Personal precautionary measures and reparation for unjust detention: Report to Parliament

In compliance with the disclosure obligations established by the law 47/2015 (as complemented by Law 103/2017) the Government submitted a report to Parliament containing:

  • data, surveys and statistics relating to the application, in the previous year, of the personal precautions broken down by type, with an indication of the outcome of the related procedure, if completed;
  • data relating to judgments recognizing the right to repair for illegal detentionpronounced the previous year, specifying the reasons for accepting the applications and the scope of the repairs;
  • data on the number of disciplinary proceedings initiated against magistrates for the injustices found in the outcome of the related proceedings, if concluded; data relating to the judgments recognizing the right to reparation for unjust detention, issued in the previous year, specifying the reasons for accepting the requests and the scope of the reparations; Data on the number of disciplinary proceedings initiated against judicial detention, indicating the result, when it has been concluded.

The report consists of two parts:

  • there Part I refers to the detection of precautionary measures coercive staff (not even the disqualifiers), by following the data provided by the competent judicial offices (GIP sections and debate sections) whose response was 70% (lower than the previous three years but still considered significant );
  • there Part II performs the analysis dedicated to the measures of recognition of the right to repair for illegal detentionthe scope of repairs and disciplinary proceedings against magistrateswith the contribution provided by the MEF and the General Inspectorate.
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1. Part I – Personal precautions

The analysis carried out with reference to personal precautionary measures has made it possible to carry out significant findings, the most important aspects of which can be summarized.

First of all, the comparison of data for the 2020-2021 biennium with those for the 2018-2019 biennium was highlighted. a significant decrease in the total number of measures issued, probably due to the effects of the pandemic, but a percentage distribution by type of measure dictated is not substantially different, except for the slight decrease in the measure of imprisonment, the deflation of which remains the main goal of the reforms in the matter;

The follow-up of the data with reference to the period of four years considered together allowed, then, to ascertain that:

  • private precautionary measures constitute approximately 58% of all measures issued, while non-private measures constitute approximately 42%;
  • one in three coercive precautionary measures is imprisonmentwhile one in four coercive precautionary measures is house arrest;
  • 14% of house arrest is applied with electronic control procedures (the so-called “wristband”), while the remaining 86% is applied without said electronic control;
  • the application of expatriation ban and pre-trial detention measures in a care center seems extremely residual.

1.1. Analysis of measures by type of office: Gip and Debate

As for the type of office involved in monitoring, the report highlights how approximately 3/4 of the measurements are issued by the GIP sectionswhile only the remaining quarter is published in the Debate sections.

Considering the percentage distribution of the type of measure dictated by the two different offices, the investigating judge uses the measures of the obligation to present to the judicial police and the prohibition of residence in a considerably more frequent way than the judge of instruction; the opposite is true, however, for measures of pre-trial detention in prison and for the prohibition of approach. In particular, for pre-trial detention in prison the difference seems very significant as the GIP uses the prison measure almost twice as much (34.1%) compared to the judge of first instance (17.8%).

1.2. Analysis of the measures dictated by geographical areas

The analysis of the data transmitted by the judicial offices revealed that seven districts (Rome, Milan, Naples, Bologna, Turin, Bari, Florence), considered together, contain more than half of the national total of the measures issued, and that for this reason with regard to the percentage distribution of the measures dictated by geographical areas, with reference to the year 2021, the following percentages can be identified: North 40.7% – Center 20.4% – South 25.3 % – Islands 13.6%, of which shows that most of the measures are concentrated in the North.

1.3. Analysis of the measures dictated by year of registration of the procedure

With regard to the year of registration of the procedure in which the coercive precautionary measure was issued, the report states that 8 out of 10 measures are issued in the same year in which the procedure to which they belong is entered in the register.

