25 Julho 2018
Art. 7 of the d.l. 152 of 13 May 1991 has introduced into our legal system a sanctioning mechanism whose legitimacy is highly dubious, both in terms of compliance with the major constitutional canons – first and foremost the principle of legal certainty; and in terms of application predictability in relation to the principles expressed by the other art. 7, that of the ECHR. The provision defines an aggravating circumstance whose applicability is unpredictable chiefly because of its generic descriptiveness. As is known, in order to be applicable, the provision presumes the existence either of a “mafia method”, and/or a “facilitation of a mafia-style coterie”. To define ex ante, as the rules would require, what exactly constitutes a “mafia method” is almost impossible. The impossibility is macroscopic when one takes into account that well-established case-law considers the aggravating circumstance as capable of existing despite the existence of a real and proper criminal association: the method without the mafia.
The interpretative and normative framework is no less problematic with regard to the “sub-case” referring to the “facilitation of a mafia-style coterie”: if the mafia-style consortium is supposed to actually exist, a factual reconstructive limbo gapes open. This aspect of the aggravating circumstance is, moreover, partially rivalled by the norms regulating the, so called, “external accessory” (pursuant to art. 110 – 416-bis c.p.); the legislative discipline of which is also entrusted to the unfathomable criteria of causation. As can be imagined, these become literally inscrutable where applied to psychological reconstructions. To find a specific area of applicability, “facilitation” would need to be considered as a lesser degree of “external accessory”. Consequently, regardless of the afore mentioned principles of certainty and predictability, the causative and interpretative basis for application would become even more nuanced. The alternative is, of course, to apply the aggravating circumstance of “facilitation” in addition to that of “external accessory” – with the risk of violating the ne bis in idem principle as well. To make matters worse, this undeniable normative haze is appended with an extremely lax, and easily adaptable, piece of legislation. In both the aforementioned sub-cases, the aggravating circumstance is defined as being “common and with special effect”.Accordingly, its application can distort the legal sentencing parameters of any crime, with devastating results. As regulated, it affects not only on the prison term that can be inflicted, but also on the kind of detention regime to be enforced – especially with regard to measures alternative to incarceration. This constitutes a legal aberration which, given the period of hard-line justice that our country is going through, will not be corrected soon.