Those who practice prison law are well aware of how early release represents a crucial instrument for convicted persons: the sentence reduction of forty-five days for each six-month period positively assessed is, in many cases, the concrete measure that determines the difference between one release date and another. But what happens when, during the execution of a sentence, a particularly serious negative conduct comes to light? Can such conduct reopen periods already served and, apparently, already «closed»? The answer of the Court of Cassation, First Criminal Division, in judgment no. 652 of 31 October 2025, is nuanced — and deserves careful reading by anyone involved in supervisory proceedings.
The Case: A Rejected Complaint and the Appeal to the Court of Cassation
The matter originates from the dismissal, by the Supervisory Tribunal of Salerno, of a complaint filed in the context of proceedings for the grant of early release. The convicted person's defence counsel appealed the measure before the Supreme Court, alleging erroneous application of law and a defect of reasoning: in essence, according to the defence, the tribunal had misapplied the principle of fractional assessment by semesters, using a negative event to «retroactively undermine» periods of detention already served.
The Court of Cassation found the appeal well-founded, though not in the sense of categorically excluding the possibility of a retroactive effect of negative conduct. On the contrary, the Court reaffirmed a consolidated interpretive approach, carefully delineating its applicative boundaries.
The Principle of Fractional Assessment: What It Really Means
The early release mechanism is based on a semester-by-semester logic: each six-month period is examined independently, and for each of them the supervisory judge verifies whether the convicted person has genuinely participated in the process of rehabilitation. This «compartmentalised» structure might appear, at first glance, to ensure that the assessment of one semester cannot be tainted by events occurring in another.
However, the practical application is more nuanced. The Court of Cassation reaffirms that the principle of fractional assessment does not constitute an absolute barrier: a subsequent negative event may also affect the assessment of prior semesters, provided that two specific conditions are met:
- The negative conduct must be of substantial gravity: not every incorrect behaviour or disciplinary infraction is sufficient. An episode of objectively significant weight is required — one capable of casting a different light on the convicted person's entire custodial history.
- Participation in the rehabilitation process during previous semesters must appear to have been not genuinely substantiated, in light of the subsequent conduct revealed.