1.4. Analysis of the measures dictated in the defined procedures

The record of the measures dictated in the defined procedures (that is to say, in the Report, also those defined in a non-irrevocable way) allows to see, on the one hand, if the application of the measure was consistent with the result of the procedure. , on the other hand, for example, if the type of measure dictated was always compatible with the subsequent non-existence of the conditional suspension of the sentence in the procedures defined with conviction.

Limiting the analysis to only 32,805 measures issued in 2021 in the files defined in the same year the report highlighted it82.1% (26,941) of the measures belong to files defined and registered in 2021 while the remaining 17.9% (5,864) correspond to files defined in 2021 but registered in previous years. The high percentage of 82.1% seems to prove that the procedures in which coercive personal precautionary measures are issued have shortened the terms of definition, a circumstance probably due to the fact that there are already serious indications of guilt against the person.

With regard to the different types of measures issued in the framework of the procedures defined in the same year of issue of the precautionary measures, which include: 9 out of 10 measures were handed down in a proceeding that resulted in a conviction while 1 in 10 measures has been issued in a proceeding which has subsequently resulted in acquittal or acquittal.

2. Reparation for illegal detention. Extension of repairs. Disciplinary proceedings against magistrates

The second part of the report analyze data relating to sentences recognizing the right to reparation for unjust detention (not even those of repair for miscarriage antic art. 643 cpp).issued in the previous year, specifying the reasons for admitting the applications and the scope of the reparations, as well as the data relating to the number of disciplinary proceedings initiated against magistrates for the unjust indication of the result, when it concludes.“: This, based on information from all the Courts of Appeal distributed throughout the country, with the exception of the Court of Appeal of Brescia.

Regarding the data relating to measures to recognize the right to reparation for unjust detention the analysis carried out by the General Inspectorate of the ministry revealed a significant increase over the previous year in the decisions to accept applications for repairs, in particular in the districts of Reggio Calabria, Catania, Perugia, Bologna and Rome ;

Likewise, the examination of the acceptance orders no longer subject to appeal corresponding to the year 2021, carried out on 490 measures, he stressed that 292 ordinances, 60%, refer to cases of compensation of “absolution“(art. 314, co. 1, cpp) I 198equal to the remaining 40%, in case of repairs “of the illegality of the precautionary order«(Art. 314, co. 2, cpp).

Regarding the scope of repairsThe data provided by the MEF shows that the total amount paid for reparations for unfair detention in 2021 (€ 24,506,190), referring to 565 measures, is lower than that recorded in 2020 (€ 36,958,291), when the measures were 750; and also the average amount per measure for the year 2021 (€ 43,374) is lower than the 2020 figure (where the average amount was € 49,278).

The largest disbursements correspond to measures in the southern area; in particularthe largest payments were made in connection with measures of the Court of Appeal of Reggio Calabriaboth in absolute and average values.

2.1. Disciplinary proceedings against magistrates for unjustified detentions

Regarding the disciplinary proceedings against magistrates The analysis shows that the anomalies that may occur in correlation with the unfair compression of personal liberty in the precautionary phase are constantly monitored by the ministerial offices, both during ordinary inspections and after complaints and reports of the parties, their lawyers and individuals. ; that the disciplinary regime allows for the interception and sanctioning of reprehensible conduct long before and independently of the judicial verification of the conditions for the recognition of the reparation; that from the follow-up carried out no correlation arose between the recognition of the right to reparation established in the above-mentioned measures and the disciplinary misconduct of the magistrates.

Within the framework of the aforementioned follow-up, the disciplinary actions promoted and defined in the 2019-2021 triennium relating to cases of disciplinary infringement in accordance with art. 2 letter. g) of Legislative Decree no. 109/96 “the misrepresentation of the facts caused by inexcusable negligence“, Considering only those exercised by releases beyond the terms of the law.

During the year 2021 5 actions have been promoted and of these two are in progress, two conclude with acquittal, one with acquittal. In 2019 and 2020, 24 and 21 were promoted: of those in 2019, only 4 are in progress, none of the others have hesitated in warning or censorship; by 2020 they are all underway.

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