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Jobs utilities: the conditions for the application.

Supreme Court - Section Six - Judgement June 27 to September 4 2008, n. 34620
President Roberto de - Stretchers Fidelbo
Applicant Attorney General at the sub-office of the Court of Appeal Sassari

The facts and law

1. With the ruling in the Court of Sassari epigraph, in the summary proceedings, the court ordered SP to the punishment of four years imprisonment and a fine of € 18,000 for the crime under Article. 73 paragraph 5 DPR 309/1990, replacing imprisonment with that of community service, as provided in paragraph 5 - a art. 73 cit., Introduced by Law of 21 February 2006, no 49.

2. The Advocate General of the sub-office of the Court of Appeal in Sassari appealed to the Supreme Court, alleging violation of the law and failure to state reasons in relation to the criteria under Article. 73 paragraph 5 - bis DPR 309/1990.
In particular, appellant complains that the ruling by finding that one prerequisite for the application of the sentence in lieu of community service is done as the configuration of the minor, while the standard also requires that the fact is committed by drug addicts or drug taker.

In another area, the applicant states that the provision does not confer rights, nor does it require that the transformation of the sentence occurs automatically, in the presence of the conditions of the law, as is the judge on a case by case , using the criteria indicated in art. Cp 133, it must assess whether or not to replace it. Assessment in this case is entirely omitted, despite two convictions against the accused to prove violation of the Narcotics Act.

3. The appeal is unfounded.

3.1. Paragraph 5 - bis art. 73 provides the possibility to apply, in lieu of imprisonment, the penalty of community service, which is to provide self-employment in favor of the community, to be implemented by the State, regions, provinces, municipalities or at agencies and assistance organizations and voluntary organizations and private structures authorized in accordance with art. Engaged 116 health and social medical care for drug addicts.

This is a sanction that involve work can be applied only where there is the individual's consent, which must specifically requested it and because the provision does not once again the mechanism of progressive formation of the sentence, so as it was envisaged by art. 33 of Legislative Decree no. 274, 2000, the Court finds that the accused may make such a request in the alternative, as was the case.

L links under the possibility of using community service to the following conditions:

a) status of drug addicts or drug taker,

b) the conviction or sentence attenuating the plea agreement that considers the fact mild;

c) request of the accused;

d) whether the conditions for granting a suspended sentence.

According to the appellant the trial court failed to assess whether the conditions for the drug P, but in this regard it should be noted that this condition was, albeit implicitly, taken into consideration in the decision under appeal, and acts of the proceedings that the accused has been replaced on remand in prison with house arrest at the therapeutic community 'Association Spring "in its decision and that was noted of his status as a drug addict. In essence, the decision under appeal has not failed to consider the subjective condition that can lead to the replacement of the prison sentence, has rather taken for granted the subjective condition of the accused, referring to relationem to the pleadings from which it was drug addiction was clear and not disputed, even by the prosecutor of the hearing.

3.2. As for the other profile of the appeal, taking issue with the decision not to have explained under what criteria has been decided to replace the prison with the work of public utilità, si rileva che il giudice ha operato una corretta valutazione al riguardo, facendo riferimento alla lieve entità del fatto, così come prescritto dall’art. 73 comma 5- bis del d.P.R. 309/1990. Non vi è stato alcun automatismo nel meccanismo attivato dalla richiesta dell’imputato - come sostiene il ricorrente -, in quanto il giudice ha ritenuto di procedere alla sostituzione dopo avere considerato la lieve entità del fatto contestato, sulla base di una opzione che non è suscettibile di controllo in sede di legittimità, qualora sia fondata, come nel caso di specie, sulla corretta applicazione della normativa.

4. In conclusione, the action of the Attorney General shall be rejected.

PQM

rejects the appeal