Mother-in-prisoners, new rules not retroactive because they aggravate the execution of the sentence
But if the home is not suitable, for the mother of an offspring of less than one year whose social dangerousness is established, there is restriction in an institution with mitigated custody
The rules that cancelled the for female prisoners who are mothers - of children under one year - the compulsory deferral of the execution of the sentence, even for hostile offences, making it optional, are not retroactive.
However, for the mother detainee - whose social dangerousness is established - even applying the old regime, the possibility of granting deferment in the form of house arrest is excluded if the dwelling is inadequate: the way forward is restriction in the institution with mitigated custody.
The affair
The Court of Cassation (judgment 39550) rejected the appeal of a woman, the mother of three children, one of whom was a premature baby. A condition that, in the appellant's opinion, allowed her to obtain a deferment of the execution of her sentence or home detention.
For the defence, in fact, the Security Decree (Decree-Law 48/2025, converted by Law 80/2025), which amended Articles 146 and 147 of the Criminal Code - passing a sweeping blow on the automatism that made deferment of punishment compulsory - was not applicable because the last irrevocable conviction was prior to the decree's entry into force. The Supreme Court agrees on non-retroactivity, but this does not serve to uphold the appeal.
The judges of legitimacy, in order to exclude the retroactive application, start from the reasoning of the Constitutional Court (sentence 32/2020) that analysed the amendments to Article 4-bis of the Prison Ordinance introduced by the "Spazzacorrotti" decree and the access to prison benefits. The judges, without prejudice to the prohibition of the retroactive application of penalties not provided for at the time of the offence, check the possibility of extending the same prohibition to the rules that, while leaving the penalties unchanged, modify the modalities of execution, making the sentence to be served "a aliud compared to that provided for at the time of the offence". And this is the case when a penalty was envisaged that could be executed "outside" prison, which - as a result of a regulatory amendment that occurred after the fact - becomes "a penalty that, while not formally changing its nomen iuris, must normally be executed 'inside' prison.
