The Consulta opens up to the suspension of the execution of the sentence for those convicted of “sexual acts with a minor” and who have obtained the mitigating circumstance of “lesser severity”, so that they can present a request for alternative measures and wait outside prison for the evaluation of the supervisory judiciary.
The constitutional judges in fact agreed with the Court of Catanzaro which had raised questions of legitimacy in relation to articles 3 and 27 (third paragraph) of the Constitution.
The case concerned, in particular, a boy who was twenty years old at the time, definitively sentenced to one year, one month and ten days of imprisonment and for whom the public prosecutor requested the suspension of the execution order of the sentence.
In particular, a “not particularly revealing” age difference with the girl, then thirteen, was highlighted. Under the lens is a part of article 656 of the code of criminal procedure and an article of the penitentiary system: the first prevents the public prosecutor from ordering the suspension of the execution of the sentence for these convicts and the other precludes them from accessing alternative measures to detention before having served a year of observation in prison.
With a sentence filed today, the Constitutional Court deemed that the current regulation “is incompatible with the constitutional principles of equality and reasonableness (art. 3 of the Constitution) and with the re-educational purpose of the sentence”.
«The institution of suspension of the execution of the sentence – the judges underlined – is aimed at avoiding the limitation of personal freedom in the form of detention in prison in cases in which the convicted person could be recognized, from the beginning, the possibility of serving the sentence according to alternative measures to detention. It follows that the rule in the matter is that if the convicted person can immediately apply for access to penitentiary benefits, the sentence must be suspended, pending the evaluation of the supervisory judiciary”.
According to the Court, “the censored rules entailed a useless sacrifice of personal freedom, to the detriment of the condemned person’s resocialization process and without offering a corresponding benefit in terms of protection of the community”. The Council then highlights a “disparity in treatment” compared to those convicted of sexual violence and obtains the mitigating circumstance of less seriousness which, on the contrary, can have the suspension of the execution of the sentence in view of the request for access to penitentiary benefits and the evaluation of the supervisory court.