The ante delictum prevention: searching for a constitutional basis*

Issue 9/2021

Contribution intended for the Review Criminalia and subjected to the relative evaluation criteria, here anticipated at the same time as its publication in the Journal disCrimen.

***

Abstract. The ante delictum preventive measures, old tools of administrative law used during the nineteenth-century and the fascist era, survived the entry into force of the Constitution and are now highly regarded both by the legislator and in the courtrooms. However, while we are witnessing a continuous expansion of the ante delictum preventive law, a fundamental problem remains unresolved, namely the existence of a constitutional basis for the state power to prevent crime and its possible limits. After considering the work of the Constituent Assembly and retracing the doctrinal and jurisprudential debate, the essay proposes to lead back the preventive power of the State to art. 25 co. 3 of the Constitution, and highlights the main implications of this approach.

SUMMARY: 1. Introduction: the “silence” of the Constitution on crime prevention. – 2. The doctrinal debate after the promulgation of the Constitution. – 2.1. First opinion: the unconstitutionality of ante delictum preventive measures. – 2.2. Second opinion: the existence of a constitutional basis for ante delictum preventive measures. – 3. The position of the Italian Constitutional Court and the ECtHR. – 3.1. The identification of a principle of prevention and social security within the Constitution… – 3.2. …and the main contents of “preventive legality”. – 3.3. (Cont.): the “preventive legality” interpreted as a low standard of proof for the subjective conditions required for the application of the measures. – 3.4. The constitutional basis for measures ordered by the police commissioner (in particular, for the Expulsion Order). – 3.5. The constitutional and conventional basis for the Special Police Supervision. – 3.5.1. The Special Police Supervision in the case-law of the Italian Constitutional Court. – 3.5.2. The Special Police Supervision in the case-law of the ECtHR. – 4. In search of a constitutional basis for the preventive power of the State. – 4.1. Towards the unconstitutionality of measures ordered by administrative authorities. – 4.2. Towards overcoming the low standards of proof for the subjective conditions required for the application of preventive measures. – 4.3. Towards coordination between preventive measures and security measures.

* This research was conducted thanks to the post-doc scholarship of Fondazione F.lli Confalonieri.

To read the Reflection, click on “open file”.