ABSTRACT
In Italy, one of the options provided by the relevant legislation, that is Penitentiary Law, to serve the sentence outside the prison is afforded by probation with social services. This chapter focuses on the breach process that applies when a person who has been granted probation with social services has subsequently been accused of non-compliance with the conditions imposed by the Court of Surveillance, this being the competent authority. Italian Penitentiary Law, however, does not provide a clear description of what a violation of a condition is. Instead, it generically refers to behaviour that may break the law or non-compliance with the conditions. The Court of Surveillance has the power to react in different ways when a violation of a prescription has occurred. Normally, the breach procedure can start from a warning of the Magistrate of Surveillance with a concurrent intensification of the conditions for the probation to arrive to a form of suspension of the probation itself (that includes the incarceration of the probationer for one month while awaiting the hearing in front of the Court of Surveillance for the final decision on the recall). In cases involving serious violations, the warning and the intensification of conditions can be omitted in favour of the immediate suspension of the measure that will have to be confirmed in the form of the recall of the measure by the Court of Surveillance. The concluding part of this chapter offers a discussion on how discretion is applied by the Magistrate of Surveillance and the Court of Surveillance when a breach does occur. Discretion, it is argued, does not mean the absence of law, emptiness of rules nor is it a synonym of arbitrariness. On the contrary, the discretionary power which has been given to Magistrates needs to be supported and implemented by a full range of factual data, values and criteria and be free from any kind of prejudice or ideology, thus making this discretionary power the most important means to apply the principle of the flexibility of the sentences.
