Ripensare le modalità della risposta ai reati. Traendo spunto da CEDU 19 giugno 2009, Sulejmanovic c. Italie

[Autom. eng. transl.] The contribution offers a proposal for an overall review of the theoretical assumptions underlying the sanctioning model that characterizes the criminal law, through which guidelines are motivated aimed at diversifying the "main penalties" apparatus. In this sense, the writing constitutes a synthetic landing of numerous in-depth studies published on the subject by the author and is linked to the coordination function that he carried out with regard to the hypotheses of evolution of the sanctioning system within the Commission for the reform of the code Criminal Court that operated in the years 2006-2008 under the presidency of the lawyer. Giuliano Pisapia. He made a brief preliminary reference to the underlying problems deriving from the sentence indicated in the title, concerning the minimum conditions of conformity of the prison sentence with the European Convention on Human Rights (in particular, regarding the amplitude of the cells), the work reflects on how the traditional debate about the "function" attributable to punishment has not actually invested the content of the sentence, which continues to essentially substantiate in a "quantum" of detention representative of the gravity ascribed to the guilty fact. Consequently, the limits of recurrent attempts aimed at re-evaluating the thought of some classical supporters of the salary penalty, as they are considered expressive of a certain eclecticism about the ends that would be achievable through the penalty itself, are highlighted. In fact, such apparent openings do not affect the configuration of the sentence in the legislative and judicial sphere, a configuration which analyzes the reflexes with regard, among other things, to the prevention models, to the characteristics of the process, to the role of the victim. At the same time, the reasons for which the reductive view of individual autonomy of the criminological Positivism as a direction that historically has been opposed to the Classical School, as well as the guaranteed risks inherent in the sanctioning models referable to it, have ended up strengthening the static nature of the forms of response to the crime, keeping them in line with the traditional approach. Given these premises, the characteristics of an innovative political-criminal strategy are outlined, no longer based on intimidation and neutralization dynamics (corresponding to the paradigm of a penalty that reproduces the negativity recognized in the crime committed at the time of its infliction), but on the ability of the legal system to maintain high levels of "consent", that is to say, adherence by choice, to the regulatory precepts, also through the configuration of sanctions. Perspective, the latter, which should be accompanied, on the one hand, by a serious contrast in terms of the economic consequences of the material interests underlying most criminal behavior and, on the other, a strong commitment to primary prevention, aimed at to weaken the complex factors that favor crime and involve the entire legal system. The result is proposals aimed at making the "extrema ratio" of recourse to the deprivation of personal freedom effective, with specific attention to the efficiency of the penal system: in particular, introducing a significant range of non-custodial penalties (pecuniary for rates, reliance on services) social, probation, behavioral prescriptions, public utility services, etc.), as well as tools for the early definition of criminal proceedings (reparation procedures, etc.). From this point of view, the role that reconciliation justice ("restorative justice") and criminal mediation paths could involve in order to involve the same victims of the crimes, from the