The United Sections of the Supreme Court of Cassation, by judgment no. 32318/2023, lodged on 25 July 2023, held that “for the purpose of recognition of repeated recidivism, it is sufficient that, at the time of the offence, the accused is already burdened with several final sentences for crimes previously committed to underline a greater social danger, subject to specific and adequate motivation, without the need for a prior declaration of simple recidivism”.
The Fifth Criminal Chamber had referred the matter to the United Sections considering that, for the configurability of repeated recidivism, a previous final sentence of conviction for an offence aggravated by recidivism was necessary. The Attorney General also pointed out that the absence of a previous declaration of simple recidivism would deprive the convicted of the possibility of adapting his/her conduct to this declaration, and this was in clear contrast to the re-educational function of the penalty.
Nevertheless, the United Sections came to the opposite conclusion, stating that “the repeated recidivism can be ascertained, withheld and applied against a recidivist subject, to be considered as such as already convicted twice for not negligent crimes, even if this condition of recidivism was not considered in the previous judgment”.
At least, the Supreme Court, taking up a previous judgment of the United Chambers (No. 20808/2018), reiterated the importance of the motivational aspect of recidivism and made it clear that overcoming the concept of recidivism as a subjective status determined solely by criminal records no longer makes admissible a motivation entrusted to style formulas. The judges, on the other hand, maintain that an argument must be made which, by specifying the factual elements considered and the criteria used to evaluate them, explain the culprit’s greatest guilt for not having been distracted from the criminal resolution by the effect of the previous ones.
The factual elements and the assessment criteria to which the statement of reasons must refer remain those already indicated by the United Sections themselves in the Calibè judgment (No. 35738/2010), that is, “the typology and the offensiveness of the crimes, their homogeneity and temporal location, the deviation of which are overall significant and the occasional or not of the last crime, as well as any additional data emerging from the concrete case. About repeated recidivism, the principle translates into the necessity that the facts, subject to previous convictions and the new crime, are examined in their symptomatic connotations of a progressive strengthening of the criminal determination and the attitude to crime of the offender”.