REPEATED RECURRENCE: THE PREVIOUS DECLARATION OF RECURRENCE IS NOT NECESSARY

Through the order of 13 September 2022, the Fifth Criminal Section of the Court of Cassation referred to the United Sections the controversial question relating to the configurability of the aggravating circumstance of repeated recidivism in the absence of a previous conviction for a fact aggravated by a simple recidivism. In particular, over the years two different orientations on the point have emerged. According to the first orientation, for the purpose of recognizing the repeated recidivism, neither a previous declaration of recidivism contained in another conviction of the defendant was deemed necessary, nor that the conditions for recognizing it existed in the abstract (Criminal Cassation, section II , sentence, 21 September 2022, n. 35159). The second orientation, on the other hand, considered the application of repeated recidivism to be precluded in the event that simple, aggravated or pluriaggravated recidivism had never previously been recognized, due to the lack of the formal assumption of the precedence of the date of irrevocability of the previous sentence with respect to that of commission of the new crime (Criminal Cassation, section III, sentence, 15 July 2022, n. 27450). Well, with sentence no. 32318 of 25 July 2023, the United Criminal Sections of the Court of Cassation adhered to the first guideline, sanctioning the principle of law whereby “for the purpose of recognizing repeated recidivism, it is sufficient that, at the time of the commission of the crime, the defendant is burdened with several definitive sentences for crimes previously committed and which express greater social danger, subject to specific and adequate reasons, without the need to a prior declaration of simple recidivism”. This is based both on a literal interpretation of the provision, which does not contain any reference to a previous recognition of simple recidivism, and on a systematic argument according to which the declaration of professionalism of the offense is independent of the need for a prior conviction which has declared the defendant habitual offender, thus confirming the orientation set out above.