Constitutional Court

Gender crimes, yes to wristband and 500 metre approach limit

But the technical impossibility of remote control cannot automatically lead to the application of a more restrictive precautionary measure

by Patrizia Maciocchi

4 November 2024

Aggiungi Il Sole 24 Ore
ai preferiti su Google

Brucia la macchina al rivale in amore: denunciato per stalking e danneggiamento

3' min read

3' min read

The approach prohibition of 500 metres from the places frequented by the offended person, imposed on the suspect required to wear the electronic bracelet, is not too strict a measure. However, the latter cannot be penalised, if it is technically impossible to control him remotely, by automatically imposing on him a more restrictive precautionary measure. With Judgement No. 173 the Constitutional Court declared as unfounded, the questions of constitutional legitimacy raised by the Gip of the Court of Modena, with respect to Articles 3 and 13 of the Charter, with regard to Article 282-ter, paragraphs 1 and 2, of the Code of Criminal Procedure, as amended by the so-called new Red Code (Law No. 168 of 2023)

The different values at stake

An intervention of the legislator ended up in the crosshairs of the referring judge. In particular, according to the referring judge, the precautionary measure of the prohibition to approach the places frequented by the offended person - by prescribing a minimum distance of 500 metres and the mandatory application of the electronic bracelet - would have made the measure itself too rigid, in contrast with the principle of individualisation and with the reservation of jurisdiction in matters of restriction of personal liberty.

In addition, the amendment stipulated that if the enforcement body ascertains the 'technical unfeasibility' of remote control, the judge must impose the application, even jointly, of further, even more serious precautionary measures.

Burns love rival's car: reported for stalking and damage

For the Constitutional Court, the considerations to be made thus concern the balancing of the values at stake: on the one hand, the freedom of movement of the person under investigation, and on the other, the physical and psychological safety of the person under threat

Small towns

For the judge of laws, the electronic bracelet is a device of little weight, applied to the suspect's ankle and therefore normally invisible to third parties. And it does not prevent the person subject to the prohibition from leaving his or her home and fulfilling all his or her life needs, provided that this does not exceed the limit of 500 metres 'from the specifically prohibited places or from the place where the victim of the offence in relation to which the prohibition was ordered is located'.

A distance which, for the Court, is not in itself exorbitant, 'and corresponds to the practical function of proximity tracking, which is to give a sufficient space of time for the potential victim of more serious crimes to find safe shelter and for the police to come to the rescue'.

Donne più istruite, ma meno occupate: in Italia il gender gap pesa ancora

The Constitutional Court admits that in small towns 500 metres may be a more stringent distance, but it is not enough to revise the rule. Because 'where this is the case,' reads the ruling, 'the suspect is faced with an aggravation that can be considered bearable, that of going to the nearest centre to find the services he needs, without the risk of encroaching on the buffer zone'.

In the case of work reasons or housing needs, the Constitutional Court recalls that the rule already allows the judge himself to establish particular modalities for the execution of the prohibition to approach, thus restoring margins of flexibility to the application of the measure.

The impossibility of technical control

A relatively sustainable sacrifice for the suspect is thus contrasted by the pressing need to safeguard the safety of the offended person, whose very life is put at risk by the imponderable and not uncommon progression from the crime of stalking to the crime of blood.

A balancing act that, besides not being unreasonable, is in line with the priority criterion set out in the Istanbul Convention, ratified and made enforceable in Italy by Law No. 77 of 27 June 2013.

On the other hand, the conclusion reached with regard to the hypothesis of a technical impossibility of electronic control, an eventuality objectively not attributable to the suspect, is different.

The Court emphasises how the rule censured can be interpreted in a constitutionally adequate sense, rejecting any automatism. The judge, in such a case, is not, in fact, required to impose a more serious measure than the prohibition to approach, but must re-evaluate the precautionary requirements 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 lighter measure such as the obligation to report to the judicial police.