Executive Summary and Public Interest
Preventive surveillance regimes cannot bypass personal liberty safeguards through statutory fictions or administrative convenience. When the state imposes restrictive measures on personal freedom, constitutional proportionality requires an updated and individualized assessment of actual social dangerousness. The automatic presumption that criminal inclination survives intact during short detention terms has been struck down as fundamentally incompatible with constitutional principles.
By declaring unconstitutional the two-year threshold in article 14, paragraph 2-ter of Legislative Decree 159/2011, the court established that judges must reassess an individual’s profile ex officio upon release from prison before executing special public security surveillance. The ruling directly impacts the enforcement mechanisms of the anti-mafia statutory code, closing a procedural gap that inverted the burden of proof onto citizens whose freedom remained suspended without timely judicial scrutiny.
Historical and Institutional Evolution of Anti-Mafia Prevention
Italian preventive measures have historically operated alongside traditional criminal penalties, targeting individuals suspected of persistent criminal dangerousness prior to or independently from specific convictions. This dual-track system evolved significantly with the enactment of Legislative Decree no. 159 of September 6, 2011, widely known as the Anti-Mafia Code. The architecture aimed to consolidate fragmented public security statutes into a unified operational framework.
Tension continuously surfaced regarding the interaction between active detention orders and suspended preventive measures. When a person subject to special surveillance was simultaneously serving a prison sentence, the execution of the surveillance measure was naturally suspended. For years, legal doctrine and judicial practice debated whether the end of incarceration could trigger immediate enforcement of the previously issued surveillance order without a fresh judicial review.
In 2013, Ruling no. 291 of the Constitutional Court addressed deferred measures, observing that social dangerousness verifications could reasonably be omitted in scenarios involving very short deferment periods. However, conflicting interpretations persisted across criminal courts. The supreme judicial authority intervened when the Joint Criminal Chambers of the Court of Cassation delivered ruling no. 51407 in 2018, holding that an unreviewed preventive measure remained legally suspended, thereby preventing criminal liability under article 75, paragraph 1 of the Anti-Mafia Code in the absence of an updated dangerousness finding.
Legislative reform attempted to settle the dispute earlier through Law no. 161 of October 17, 2017, which amended the Anti-Mafia Code by inserting paragraph 2-ter into article 14. This legislative amendment introduced a rigid temporal distinction: only detentions lasting at least two uninterrupted years mandated an automatic, ex officio judicial verification of persistent dangerousness upon release. For any incarceration shorter than two years, the statute established an implicit presumption that the person remained just as dangerous as when the measure was originally ordered.
Institutional Actors and Procedural Entities
The constitutional conflict was formally raised during proceedings involving Pier Luigi Scano, who had been subjected to special public security surveillance for a duration of one year under an application decree issued on January 25, 2018, and served on February 5, 2018. The practical enforcement of this preventive order was immediately suspended because the subject was already incarcerated under a separate execution order dated January 17, 2018.
The central judicial authority deciding the dispute is the [[Corte Costituzionale|Q534107]], assembled at Palazzo della Consulta in Rome. The decision on constitutional legitimacy, registered as Sentenza no. 162 of 2024 (ECLI:IT:COST:2024:162), was deliberated in the council chamber on September 24, 2024, under the presidency of [[Augusto Barbera|Q3627170]] with Judge Rapporteur [[Francesco Viganò|Q57896476]], and formally published on October 23, 2024.
Institutional defense was presented by the [[Avvocatura generale dello Stato|Q3631165]], which argued for the constitutional validity of the contested statutory mechanism. The institutional respondent asserted that affected individuals retained the procedural right under article 11, paragraph 2 of Legislative Decree 159/2011 to file a dedicated motion asking the court to verify whether their social dangerousness had ceased, thereby claiming that constitutional guarantees were sufficiently respected.
Critical Analysis of the Judicial Evidence and Constitutional Metrics
The core legal controversy centered on whether statutory mechanisms can legitimately presume that a short spell of imprisonment leaves an individual’s personal dangerousness unaltered. The Constitutional Court dismantled this presumption by measuring article 14, paragraph 2-ter against article 3, article 13, first paragraph, and article 27, third paragraph of the Italian Constitution. The ruling exposed deep structural incoherence within the statutory framework.
The proportionality in the execution of preventive measures, given their direct impact on personal liberty, constitutes a systemic requirement in the Italian constitutional order in relation to every official act capable of affecting fundamental individual rights.
Under article 3 of the Constitution, the two-year statutory threshold was deemed intrinsically unreasonable. The rule created an unjustified disparity of treatment when compared to the parallel regime governing security measures under article 679, paragraph 1 of the Code of Criminal Procedure, where judicial re-examination of dangerousness is required regardless of arbitrary sentence thresholds. Setting an arbitrary statutory cut-off at two years created two unequal classes of citizens facing identical restrictions on personal mobility and association.
Furthermore, the statutory scheme violated article 13 of the Constitution, which establishes the absolute inviolability of personal liberty. Enforcing special public security surveillance without an automatic judicial reassessment relegated fundamental rights protection to a purely eventual, subsequent petition initiated by the citizen. The court clarified that the theoretical option for a detainee to trigger article 11, paragraph 2 does not remedy the absence of a mandatory, court-initiated review before restrictive measures take physical effect.
The most profound doctrinal finding concerns the constitutional purpose of criminal punishment under article 27, paragraph 3 of the Constitution. Presuming that any detention under two years leaves social dangerousness intact directly contradicts the rehabilitative mandate of the penal system. The legal order must operate on the premise that short-term carceral sentences are capable of achieving re-educational outcomes. Denying this potential by default would invalidate the constitutional legitimacy of all short custodial sentences across the legal system.
The legal order must proceed from the premise that prison sentences of a duration not exceeding two years are capable of performing a re-educational function toward the convicted person.
The constitutional ruling excised the phrase «se esso si è protratto per almeno due anni,» from article 14, paragraph 2-ter of Legislative Decree 159/2011. As a direct consequence, the requirement for judicial reassessment prior to the activation of suspended surveillance measures now applies uniformly to all post-detention cases, completely eliminating the statutory presumption of persistent danger.
Source Transparency and Legal Domain Access
This dossier is constructed strictly from official judicial records originating from the Italian Constitutional Court. The primary source document is Judgment no. 162 of 2024, decided at Palazzo della Consulta in Rome on September 24, 2024, and registered in court records under ordinance no. 22/2024, alongside official legal maxims no. 46380 and no. 46381.
Official state acts and judicial judgments are public documents exempt from copyright protection pursuant to Article 5 of Italian Law no. 633 of April 22, 1941. The underlying official filing and complete procedural text can be directly verified and retrieved through the institutional registry of the Corte Costituzionale official portal.