Skip to main content

Advertisement

SpringerLink
Log in

Prison Leave in Italy: Legislation and Practical Application Is the Italian Regulation on Prison Leave Ensuring the Constitutional Purpose of Punishment?

  • Published:
European Journal on Criminal Policy and Research Aims and scope Submit manuscript

Abstract

This paper provides a description of the prison leave regulation in the Italian criminal system in order to bring out critical points and questionable compatibility with the Italian Constitution. The work starts with an analysis of the principles of rehabilitation and the prohibition of inhuman treatments which stem from the Italian Constitution (Article 27, third paragraph) and the Prison Act (Law no. 354/1975). Particularly, Art. 30 of the Prison Act allows prison leave only for woeful events occurring in the life of the detainee. In addition, “bonus leave”—introduced by further provision in Law no. 663/1986—can be granted in order to foster family ties and cultural or work interests, but only to convicts who have maintained good behaviour while imprisoned and are not labelled as “socially dangerous”. Starting from a study of statutory law and its practical application, the paper analyses the main trends in court rulings and the recent Italian prison system reform, entered into force in October 2018.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. Art. 27, par. 3

  2. On the joint reading of Articles 2 and 3 of the Constitution, see Caretti (2010), I diritti fondamentali. Torino, Giappichelli (Ed); Modugno (1995), I “nuovi diritti” nella giurisprudenza costituzionale. Torino, Giappichelli (Ed).

  3. Inviolable, inalienable (translation note)

  4. The previous Prison Regulation (no. 787/1931), approved under the Fascist dictatorship, was based on an afflictive vision of the criminal punishment; next to the death penalty, the only sanction was prison confinement, an isolated place where the detainees were not entitled to any rights.

  5. On this point, among many, the Constitutional Court ruling no. 138/2001

  6. Article 3, second paragraph, Italian Constitution

  7. A limitation of the rights of detainees is therefore only possible if there are opposing constitutional interests such as the guarantee of specific security needs. Among the many decisions of the Constitutional Court on the subject, cf. nos. 114/1979, 349/1993 and 26/1999. See, recently, also the ruling of the Court of Cassation (hereafter, Cass.), sect. I, nn. 27766, 5/06/2017

    On the concept of dignity in relation to the state of detention Ruotolo (2014), Dignità e carcere. Napoli, Editoriale scientifica (Ed.)

  8. Cf. Dolcini (1981), La “rieducazione del condannato” tra mito e realtà. In Grevi V. (edited by), Diritti dei detenuti e trattamento penitenziario. Bologna, 57–60

    Also, the Constitutional Court has progressively used the term “social reintegration” rather than “re-education”, ex plurimis, sentt. nn. 168/1972, 126/1983, 271/1998, 296/2005

  9. Also, fundamentally, the article 13 of the Constitution, which establishes the inviolability of personal freedom, guarantees of the reserve of law and jurisdiction, the prohibition of physical and moral violence against persons deprived of their liberty.

  10. Article 15 P.A. is dedicated to the discipline of the elements through which the rehabilitation treatment is implemented.

  11. As underlined by many sociologists: see, among many, Sykes (1958), The society of Captives. A study of a Maximum Security Prison. Princeton Classic Editions (Ed.) and Clemmer (1940). The Prison Community. New York: Holt, Rinehart & Winston. In particular, it is observed that the absolute segregation in prison, favouring processes of regression, increases exponentially the feeling of oppression and marginalisation of the person. In this regard, Gresham Sykes notes that in modern prison, immaterial deprivations and frustrations “can be as painful as physical ill-treatment”; the destruction of the psyche “is not less frightening than the affliction of the body” (Gresham G.M., The Society of Captives, 242).

    A wide sociological reflection on the detention and family dynamics is contained in Bargiacchi (2002), Esecuzione della pena e relazioni familiari. Altro Diritto, Resource document. http://www.adir.unifi.it/rivista/2002/bargiacchi/index.htm. Accessed 2002.

