L¿ESECUZIONE DELLA PENA E L¿ORDINAMENTO PENITENZIARIO PER IMINORENNI: L¿EVOLUZIONE E LE NUOVE PROSPETTIVE ALLA LUCEDEL D.LGS. 2 OTTOBRE 2018, N. 121

This paper analyses the regulation of the execution of the sentence, and particularly the prison system, in respect of juvenile offenders (rectius: those who had not reached the age of majority, at the time of the commission of the offence), in the light of the enactment of Legislative Decree No 121 of 2 October 2018. The latter implemented Article 1(81), (83) and (85)(p) of Delegated Law No. 103 of 23 June 2017, constituting a turning point in the Italian legal system, as an ad hoc discipline of juvenile prison law was introduced for the first time, filling an internal gap in the system, already felt since Law No. 354 of 26 July 1975. In fact, while awaiting the great reform of prison law in 1975, a transitional provision had been envisaged, which allowed the application of the general discipline, even to those who had committed the offence as minors, with the assurance, however, that this use would cease as soon as possible with the enactment of legislation dedicated to them (Article 79 of Law 354/1975). Despite the solicitations of European and supranational sources, the complaints of merit of juvenile judges and the vain attempts represented by numerous draft laws, for more than forty years, our legal system has suffered from the lack of a separate discipline, making it necessary for the Constitutional Court to make substantial adjustments to the rules that prevented a constitutionally oriented interpretation of the principle of favor minoris. These pronouncements, however, became more numerous from the 1990s onwards, in the face of the boost provided by the far-sighted Presidential Decree of 22 September 1988, no. 448 of 22 September 1988, which, by forging the system of a criminal trial aimed exclusively at under-eighteen-year-olds, endorsed some of the cardinal principles of juvenile matters, of which this thesis intends to give an enucleation: in particular, the specialisation of judges and other professionals who have contact with young defendants, the individualisation of each procedure and the need for differentiated judicial outcomes. The same guarantees, a fortiori, also deserved to be applied to the trial segment following sentencing, specifically oriented towards the recovery and resocialisation of the young offender. The first part of the research work is, therefore, aimed at analysing, the wise work of differentiation between the penitentiary system of adults and that of juveniles, conducted by the Constitutional Judge, starting from the well-known judgment of 25 March 1992, no. 125, which discussed the legitimacy of art. 79, Ord. Penit, in the part in which it did not differentiate the applicability of alternative measures to detention (and other penitentiary benefits) to young prisoners, compared to the more rigid provisions provided for adult offenders. The Constitutional Court, while ruling that the question was inadmissible, took the opportunity to denounce the parity of the two systems, stressing that ‘the application also to juveniles of the limits of inflicted and [...] served sentences, provided for probation and semi-release’ compromised ‘the need for specific individualisation and flexibility of treatment’ that the young person's personality, still in the making, would have required. The incisiveness of the 1992 ‘warning judgement’ was not enough to spur the Italian legislature on this point, further corrective measures by the Judge of Laws being necessary. From the joint reading of some of these judgments it is possible to deduce the common thread that slowly led the delegating legislator to include within the so-called Orlando Reform also the directives to be transposed, in the drafting of a new juvenile prison system. The merit of the sentences that the research intends to highlight, concerns the interpretation given to certain fundamental principles of the Constitutional Charter, contained in the provisions of Articles 3, 27 paragraph 3 and 31 paragraph 2. Thus, starting from the assumption that serving an intramoenia sentence makes it, in practice, more complex to prepare the minor, effectively, for future experience in society, the constitutional judges have oriented their decisions in two directions. On the one hand, in fact, it was recognised that the stay in juvenile penal institutions should always be the extreme ratio, definitively opening the doors to any alternative measure to detention. In this wake, the judges of the Constitutional Court severely censured any form of automatism that prevented, in practice, those who were minors at the time of the crime, from benefiting from measures less segregating than prison. The motivations underlying these decisions find their common denominator in the interpretation of Article 3 of the Constitution, in the light of the principle of the protection of childhood and youth: the principle of substantive equality, in fact, requires differential treatment in the face of conditions - such as minor and adult age - that are profoundly different. To this is added the need, in the light of the principle of favor minoris, ‘to adapt the treatment of the convicted person in relation to individualised assessments and prognoses anchored to the concreteness of the case’. With regard, then, to the second guideline followed, in the work of correction of the prison system, the Court specified that, in the residual hypotheses in which the stay in prison cannot be avoided, the intramuritary execution should present diversified and flexible characteristics, in order to allow an individualised prison