double verification of dangerousness: at the time of the adoption of the provision, and at the time of its actual execution, in the specific case in which a time lapse has occurred between them as a result of a suspension due to the detention for the serving of a sentence of the person concerned.
3.3.– Moreover, the ruling just mentioned specified, in the concluding part of the reasoning, that it would have been "left to judicial application the identification of the cases in which the reiteration of the verification of social dangerousness may be reasonably omitted, in the face of the brevity of the period of postponement of the enforcement of the prevention measure (think of the limit case in which the person to whom the measure has been applied finds himself having to serve only a few days of imprisonment)" (point 7 of the Considered in law).
In the declared intention to contribute to the "certainty of the law", in the face of the difficulties that have emerged in the application practice regarding the more precise identification of the period of suspension that imposes a reiteration of the assessment of dangerousness, the final report of the Ministerial Commission in charge of developing a proposal for interventions in the field of organised crime, established by decree of the Minister of Justice of 10 June 2013, proposed to fix by law the duration of this period, establishing the need for ex officio verification of persistent social dangerousness only if the detention had lasted for at least two years.
This proposal was incorporated into Law no. 161 of 17 October 2017 (Amendments to the Code of Anti-Mafia Laws and Prevention Measures, referred to in Legislative Decree no. 159 of 6 September 2011, to the Criminal Code and to the implementing, coordinating and transitional provisions of the Code of Criminal Procedure and other provisions. Delegation to the Government for the protection of work in sequestrated and confiscated companies), whose Article 4, paragraph 1, has led to the introduction in the Anti-Mafia Code of paragraph 2-ter of Article 14, challenged here.
3.4.– The provision in question reintroduces, in fact, a presumption of persistent dangerousness where the suspension connected to the state of detention of the person concerned is less than two years.
Such a solution does not appear to this Court to be in line with the ratio of judgment no. 291 of 2013, and with the case law that has been recalled above on the matter of security measures.
3.5.– The presumption in question violates, first of all, Article 3 of the Constitution, being intrinsically unreasonable on the one hand (infra, point 3.5.1.), and on the other hand a source of an unreasonable disparity of treatment compared to the parallel discipline currently applicable to security measures by virtue of Article 679, paragraph 1, of the Code of Criminal Procedure (infra, point 3.5.2.); while none of the arguments put forward to the contrary by the State Attorney General's Office hit the mark (infra, points 3.5.3. and 3.5.4.).
3.5.1.– From the first point of view, there is not, in general, any reason to believe that within an entire two-year period the personality of an individual, and in particular his attitude towards the fundamental values of civil coexistence, cannot undergo significant changes, when it comes to an individual detained for the serving of a sentence, and therefore subjected to a treatment that by constitutional obligation is aimed at his re-education.
And the intrinsic unreasonableness of the legislative solution under consideration becomes even more evident when the cessation of detention is due to the granting of alternative measures, which presuppose a positive assessment regarding the prison conduct of the convicted person who accesses them.
3.5.2.– On the other hand, there is no