    Famous jurists also intervened on this point. It has been stated that a prospect of social reintegration cannot consider prison segregation as a useful tool. It is impractical, therefore, for imprisonment to be justified, or prolonged, for reasons relating to the improvement of the future life chances of the detainee. In this sense, Ferrajoli (2009), Diritto e ragione. Teoria del garantismo penale. Bari Laterza (Ed.).

    Criticism of imprisonment as an obstacle to the re-socialisation of the condemned man is not recent. Already in the first half of the 1800s, Jeremy Bentham described the criminal effects deriving from prison experience and the consequent removal of the person from life in society (Bentham (1829), Théorie de peines et de recompense. Bruxelles, Louis Hauman et Compagnie).

  12. Law no. 663/1986

  13. The magistrate who, in the Italian system, protects detainees’ rights

  14. Art. 30 P.A. Connected to the aims of the ordinary leave, the law provides the provision of family visits to an under-aged child (Article 21-ter P.A.), introduced by Law no. 62/2011. The first paragraph of the article provides the possibility for the imprisoned parent to visit the child who is seriously ill and likely to die or when they are suffering from a serious disability, subject to the authorisation of the Supervisory Judge or, in situations of emergency, of the prison governor. In case of a child’s hospitalisation, the modalities of the visit shall be regulated by the same Supervisory Judge keeping into account the duration of the hospitalisation and the course of the illness.

    The same article provides for the possibility for parents to assist the child during visits by consultants if they are related to serious illness and when the child is under ten years old. In these cases, the authorisation measure is issued by the competent Judge, which also determines the operating procedures (in the case of an accused person, the Judge with knowledge is in charge; in the execution phase, the jurisdiction is up to the Supervisory Judge, the same body that decides on the emergency leave referred to in Article 30 P.A.).

  15. If the provision was issued by the Supervisory Judge, the appeal is addressed to the Supervisory Court; if the provision was issued by another judicial body, it is lodged with the Court of Appeal.

  16. In addition to the granting of leaves and visits, Art. 69 P.A. entrusts the management of many competences to the Supervisory Judge.

  17. The regulation of the special detention regime is provided by Art. 41 bis P.A., and it applies, above all, to the ones convicted for crimes related to organised crime, terrorism or subversion of the social order.

  18. Cass., sect. I, 26/05/2017, no. 48424

  19. Cass., sect. I, 14/12/2017, no. 55797

  20. Cass., sect. I, 05/02/2013, no. 11581: “The necessity to consummate a marriage also in view of the procreation of children can not constitute an event likely to be traced to the category of exceptional events, as characterised by particular gravity. Ordinary leave is, instead, aimed at preventing the suffering of detention from adding that deriving from the impossibility of being close to family members on the occasion of particularly negative events”.

  21. Court of Turin, August 22, 2012: “Since the recognition of the natural child can also be done in the place of detention, permission must be rejected motivated by the need for the prisoner to go to the child’s place of birth”.

  22. Cass., sect. I, 14/12/2017 no. 55797

  23. The Italian Constitution openly protects the emotional dimension by the provisions contained in Articles 29, 30 and 31.

  24. Art. 28 P.A.

  25. These previsions are also widely included in the “Chart of rights and duties of prisoners and inmates” (2012), a document released by the Ministry of Justice that clarifies the provisions of current legislation, also in reference to personal ties, for detainees and their family members.

  26. The prevision was strengthened by recent legislative decree no. 123 of 2018, which includes in the first paragraph of Art. 14 P.A. the following provision: “The detainees (...) have the right to be assigned to an institution as close as possible to the permanent residence of the family or, if identifiable, to their social community of reference, in absence of any specific contrary reason”.

