7 agosto 2020 – La Legge “Fornero” (L. 92/2012) prevede che ai soggetti condannati per i reati di cui agli articoli 270 bis, 280, 289 bis, 416 bis, 416 ter e 422 del codice penale, nonché per i delitti commessi avvalendosi delle condizioni previste dal predetto articolo 416 bis, il Giudice Penale applichi la sanzione accessoria della revoca di alcune prestazioni previdenziali.
In particolare, l’art. 2, commi da 58 a 61, della L. 92/2012 prevede che:
“58. Con la sentenza di condanna per i reati di cui agli articoli 270-bis, 280,289-bis, 416-bis, 416- ter e 422 del codice penale, nonché per i delitti commessi avvalendosi delle condizioni previste dal predetto articolo 416-bis ovvero al fine di agevolare l’attività delle associazioni previste dallo stesso articolo, il giudice dispone la sanzione accessoria della revoca delle seguenti prestazioni, comunque denominate in base alla legislazione vigente, di cui il condannato sia eventualmente titolare: indennita’ di disoccupazione, assegno sociale, pensione sociale e pensione per gli invalidi civili.
Con la medesima sentenza il giudice dispone anche la revoca dei trattamenti previdenziali a carico degli enti gestori di forme obbligatorie di previdenza e assistenza, ovvero di forme sostitutive, esclusive ed esonerative delle stesse, erogati al condannato, nel caso in cui accerti, o sia stato già accertato con sentenza in altro procedimento giurisdizionale, che questi abbiano origine, in tutto o 25 in parte, da un rapporto di lavoro fittizio a copertura di attivita’ illecite connesse a taluno dei reati di cui al primo periodo.
59. I condannati ai quali sia stata applicata la sanzione accessoria di cui al comma 58, primo periodo, possono beneficiare, una volta che la pena sia stata completamente eseguita e previa presentazione di apposita domanda, delle prestazioni previste dalla normativa vigente in materia, nel caso in cui ne ricorrano i presupposti.
60. I provvedimenti adottati ai sensi del comma 58 sono comunicati, entro quindici giorni dalla data di adozione dei medesimi, all’ente titolare dei rapporti previdenziali e assistenziali facenti capo al soggetto condannato, ai fini della loro immediata esecuzione.
61. Entro tre mesi dalla data di entrata in vigore della presente legge, il Ministro della giustizia, d’intesa con il Ministro del lavoro e delle politiche sociali, trasmette agli enti titolari dei relativi rapporti l’elenco dei soggetti gia’ condannati con sentenza passata in giudicato per i reati di cui al comma 58, ai fini della revoca, con effetto non retroattivo, delle prestazioni di cui al medesimo comma 58, primo periodo”.
Con messaggio n. 2302 del 05.06.2017 l’INPS ha comunicato di revocare i suddetti benefici previdenziali anche in assenza di una specifica pronuncia del Giudice Penale.
Con una recente pronuncia, il Tribunale di Verbania ha statuito che l’assegno mensile di assistenza ai mutilati ed invalidi parziali non ricoverati ex art. 13 L. 118/1981 non rientra tra le ipotesi di revoca previste dall’art. 2, comma 58, della L. 92/2012.
IL CASO.
Un soggetto in stato di detenzione domiciliare per una condanna relativa al delitto previsto dall’art. 416 bis c.p. (Associazioni di tipo mafioso anche straniere), chiedeva all’INPS il riconoscimento dell’invalidità civile.
In sede di commissione medica, l’Istituto riconosceva il soggetto invalido permanente nella misura di 80 punti percentuali. A mezzo del Patronato Anmil, il condannato chiedeva, pertanto, il riconoscimento in suo favore dell’assegno mensile di assistenza ai mutilati ed invalidi parziali non ricoverati previsto dall’art. 13 L. 118/1981.
La suddetta norma prevede che: “Agli invalidi civili di età compresa fra il diciottesimo e il sessantaquattresimo anno nei cui confronti sia accertata una riduzione della capacità lavorativa, nella misura pari o superiore al 74 per cento, che non svolgono attività lavorativa e per il tempo in cui tale condizione sussiste, è concesso, a carico dello Stato ed erogato dall’INPS, un assegno mensile di euro 242,84 per tredici mensilità, con le stesse condizioni e modalità previste per l’assegnazione della pensione di cui all’articolo 12”.
La competente sede INPS negava il riconoscimento dell’assegno poiché il condannato non aveva ancora espiato interamente la pena. Il Patronato Anmil proponeva ricorso, il quale veniva rigettato.
La motivazione del diniego era da riferire all’applicazione dell’art. 2, commi da 58 a 63, L. 92/2012. Il condannato, a mezzo del proprio difensore di fiducia, proponeva quindi ricorso al Tribunale di Verbania per vedersi riconosciuto il diritto all’assegno mensile di assistenza ai mutilati ed invalidi parziali non ricoverati.
Nel ricorso veniva esposto che l’art. 2, commi da 58 a 63, L. 92/2012, non poteva applicarsi a soggetti non detenuti (perché in sospensione della pena per motivi di salute o anche perché sottoposti a misure alternative alla detenzione), ancorché condannati in via definitiva per i gravi reati previsti dalla suddetta normativa.
Diversamente, motivava il difensore, si incorerebbe nella violazione dell’art. 38 Cost., che riconosce a ogni cittadino inabile al lavoro e sprovvisto dei mezzi necessari per vivere il diritto al mantenimento e all’assistenza sociale, nonché nella violazione dell’art. 25 Cost., che prevede l’irretroattività delle leggi penali.
Nel caso di specie, infatti, il soggetto era stato condannato prima dell’entrata in vigore della L. 92/2012, che all’art 2, comma 58, prevede la revoca delle prestazioni previdenziali ivi menzionate come sanzione accessoria alla condanna penale, che, peraltro, deve essere comminata dal Giudice Penale.
LA DECISIONE.
Ad avviso del Tribunale, le ipotesi di revoca delle prestazioni previdenziali previste dall’art. 2, commi da 58 a 63, devono considerarsi tassative, trattandosi di norme penali.
Nel caso di specie, inoltre, l’Istituto non aveva contestato i requisiti sanitari e reddituali del ricorrente per il riconoscimento dell’assegno mensile ex art. 13 L. 118/1981.
Il Tribunale di Verbania, pertanto, accoglieva il ricorso e condannava l’INPS alla corresponsione dell’assegno mensile ex art. 13 L. 118/1981 in favore del ricorrente, oltre agli arretrati con decorrenza di legge e interessi legali sino al saldo, compensando le spese di lite.
AVV. DAVIDE GINELLI
Laureato in Giurisprudenza all’Università Cattolica del Sacro Cuore di Milano, è iscritto all’Albo degli Avvocati di Varese. Si occupa di diritto civile e diritto penale del lavoro. Dal 2018 collabora con l’Avv. Mauro Dalla Chiesa, Consulente Legale Nazionale del Patronato ANMIL.
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