Criminal justice

The Csm 'dismantles' the structure and measures of the security decree

In the draft opinion to the plenum all the critical aspects of the measure

by Giovanni Negri

14 May 2025

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Key points

Fraud, minors and squatting
Jails and roadblocks

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With caution and institutional respect, but without concealing doubts and perplexities. Both general and specific. The plenum of the Csm scheduled for today, 14 May, will vote on the opinion on the security decree still under discussion in Parliament (yesterday many amendments were judged inadmissible, including those of Forza Italia on the limits to pre-trial detention for unconvicted persons). Thus, on the one hand, the text approved in committee recalls that if it is the legislator's prerogative to identify the unlawful conduct affected by criminal sanctions, it is the Constitutional Court that emphasises how discretion cannot be equated with arbitrariness; on the other hand, it should be noted that 'argued doubts' have been expressed by the academy and the legal profession on the incriminatory choices and the increasing sanctions that characterise the entire decree.

As for the impact on the judicial offices, they can only be affected, given that 'improved organisational effectiveness' is, if anything, a consequence of depenalisation interventions, which, moreover, in this legislature have only affected the sector of offences against public administration with the repeal of abuse of office.

Scams, minors and squatting

In detail, the provision of the mandatory arrest in flagrante delicto for fraud aggravated by diminished defence risks remaining ineffective given the manner in which the crime is committed, which is hardly compatible with the requirement of flagrante delicto (it would have been better to focus then on deferred flagrante delicto).

The raising of the age limit, from 14 to 16, for the use of minors in begging then appears to the draft opinion to be inconsistent with previous interventions, such as the Caivan decreeo, which instead emphasised responsibility profiles of legally underage, but increasingly precocious psycho-physical and relational subjects.

The measures to combat the unlawful occupation of real estate reveal critical issues both in terms of the vagueness of the notion of violence and the identification of those punished outside the hypotheses of concurrence, but also obscure is the procedure to be followed for the reinstatement of possession.

Jails and roadblocks

The criminal response envisaged for forms ofpassive resistance inside prisons then emerges as very problematic: in fact, 'this would be an almost absolute novelty for our legal system, until now solidly anchored to the principle of the criminal irrelevance of conducts of mere inaction with respect to the order given by the authority'. Moreover, the equating of passive resistance conduct with conduct characterised by violence and threats could lend itself to findings of unreasonableness.

Also striking are the demonstrations of dissent (for this past subject to both decriminalisation and amnesty and pardon) and the tightening of penalties for road blocking conduct.

Much has been made and is being debated about the decision to remove the absolute presumption of a ban on pregnant women or mothers of children under one year; the opinion on this point points out how, in fact, the effects in terms of afflictiveness could be excessively afflictive, taking into account that there are only four institutions with mitigated custody for mothers and the distance between the institution of destination and the family context of origin of the pregnant prisoner or mother leads to a significant aggravation of the sentence.