experience, suitable for the maturation and re-socialisation of each young prisoner. To make this principle explicit, once again, it was necessary to reinterpret the rule of Article 27, paragraph 3 of the Constitution, enhancing the protection and social rehabilitation of the juvenile, with respect to the punitive needs of the State. The next part of the work investigates, therefore, the extent to which the delegated legislator followed the directives enucleated in the eight points, contained within art. 1, paragraph 85 letter p) of the delegated law of 23 June 2017 no. 103, which, in turn, borrowed the warnings of the Consulta and the solicitations of the supranational and European legislators. The main aspects that should have committed the delegate concerned, first of all, the extension of the entire juvenile discipline also to the so-called young-adults, with a view to not abruptly halting the re-educational path undertaken; the provision of alternative measures to detention, really different from those aimed at adults and more easily accessible the elimination of any automatism or preclusion with respect to prison benefits, linked to absolute presumptions (linked to the title of offence); the strengthening of activities aimed at education or vocational training, as well as the increase of contacts with the outside world. With a view to assessing the success of the reform and, on the other hand, the aspects that have disappointed the expectations of the delegator, the paper focuses, firstly, on the regulation of external criminal execution and, secondly, on the regulation of intramoenia execution. The choice is not causal, as it recalls the topographical placement of the regulations of Legislative Decree no. 121/2018, the result, in turn, of a happy decision of the delegated legislator to give prevalence, first, to the ‘new’ community-based criminal measures, relegating, as a last resort, the discipline of intramoenia detention. Nonetheless, the approach to the reform is mainly critical since, in fact, the resulting decree appears to be mostly a slavish re-proposal of the ordinary prison regulations, presenting only a few differences, more quantitative - with reference to the application prerequisites - than qualitative. The thesis, therefore, proposes to compare the matter of external criminal enforcement, as reformed in 2018, with the ‘traditional’ alternative measures to detention, regulated in Chapter IV of Title I of Law no. 354/1975. A further element of comparison is provided, moreover, by the solicitations coming from the States General of Penal Enforcement, which dedicated an ad hoc table to the juvenile matter. Even the first Draft of the decree, presented by the Cascini Commission, had appeared far more ambitious in freeing the juvenile prison system, from that aimed at adults, than the work that resulted in 2018. In studying the new provisions of the decree, which have been the subject of criticism by the first commentators, it is necessary to look at the reform through the lens of the legislator of the 1988 Code of Juvenile Criminal Procedure, which, on the contrary, had introduced innovative forms of diversion, which kept in mind the psychophysical condition of a young defendant. It is believed that certain provisions contained in that far-sighted piece of legislation can still be borrowed today when rethinking some of the institutions of prison discipline. This is also true in the third part of the paper, which, as anticipated, aims to investigate the intramoenia discipline in the various Juvenile Penal Institutions located on the Italian territory, in the light of the new ‘educational’ project. Without prejudice to the fact that recourse to intramurary detention remains an obligatory choice in extremely residual hypotheses, there are two aspects on which the research work intends to focus. In the first place, it is considered essential - even though the final decree has been described in only one rule - to take the utmost care in maintaining relations with the juvenile's family and, more broadly, to protect affectivity and contacts with the outside world (whether represented by relatives or other persons close to the detainee, as well as by volunteers of the institution itself): the aim is to redesign the execution of the juvenile sentence with a view to a progressive rapprochement to society. Secondly, it is necessary to investigate the core of activities that can be selected - both by the specialised judiciary and by the social services - and included in the treatment programme. It is believed that this last aspect represents what can distinguish the juvenile offender's enforcement process, marked by his gradual maturation, from that of the adult, mostly aimed, instead, at the containment of dangerousness. In this regard, also thanks to the opportunity of participating in a project held at the ‘Cesare Beccaria’ Juvenile Penal Institute in Milan, the re-educational power of theatrical activity within prisons is assessed, under multiple aspects: the cathartic and emotional one, the educational and cultural one and, lastly, the one concerning re-socialisation and relations with others. The work closes with an analysis of the Flemish juvenile criminal law, which was carried out during a research period at the KU Leuven University. The comparison with that legislation, which in some aspects is profoundly different from ours, allows us to explore margins of improvement for the domestic discipline, with particular regard to the concrete translation of the extreme ratio of detention and, on the other hand, allows us to emphasise which Italian practices can be proudly taken as an example also abroad.