Credits to
Fabio Fiorentin

Judicial discretionary power (and its extent) and the “rieducational jurisdiction”

Issue 10/2019

Abstract. The magistrates of surveillance activity is characterized by judicial and jurisdictional procedures which display high degrees of discretionary evaluation of all the elements involved. Therefore, if  a high level of discretion is one of the main features that distinguish “re-educational jurisdiction” from other jurisdictional practices, such peculiarity suggests to outline the major critical issues regarding the principle of legality and the predictability of magistrates’ decisions, in the light of the priciples established by the ECHR and the Constitutional Court, that progressively attract the penitentiary system into the “ criminal matters”.   

This article was submitted for evaluation by two expert reviewers, with a positive outcome.


SUMMARY: 1. Introduction. The end of “legicentrical” legality and the advent of a disconnected entropic world. – 1.1. The “re-educational jurisdiction” as paradigm of the creativity of the judiciary. – 2. The “knowability” of the jurisdiction of the magistrates of surveillance. – 3. The “predictability” of the decisions of the magistrates of surveillance. – 3.1. The “predictability” in the light of the European jurisdiction and the “double penitentiary binary”. – 3.2. The subjective profile of the “predictability”. – 4. “Beyond any reasonable doubt”? – 5. The “non ultra petita” rule. – 6. Discretionary evaluation in application of the measures alternative to the detention. – 7. “Creativity” in the judiciary and constitutional boundaries. – 8. Some thoughts to conclude.


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