Praeter delictum preventive measures against individuals and the slow process towards greater precision

Praeter delictum preventive measures against individuals represent a legal arrangement of ancient origins which characterizes the Italian legal system . Despite being subjected to a series of amendments over time, this type of measures has endured to the present day. The reference text is currently represented by the Legislative Decree no. 159/2011 (s.c. Antimafia Code), which envisages two types of measures discerned by the different individual interests involved. First of all, there are the personal preventive measures (which in some cases can have impact on personal freedom and freedom of movement), that are imposed by the General Director for Public Security (‘questore’), in certain instances, and by the judicial authority, in others. The ‘mandatory expulsion’ order (‘Foglio di via obbligatorio’) ex Article 2 and the ‘oral warning’ (‘avviso orale’) ex Article 3 fall in the former category and they concern the so called ‘ordinary dangerous’ individuals (‘pericolosi generici’) described by Article no. 1, letters a, b, c. The various form of special surveillance (Article 6) are instead applied by the judicial authority and concern the qualified dangerous individuals (‘pericolosi qualificati’) i.e. subjects described byArticle 4, who in turn also include those considered by the abovementioned Article 1. The second type of measures consists of patrimonial preventive measures affecting the patrimony of the recipient or, under given circumstances, of her/his heirs/successors in title. The latter will not be discussed in the paper. The recent February judgment of the Constitutional Court (j. no. 24/2019) declared unlawful the inclusion among the recipients of these measures “ individuals who, on the basis of factual evidence, may be regarded as habitual offenders”(“abitualmente dediti a traffici delittuosi”) covered by art. 1, letter a). This paper retraces the critical aspects which - in spite of the aforementioned ruling - continue to affect the preventive personal measures with reference to the compliance of the principle of legality and precision and not only.