New Code Red, approach ban always with bracelet

After the amendments introduced by the new Red Code, the judge is obliged to order the precautionary measure of the prohibition to approach places frequented by the offended person, together with the electronic bracelet. The Cassazione (judgment 42892) excludes that article 283-ter revised by law 168/2023 paragraphs 1 and 2 ter of the Code of Criminal Procedure, the so-called Roccella reform, leaves the judge some margin of discretion in applying only the precautionary measure of the distance - not less than 500 metres after the restyling of the Code in 2019 - without the electronic device. A reading of the new rules consistent - underlines the Supreme Court - with the spirit of the legislator aimed at strengthening the fight against domestic and gender-based violence.

For the judges of legitimacy, therefore, the order is null and void, in which the Court of Review, partially accepting the appeal of the defence of a man under investigation for theft, injuries, private violence and stalking against his ex-girlfriend, had replaced the house arrest with the prohibition to approach the places frequented by the woman - who had also failed to indicate as she should have done - without combining the electronic monitoring. According to the Court of Cassation, the order is null and void, with regard to the two points indicated, and must be redone. With the occasion, the judges of legitimacy, in addition to clarifying that the new Code Red, has reduced the margin of manoeuvre of the judge, recall that the new rules to combat gender violence or domestic violence, also contemplate the hypothesis in which the defendant does not give his consent to the electronic bracelet, "or the delegated body ascertains the technical infeasibility, providing that in such cases the judge imposes the application even jointly of more serious precautionary measures. But the Constitutional Court intervened on the impossibility of technical control, which generally depends on the lack of availability of electronic devices, in its ruling 173 of 4 November.

The Consulta saved the structure of the new Code Red with regard to the distance of 500 metres from the offended person, but 'rejected' the automatism by virtue of which in the event of technical difficulties in applying the bracelet the judge imposes more severe measures.

In fact, the law judge stated that in the event of the technical impossibility of electronic monitoring, an event objectively not attributable to the suspect, the rule must be interpreted in a constitutionally adequate sense. The judge, in such a case, specified the Supreme Court, "is not obliged to impose a more serious measure than the prohibition to approach, but must re-evaluate the precautionary needs of the concrete case, being able, at the outcome of the re-evaluation, on the basis of the ordinary criteria of suitability, necessity and proportionality, to choose not only a more serious measure (such as the prohibition or the obligation to stay), but also a milder measure (such as the obligation to present oneself to the Judicial Police Force). An indication of which the Court of Cassation, in its judgment filed on 25 November, does not take into account.