  27. Cass., no. 6754, 23/03/2003. Moving towards the same direction, several Judgements by the European Court of Human Rights (ECtHR): ECtHR, Aliev v. Ucraine, no. 29/04/2003, 41,220/98; ECtHR, Dickson v. the United Kingdom, no. 04/12/2007, 44,362/04

  28. Cass., sect. I, 27/11/2015, no. 15953

  29. Unfortunately, on this topic, the Penitentiary Administration Department does not provide any data.

  30. For a brief but exhaustive summary of the leading principles and criteria contained in the enabling act on the penitentiary system reform, see Della Bella (2017), Riforma Orlando: la delega in materia di ordinamento penitenziario. Diritto penale contemporaneo, Resource document. https://www.penalecontemporaneo.it/d/5499-riforma-orlando-la-delega-in-materia-di-ordinamento-penitenziario. Accessed 20 June 2017

    A large study on the possibilities of implementation of the criteria contained in the enabling act is contained in the volume of Giostra and Bronzo (2017). Proposte per l’attuazione della delega penitenziaria. Roma, Sapienza University Press (Ed.)

  31. See Fiorentin F. (2018), Art. 30 P.A. In Della Casa F., Giostra G. (Edited by), Ordinamento penitenziario. Padua, Cedam (Ed.), 344–351

  32. We are referring to the wide path of reflection and deepening promoted by the Ministry of Justice from May 2015 to April 2016. The General Consultation had the purpose of developing concrete proposals for a redefinition of the model of the criminal system, with the aim of a concrete realisation of constitutional and conventional principles on this topic. The eighteen thematic tables were attended by over two hundred experts working in the field of criminal execution (prison managers, educators, custodians, social workers, university professors and researchers, members of the world of associations and voluntary work, etc.).

    The reports of the working groups and the final report prepared by the Committee of Experts are published on the website of the Ministry of Justice (www.giustizia.it).

    On the importance of the General Consultation for a change of paradigm in criminal justice, see Giostra (2018), La riforma penitenziaria: il lungo e tormentato cammino verso la Costituzione. Diritto penale contemporaneo, Resource document. https://www.penalecontemporaneo.it/pdf-viewer/?file=%2Fpdf-fascicoli%2FDPC_4_2018.pdf#page=119. Accessed 9 April 2017

    See, in the same magazine, Ruotolo (2016), Gli Stati generali sull’esecuzione penale: finalità e obiettivi. Diritto penale contemporaneo, Resource document. https://www.penalecontemporaneo.it/d/4537-gli-stati-generali-sull-esecuzione-penale-finalita-e-obiettivi. Accessed 11 March 2016

  33. In the European Union, there are eleven countries that have introduced the right to conjugal visits in prison: in Spain, in the region of Catalonia, the law grants two intimate visits every month, one with the family and the other with the partner (so-called intimate visit); in Switzerland, personal meetings without visual overview were introduced in the early 1980s; and in France, some experiments are under way in order to guarantee the right to conjugal visits, through the provision of Family Visit Units (FVU) set up within the penitentiary facilities.

  34. With reference to the failure to guarantee the right to conjugal visits in the Italian prison legislation, the cross reference is to Talini (2018a), La privazione della libertà personale. Metamorfosi normative, apporti giurisprudenziali, applicazioni amministrative. Napoli, Editoriale Scientifica (Ed.), 253–284. On this point, the same Panel no. 6 of the General Consultation on the penal execution proposed to provide, within the facilities, places where the detainees could meet their family members out of the eye of the prison police, currently imposed by Art. 18, par. 2, P.A.

  35. D.lgs. nn. 122, 123 and 124, 2 October 2018

  36. A deeper analysis of the issue is contained in Talini (2018b), Gli articoli 18 e 30 dell’ordinamento penitenziario tra interpretazione conforme a costituzione e possibili questioni di legittimità costituzionale. Osservatorio AIC, Resource document. https://www.osservatorioaic.it/images/rivista/pdf/14-Talini_definitivo.pdf. Accessed 18 October 2018.

  37. This kind of leave was introduced by Law no. 663/1986.

  38. The provision concerning bonus leave is subject to a claim before the Supervisory Court according to the procedures described in the aforementioned Article 30-bis P.A. (as specified by Article 30-ter, paragraph 7).

  39. For minors, the duration of the bonus leave cannot exceed thirty days each time and the total duration cannot exceed one hundred days per year of detention (Article 30-ter, paragraph 2 P.A.).

