The "hostile" re-education of the minor.
Last 6 December, with the sentence n.263 (supervisor Dott. Giuliano Amato), the Constitutional Court declared the provision of art. 2, third paragraph, of the 121 legislative decree of 2018, regulating the new juvenile penitentiary system.
The Court, in accepting the question of constitutional legitimacy, raised by the Juvenile Court of Reggio Calabria, about the applicability, against the convicts minors and young adults, of the mechanism provided by the art. 4 bis, paragraphs 1 and 1 bis op , i CD. hostile crimes, has strongly affirmed that juvenile detainees will still be able to access the penitentiary benefits (community penalties, award permits, external work, etc.) even if, after the conviction, they have not given their collaboration to justice.
This exclusionary mechanism, accessible only after collaboration, was considered by the Court in absolute contrast with those that are the principles of the delegated law n.103 of the 2017, of Penitentiary Order reform, as well as with the art. 27, third paragraph, and 31, second paragraph, of our Constitution, given that the legislative automatism is based solely on the presumption of dangerousness inherent in the offense, completely disregarding an assessment by the Supervisory Magistrate on the suitability or otherwise of the measure, evaluated the medical history of the subject.
The delegation law, it is recalled, required to widen the criteria for access to alternative measures to detention and to eliminate any barrier to the granting of benefits to minors and / or young adults, at the source of a reading of the sentence aimed at re-socializing the offender and to its redevelopment as a subject / citizen.
These purposes cannot and never can be put into the background when our interlocutor will be a minor subject, in the evolutionary phase.
In the judgment the Court then explained that “In any case, the overcoming of the exclusionary mechanism that prevents the granting of extra-wall measures does not result in general usability of the benefits, even for those convicted of the crimes listed in art. 4 bis op In fact, the supervisory court is responsible for assessing the suitability and merit of extramural measures on a case-by-case basis, according to the educational project built on the needs of the individual. Only through the necessary judicial review is it possible to take into account, for the purposes of applying the penitentiary benefits, the reasons for the lack of collaboration, the actual conduct and the processes carried out in the context of the rehabilitation process, as required by the art. 27, third paragraph, and 31 second paragraph, of the Constitution. "
With this decision, the first on the new text of the Juvenile Penitentiary System, the Court tries to remedy what, expected by all the Minor System Operators, has been found to be a completely unsuccessful text, poorly innovative and protected of interests of the juvenile offender or saturated with internal inconsistencies.
The Constitutional Court helps us, once again, to emphasize, again, that there are no conditions impeding the re-education of the child and his reintegration into society, the final and necessary end of Juvenile Justice.
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