A convicted person’s inability to work by reason of age or health does not bar the grant of the measure

By judgment no. 14003 of 28 November 2023 the First Criminal Division of the Court of Cassation clarified that “As regards probation in the care of the social services, a convicted person’s inability to work by reason of age or health does not bar the grant of the measure, where other elements exist which are capable of founding a favourable prognostic assessment of social reintegration”.

In particular, it was clarified that the grant of an alternative to detention requires positive elements which permit a favourable prognostic assessment of the probation (in particular as regards probation in the care of the social services) and of the prevention of the risk of reoffending. Those considerations must in any event be read in the light of the more general principle that the appropriateness of alternative treatment cannot be separated from the existence of a serious process of critical review of the criminal past and of resocialisation, as well as from the practical feasibility of the benefit itself. The Surveillance Court, when assessing the conditions for granting an alternative measure, starting from the type and seriousness of the offences committed, must above all have regard to the person’s conduct and situation after the facts for which the sentence being served was imposed, so as to verify in concrete terms whether there are signs of a positive development of personality and conditions that make social reintegration possible through the alternative measure requested. Work, although a means of social reintegration that may be weighed in the broader assessment of an application for probation in the care of the social services, does not of itself, where it is absent, constitute a bar to the application of that measure, being a factor to be assessed together with the other elements placed before the trial court.