With sentence no. 22509 of 18 January 2024-4 June 2024, the first criminal section of the Court of Cassation stated that the legitimacy jurisprudence, called to limit the scope of the verification delegated to the supervisory judiciary in view of the admission of justice collaborators to the benefits , has consistently held that the institution governed by art. 16-nonies, DL 15 January 1991, n. 8, converted into Law 15 March 1991, n. 64 is not applicable in an indiscriminately generalized way, since the positive outcome of the relevant request presupposes the expression of a favorable judgment regarding the repentance of the person who is open to collaboration with the judicial authority, based on the overall conduct of the justice collaborator and on the belief that the re-educational action carried out has resulted in complete repentance, following a critical review of one’s previous life (Penal Cassation, section I, 1 February 2007, no. 9887; see, in substantially compliant, also Cass., section I, 16 October 2012, n.
Moreover, it was further noted that the requirement of “repentance”, provided for by the art. 16-nonies, paragraph 3, cannot be the subject of a sort of presumption, which can be formulated solely on the basis of the collaboration and the absence of persistent links of the convicted person with organized crime, but requires the presence of distinct, specific elements, of of any nature, which are capable of positively demonstrating, albeit in terms of mere, reasonable probability, its actual existence (Penal Cassation, section I, 22 May 2018, no. 43256; Criminal Cassation, section I , 30 October 2013, n. 1115; In this evaluation context, among the elements that can be used for the purposes of formulating a favorable prognostic judgment for the justice collaborator, “relationships with family members, with judicial personnel, as well as the carrying out of work or study to verify whether there has been a critical review of his previous life on the part of the criminal and a real inspiration for his moral redemption” (Penal Cassation, section I, 1 February 2007, n. 9887, cit.) . It follows that, for the purposes of ascertaining the presupposition of repentance, consideration must be given not only to the results of the penitentiary treatment, but also to the overall conduct of the subject, so that both these indices can establish, on the basis of objective reference parameters, an safe prognostic judgment regarding the elimination of the social danger of the same and the actual capacity of his orderly reintegration into the social fabric (among others, Criminal Cassation, section I, 17 July 2012, n. 34946; Criminal Cassation, section I, 4 February 2009, n. 18022).
The hermeneutical direction which, in the matter of granting conditional release requested by a collaborator of justice, attests to the need for a broad scrutiny, which, even within a framework not marked by canons of opposition, takes into account account of all the relevant elements in view of the formulation of a prognostic judgment of repentance on the basis of a completed treatment path of re-education and recovery suitable to support the prediction, in terms of certainty, of a conformity to the legal and social framework violated at the time (Cass. Penal., sec. I, 14 January 2020, n. 3312; Cass. Penal., sec. I, 19 February 2009, n. 10421), and that, pertaining to the general coordinates of the institute provided for by the art. . 176 of the penal code, according to which «In terms of conditional release, the prerequisite of “certain repentance” does not simply consist in the ordinary good conduct of the convicted person, necessary to benefit from the benefits provided by the penitentiary system, but implies positive behaviors from which the abandonment of criminal choices, and among which the effective will of the offender to eliminate or mitigate the harmful consequences of the crime takes on particular significance” (Penal Cassation, section I, 25 September 2015, n. 486). In this last regard, it is necessary, however, to point out that the jurisprudence of legitimacy has recently had the opportunity to specify that «For the purposes of granting conditional release requested by a collaborator of justice, pursuant to art. art. 16-nonies, legislative decree 15 January 1991, n. 8 the judge, in evaluating the certain repentance of the applicant, must take into account symptomatic indicators of “certain repentance”, such as the length of the time span in which the collaborative relationship occurred, the relationships with family members and staff judicial, the carrying out of work, study or social activities subsequent to the collaboration, since the mere absence of compensation initiatives towards the victims of the crimes committed cannot be of decisive importance” (Cass. Penal., section I, 20 April 2021, no. 17831). In this way, it is ascertained that «the failure to fulfill the civil obligations deriving from the crime, although it does not constitute an obstacle to the acceptance of the request, given the derogation from the ordinary provisions contained in the art. 16-novies of the law of 15 January 1991, n. 8, notes, together with other evaluation indices, such as relationships with family members, judicial staff and other qualified subjects as well as the profitable performance of work or study activities, for the purposes of judging whether the convicted person has repented» (Penal Cassation, section I, 22 June 2020, n. 19854).
