il libro - Silvio Riondato

64 L. Pasculli, C. Candiotto, S. Riondato
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taken in conformity with the relevant legal provision for the treatment, education or
correction in institutions of a person of unsound mind, an alcoholic or drug addict
or vagrant or a person spreading contagious diseases, when such persons constitute a
danger to the public, apprehension or detention of a person who enters or attempts
to enter illegally into the country or for whom a deportation or extradition order has
been issued.
e peculiarity of such provision is the fact that, after the express legitimization
of penalties and security measures, it then lists a number of measures and restrictions
which, in most civil law legal orders, would be normally considered security measures.
It almost seems that measures such as (coercive) educational measures for minors
or therapeutic, correctional measures for dangerous persons aected by various illnesses
(the mentally ill, the drug addict, the alcoholic, persons spreading contagious
diseases) are not included in the scope of security measures. ere could be several
interpretations for such a normative choice.
First of all, one could simply maintain that the list of measures in the cited paragraph
is but an exemplication of possible security measures. at seems to be hardly
plausible for a constitutional norm regulating one of the most important values for
the human being. On the contrary, such a norm should strictly and expressly establish
the cases when law could prescribe restrictions to personal liberties, otherwise
its function of guarantee would be frustrated. All the same, given the literal formulation
of the provision concerned, which quite clearly separates security measures from
the measures listed straight after, it sounds quite unlikely also that the list could be a
complete and exhaustive list of all the possible security measures.
A more reasonable, but nevertheless very critical, interpretation could be that
while the rst phrase of the Paragraph refers to proper security measures, that is
restrictive measures applicable only post delictum, that is after a crime has been committed,
the enforcement of measures provided by the second phrase does not necessarily
imply the previous commission of a crime. is could be a way to forbid
preventive (pre-crime) detention of dangerous subjects, except for the cases explicitly
listed here (minority, mental illness, drug addictions and so on), whereas preventive
(post-crime) detention of dangerous subjects is allowed also in other cases (provided
that they are prescribed by law). Since the list of measures contained in the Paragraph
concerned covers almost all cases of dangerous non-imputable subjects, such interpretation
could lead to conclude that in the Turkish Constitutional system the application
of security measures is permitted also with regard to dangerous imputable
authors of crimes (the norm does not specify whether in addition or in alternative to
punishment), like in other European countries (such as Italy).
e formulation of Paragraph 2 raises other perplexities. Again, as in the case of
many restrictions on other personal rights and freedoms, some expressions are too
undetermined to serve their purpose of constitutional limitations to unlawful restric-