La rilevanza della condotta riparatoria nel sistema penale italiano

The reduction of the negative effects generated by prison has become one of the fundamental objectives of criminal policy. In order to cut down on human and social costs of prison and to improve treatement, the Italian lawmaker, since the mid-seventies, based its action on a simple aim: the decrease of prison population. To achieve this goal, the lawmaker introduced, on the one hand, alternative measures to imprisonment (l. 26 luglio 1975, n. 354, later amended by the l. 10 ottobre 1986, n. 663) and, on the other hand, addressed the problem of short prison terms through the provision of alternative sanctions (l. 24 novembre 1981, n. 689). Futhermore, the legal framework of suspended sentence was implemented and gradually extended (first in 1981 and then in 2004, l. n. 145). Today, more than thirty years after the prison reform, that innovative paradigm has been betrayed over the years, if not entirely abandoned. Despite the growth of non-custodial sanctions, the choice in favor of imprisonment has never been formally denied. Indeed, the recent legislation was perhaps the most important cause of further growth of prison population. We refer to l. 5 dicembre 2005, n. 251 (ex-Cirielli), which amended the discipline of recidivism and restricted the access to alternative measures. Besides, the most recent measures of pardon – l. 31 luglio 2006, n. 241 and l. 26 novembre 2010, n. 199 (Provisions on home detention not exceeding one year), whose area of application was extended by l. 17 febbraio 2012 n. 9 (Urgent measures to contrast the prison crisis determined by overcrowding) – seem to grant just for a very short period of time the basic needs for a decent life and the protection of the rights of the offender (self-determination, physical integrity and mental health, family and social relationships, moral and cultural identity), which are a prerequisite for any rehabilitative purpose. Facing this alarming reality of the prison system, the research investigates the alternative sanctions which are based on a positive and restorative engagement of the offender. Given the structural and factual inadequacy of imprisonment to achieve not only resocialization, but even to preserve the respect of fundamental human rights, reparation could, firstly, have a minimum punitive content and, secondly, meet the needs of the victim and the community not only by restoring damages and eliminating harmful and dangerous consequences, but also by its symbolic function (recognition of the victim and public censure of the crime committed). In these terms the restorative conduct may, at the same time, pursue prevention and reparation. Through an active commitment the offender rebuilds the interests damaged by his behavior. Nowadays, the compensation for damages, the removal of harmful or dangerous consequences (also combined with specific prescriptions) and the community service are the main models of restorative sanctions. Among these possibilities, the restorative conduct could represent the starting point of a new penal model, whose compatibility with our system must be verified referring to the functions of punishment. If restorative conduct, under its punitive value, is considered as a type of sanction, the effects on the present sanction system would be stronger and more problematic. Rather than as an exception to the rule of law (which involves that a punishment should be the consequence of an offence), it would be possible to see the positive sanction as a model for 'new type of punitive response'. Where the criminal system is less effective, reparation, as a real positive sanctions, could be a constructive response to the harm caused by the offense. If we replace the classical deprivation of imprisonment and fines with a restorative commitment of the offender, a form of reaction based on a restorative conduct may be particularly effective. It would not be impunity for pragmatic reasons or to achieve some eccentric aims (eg. procedural deflation), or a factual decriminalization, but a response based on a remedial content that, in being positive with respect to the offence, receives its legitimacy in order to protect those same goods offended by the crime. Rather than impunity or an exception to the rule of law, which involves that an offence should be punished, the restorative conduct could in fact be regarded as a prerequisite for building a 'new type of punitive response'.