  40. Constitutional Court, sent. no. 118/1990. In another ruling, the Court has specified that the special permits represent an “instrument (...) often irreplaceable in order to avoid that detention does not entirely prevent affective, cultural or work interests, aimed at effectively pursuing that progressive reintegration of the person in society, which constitutes the essence of the rehabilitation purpose” (sent. no. 403/1997).

  41. According to renowned interpretation, the basis of special permits is the idea of putting the condemned in front of their responsibilities, allowing them to abandon—or reiterate—their past choices.

  42. The day-release regime allows convicts to spend part of the day outside the facility engaging in work, studying or other activities useful for their social reintegration (Article 48 P.A.).

  43. Art. 30 ter, par. 4, P.A.

  44. On the importance of sport leave: Gras L., Inmates on Sports-Related Leaves: a Decisive Experience. Penal field, resource document. https://journals.openedition.org/champpenal/2302#tocto2n1. Accessed 21 September 2007

  45. Specifications regarding the connection between the penitentiary institution and the Social Services having territorial jurisdiction are contained in the circular no. 582424-4-1 of 6 June 1988 by the Department of Penitentiary Administration.

  46. A measure consisting in a reduction of 45 days of imprisonment every six months served, granted by the Judge to the detainee who has both shown proactive participation in the rehabilitation programme and has never incurred any disciplinary sanction (Article 54 P.A.).

  47. ECtHR, Boulois v. Luxembourg, no. 03/04/2012, 37575/04

  48. Circular by the Penitentiary Administration no. 3291/5741 of 3 July 1990. In the same direction also to the preceding circular no. 3246/5696 of 30 May 1988

  49. Last available data was updated 28 February 2019 (“Statistics” section, website of the Ministry of Justice, www.giustizia.it).

  50. Particularly, the legislative decrees no. 123 and 124 of 2 October 2 2018

  51. ECtHR, Sulejmanovic v. Italy, no. 16/07/2009, 22,635/03

  52. ECtHR, Torreggiani and Others v. Italy, no. 08/01/2013, 4357/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10, 37818/10

References

Court decisions

  • European Court of Human Rights, Torreggiani and Others v. Italy, n. 08/01/2013, 4357/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10, 37818/10.

  • European Court of Human Rights, Boulois v. Luxembourg, no. 03/04/2012, 37575/04.

  • European Court of Human Rights, Sulejmanovic v. Italy, no. 16/07/2009, 22635/03.

  • European Court of Human Rights, Dickson v. the United Kingdom, no. 04/12/2007, 44362/04.

  • European Court of Human Rights, Aliev v. Ucraine, no. 29/04/2003, 41220/98.

  • Constitutional Court sent. no. 296/2005.

  • Constitutional Court sent. no. 271/1998.

  • Constitutional Court, sent. no. 296/1997.

  • Constitutional Court sent. no. 168/1997.

  • Constitutional Court, sent. no. 118/1990.

  • Constitutional Court sent. no. 126/1983.

  • Court of Cassation, sect. I, no. 48424, 26/05/2017.

  • Court of Cassation, sect. I, no. 55797, 14/12/2017.

  • Court of Cassation, sect. I, no. 36329, 27/11/2015.

  • Court of Cassation, sect. I, no. 15953, 27/11/2015.

  • Court of Cassation, sect. I, no. 11581, 05/02/2013.

  • Court of Cassation, sect. I , no. 6754, 23/03/2003.

Legal texts

  • European convention of human rights.

  • European Prison Rules, COE Rec(2006)2.

  • Italian Constitution.

  • Law no. 62/2011.

  • Law no. 354/1975 (Prison Act).

  • Law no. 663/1986.

Download references

Author information

Authors and Affiliations

  1. Department of Law, Roma Tre University, Rome, Italy

    Silvia Talini

Authors
  1. Silvia Talini
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Silvia Talini.

Additional information

Publisher’s Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Talini, S. Prison Leave in Italy: Legislation and Practical Application Is the Italian Regulation on Prison Leave Ensuring the Constitutional Purpose of Punishment?. Eur J Crim Policy Res 26, 159–176 (2020). https://doi.org/10.1007/s10610-019-09432-4

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s10610-019-09432-4

Keywords

Search

Navigation