Substituted pecuniary penalties to the Joint Sections

The request for a fine sentence in lieu of a short prison sentence of up to one year goes to the Joint Sections. The Supreme Court of Cassation, in its interlocutory order 14740 filed on Thursday 23 April, entrusts to the Supreme Court the question, considered of particular importance, on the possibility granted to the judge to reject the request for the application of the pecuniary penalty when, on the basis of factual elements, he formulates a negative prognosis on the defendant's ability to fulfil.

The Sixth Criminal Section takes note of the contrast in the jurisprudence of legitimacy between the pronouncements that consider the prognosis of non-fulfilment and the decisions according to which the assessment only affects substitute punishments accompanied by prescriptions: from semi-freedom to work in public utility.

On what the doctrine has called 'class penalties' the Constitutional Court has intervened several times. Starting with the historic sentence 131/1979 with which it declared unconstitutional Article 136 of the Criminal Code, which automatically provided for the conversion of pecuniary penalties into custodial sentences in the case of insolvency. A wake on which the Cartabia reform moved, in tightening the elements for affirming a negative judgement on the ability to fulfil, such as in calibrating the pecuniary penalty on economic capacity, with a minimum ceiling of 75 euro per day.

But, as of today, Article 58 of Law 689/1981, which provides for the substitution of the pecuniary penalty, leaves unchanged the discretion of the judge in deciding the conversion, which is to be denied in the event of well-founded doubts of non-compliance. The Referring Court then asks to intervene, recalling the principle of equality and the ratio of the Cartabia reform to extend to the maximum alternative measures to prison, in order to reduce recidivism and encourage social reintegration.