Aggravated robbery and sentence of fewer than three years? Yes under house arrest.

With regard to personal precautionary measures, the Second Section of the Court of Cassazione with sentence no. 32593, pronounced on July 8, 2021, affirmed the principle of law according to which, based on the literal interpretation of the combined provisions of Articles 275-bis cod. proc. pen. and 4-bis ord. Criminal Code, the three-year prison sentence limit for the application and maintenance of pre-trial detention in prison also operates in proceedings for aggravated robbery, although it falls within the catalogue of impedimental offences, if there are no elements such as to suggest the existence links with organised, terrorist or subversive crime; the relative burden of proof weighs on the instant since it is a positive fact for the benefit of the offender, but the non-existence of such connections can be implicitly inferred from the conduct or the personality of the perpetrators.

Reiterated that according to the most recent interpretation of the Court of Cassazione, custody in prison cannot be maintained when a sentence of fewer than three years of imprisonment is imposed, the Court paused to analyse the negative condition contained in the same provision referred to in art. . 275 paragraph 2 bis cod. proc. penal., where it is established that "... Except for the provisions of paragraph 3 and without prejudice to the applicability of articles 276, paragraph 1-ter, and 280, paragraph 3, the measure of precautionary custody in prison cannot be applied if the judge believes that, at the outcome of the trial, the prison sentence imposed will not exceed three years. This provision does not apply in proceedings for the crimes referred to in articles 423-bis, 572, 612-bis, 612-ter and 624-bis of the criminal code, as well as to article 4-bis of law 261 July 1975, n. 354, and subsequent amendments ".

Now considering that the law refers to the crimes referred to in art. 4 bis of the penitentiary system, it is to this provision that the Court referred in order to affirm that, in terms of penitentiary benefits and more gradual precautionary measures for subjects convicted of the crime of aggravated robbery, they can be granted provided that there are no elements to affirm the connection with organised crime. The aforementioned art. 4 bis in paragraph 1 ter read as follows: "1-ter. The benefits referred to in paragraph 1 may be granted, provided that there are no elements such as to suggest the existence of links with organised crime, terrorist or subversive, to prisoners or inmates for the crimes referred to in articles 575, 600-bis, second and third paragraphs, 600-ter, third paragraph, 600-quinquies, 628, third paragraph, and 629, second paragraph, of the criminal code ... ".

On the basis of the same literal interpretation of the combined provisions of the two rules (Article 275 paragraph 2 bis of the Criminal Code and 4 bis of the Criminal Code), the prohibition of application and maintenance of pre-trial detention in prison, therefore, operates for robbery aggravated where a sentence of fewer than three years has occurred and when there are no elements such as to suggest the existence of links with organised, terrorist or subversive crime.