LA MESSA ALLA PROVA RIFORMATA, TRA GIUSTIZIA RIPARATIVA ED ESECUZIONE ANTE IUDICIUM. SPUNTI DI RIFLESSIONE PER IL PROCESSUALISTA.

The main question in the regulation on probation is whether the procedure is compatible with the presumption of innocence. According to critics, this procedure allows the imposition of a criminal sanction based exclusively on a “provisional execution order”. This would create a “crypto-convic- tion”, which would break the link between the penalty and the judgment pursuant to art. 27 para- graph 2 of the Constitution. However, the Constitutional Court offers a different and innovative vision of the procedure that values the new content of probation and achieves a revolutionary re- sult: the treatment program is not “a punishment that by its nature can be applied by force” but gives rise to an activity left to the will of the accused. Probation thus becomes the gateway to re- storative justice programs. Nevertheless, the “Cartabia” reform moves away from this innovative vision and thus loses an important opportunity to facilitate the entry of restorative justice into the criminal trial.