Article published by Osservatorio Repressione on 17/11/2022 and accessible here. Unofficial translation from Italian.
Article 434 bis, which attacks rave parties, provides for a path of social reintegration also for those sentenced to life imprisonment without possibility of parole
Inserted in haste into the first decree-law of the Meloni government, the new Article 434bis of the penal code aims to put an end to the phenomenon of rave parties, raising the spectre of criminal sanction. With a clear stance, the populist right shows its fists immediately by introducing an offence with a maximum sentence limit of more than five years, to exclude access to probation and other potential ‘ways out’ of punishment for minor offences.
The outcome, however, is far from certain. If definitively approved, the crime will in all likelihood be disapplied en masse by the jurisprudence, due to the obvious profiles of unconstitutionality and dubious applicability that the text presents. This is what happened, after all, to the then much-vaunted self-defence reform wanted by the League back in 2006. In that case, the intervention inserted a presumption of proportionality (and, therefore, lawfulness) of defence if the attack took place within one’s own home.
To consider the conduct of a man who shoots and kills an unarmed 18-year-old as legitimate defence simply because the attack occurred inside a home was simply too much. In fact, the literal meaning (and the obvious intent of the reformer) has been eroded in the interpretation and (dis)application of the ‘new home self-defence’, which sixteen years later appears to be nothing more than a useless and nebulous specification of the ‘old’ self-defence, and badly written too.
Whether this is the next end of the new 434bis, in any case, only time can tell (assuming the decree-law is converted without amendment by Parliament). The offence can be qualified as a danger offence, a category of offences that aims to anticipate criminal protection at a stage when the protected legal asset has not yet been harmed but only ‘threatened’: among these, we find offences against the personality of the State, but also Article 445 of the Criminal Code, which penalises the conduct of a pharmacist who delivers a drug to a customer that differs in quality or quantity from that prescribed by the doctor. It does not matter if the patient does not feel ill, and perhaps even agreed to it: a pharmacist has a legal obligation to supply what was prescribed and can be criminally liable if he fails to do so.
Because of the only possible link with the actual injury to a legal good, crimes of danger are not well regarded by the Constitutional Court, which admits them on condition that the protected good is of fundamental importance, such as life or human health, and the conduct is specified in such a way as to allow, at least abstractly, anyone to understand whether or not their conduct is permissible.
In this case, we are faced with an offence of only presumed danger, in which the conduct is dangerous because it is dangerous, without any useful descriptive specification and, curiously enough, without even any explicit reference to the use of drugs or weapons at gatherings.
Rave parties however, are only an incidental objective of the Meloni decree-law. The real urgency is to neutralise the now imminent declaration of unconstitutionality of the life sentence without possibility of parole.
In fact, the Constitutional Court will soon be called upon again to pronounce on the legitimacy of life imprisonment without parole, the set of rules of the prison system that provides a parallel track for those convicted of serious crimes of association, excluding this type of prisoner from premium permits and measures that allow their gradual re-entry into society such as early release or semi-release.
For those sentenced under the ‘end-of-penalty-never’ regime (this is also how life imprisonment without parole is defined), any possibility of assessing, also in the light of the prison course and time spent, a future social reintegration of the prisoner is excluded a priori. For this reason, also at the urging of the Strasbourg Court, last year the Constitutional Court ‘announced’ that it would eliminate hostile life imprisonment because it is incompatible with the re-educative function of punishment, unless action was taken to mitigate its scope to date.
The modifications of the new decree-law on hostile life imprisonment, which take up a bill stalled in the Senate, will perhaps avoid its declaration of unconstitutionality. At the hearing on 8 November, in fact, the Court returned the acts to the Court of Cassation to further assess the effects of the new legislation.
The corrections made allow access to the benefits under certain conditions, although this possibility is severely undermined by the rigidity of the criteria introduced. Firstly, the detainee is required to specify the reasons why there would no longer be any link with the mafia gang, without, however, the significant passage of time, regular behaviour in prison or declarations of dissociation from the criminal organisation being sufficient reasons in themselves (so what could the detainee indicate?).
Another problematic element is the macroscopic – with suspicion of unreasonableness – disparity of treatment between the so-called ‘cooperating’ and ‘non-cooperating’ prisoners, who will only be eligible for conditional release after having served thirty years of sentence – three times the ten years provided instead for the ‘cooperating’ prisoner.
With a stroke of the pen, the declaration of unconstitutionality of the ‘end of the sentence never’ will perhaps be avoided. Let’s throw away the key, quickly, so that life imprisonment without parole is saved, almost by a miracle.
And, indeed, at least one miracle the populist right has performed. Through decades of propaganda, it has managed to convince a large audience of wretches that the social danger is not corruption in public office or tax evasion by individuals who own hundreds of properties.
The real crime is the attempted theft of a pair of Bluetooth headphones, the occupation of council houses (an offence that has become prosecutable ex officio thanks to Matteo Salvini’s security decree), rave parties.
And, in a context of energy and environmental crisis that can no longer be postponed, here we are helplessly observing yet another chapter of a class criminal law that still persists in confusing dangerousness with socio-cultural or economic marginality. The awakening, perhaps, will come too late.