Decision of the Court of Cassation, United Criminal Sections, No. 40076 of 27 Avril 2017

The United Criminal Sections of the Court of Cassation examined the manner of interpreting Article 75.2 of legislative decree No. 159 of 2011, after the decision of the ECHR Court of 23 February 2017 on the case de Tommaso v. Italy. The Article imposes some obligations upon those subjected to special preventive surveillance measures due to public security, including the prescriptions of “living honestly and respecting the law”. In the views of the ECHR Court, said provision is too much vague in content and thus in breach of various articles of the ECHR (concerning the legality principle in criminal matters, the individual right to fair trial, etc.) and Article 2 of Protocol No. 4 to the ECHR. The United Sections agreed on the fact that, due to its wording, Article 75.2 is unable to set up an autonomous criminal offense as far the prescriptions of living honestly and respecting the law are concerned; non-respect of this moral exhortation can have as an effect just to possibly aggravate the preventive surveillance measure. So said, there was no necessity for the Court to raise a constitutionality issue concerning Article 75.2; however, the II Criminal Section of the Court subsequently raised the issue, actually, by order No. 49194 of 25 October 2017.