La “riflessione critica sul reato” e l'automatismo ostativo di cui all'art. 4-bis O.P. – “Critical rethinking on the committed crime” and the hindering mechanism set by Article 4-bis of the Penitentiary Law (regarding restrictions on the access to probation in case of severe crimes)

The essay examines in depth the concept of “critical rethinking on the committed crime” under Articles 27 and 118 of the Regulations containing provisions on the Penitentiary Law and on the measures entailing restrictions on, and deprivation of personal liberty (Decree of the President of the Republic 30th June 2000, n. 230). Then, drawing on a case of the Tribunale di Sorveglianza of Rome, the paper analyzes the hindering mechanism imposed on those condemned on the base of a severe crime listed in Article 4-bis of the Penitentiary Law, who are subject to restrictions on the access to probation. Hence, the writer enlarges on the reasoning to the rewarding mechanisms (“premialità”) established in the corrections system, especially in the case of detainees “cooperating with justice” (Art. 58-ter Penitentiary Law). Although the preferable solution would be the amendment of the Article 4-bis of the Penitentiary Law, the writer proposes also an interpretation consistent with the Constitution, which would soften the hindering mechanism mentioned above.