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The "hard prison" in the time of Covid-19

Between punitive pretense of the state and fundamental principles of man.

The degree of civilization of a society is measured by its prisons.

FYodor Dostoyevsky


There is a fine line between the punitive or social control requirement of the State against the person who committed the crime and the state of detention of the latter underlying the re-educational function of the penalty itself: human dignity.

It seems almost to transpose the dictation of this fundamental principle when Immanuel Kant states << L'man can't̀ to be treated by anyone merely as a means, but must be treated at the same time as an end, and precisely in this̀ consists his dignitỳ >>; hence the primary purpose, the cardinal principle of our Constitutional Charter and of numerous international treaties: the recovery of the offender.


Currently the intra-masonry situation of the detention institutions - Prisons and IPM (Juvenile Penitentiary Institutes), already harassed over the centuries of inefficiency, overcrowding and inhuman conditions of detention - which, among other things, have received numerous sentences from the European Court of man (which we will talk about shortly), has been undergoing, in recent months, the threat of another invisible enemy: the health emergency dictated by Covid-19. QWhich are, therefore, currently the guidelines to follow or the possibilities granted to the prisoner?

Although unlike the Constitution, which expressly protects the right to health, moreover, on a universal basis, pursuant to articles 32, 2, 3 of the Constitution, the European Convention on Human Rights did not provide for similar provisions, the evolutionary jurisprudence of the ECtHR has been able, over time, to configure a guarantee statute also for the right to health, both for free and for prisoners.

Lastly, in fact, the ECtHR condemned Italy, in the Provenzano case c. Italy, for the violation of art. 3 of the ECHR, due to the reiteration of the 41-bis ord. penit., without a current reassessment of his health.

Moreover, the issue of incompatibilityat with the state of detention had already been addressed in the past by the ECtHR precisely in relation to another well-known Italian case, that of Contrada (see ECtHR, Contrada (n. 2) v. Italy , 11 February 2014, ric.n.7509 / 08).

With this ruling, in fact, the ECHR Court crystallized its previous jurisprudence on inhumanity of the sentence, pursuant to art. 3 of the ECHR, for the stay in prison of sick prisoners.

In order to violate the conventional parameter it is necessary, in short, that there is: a state of health severely compromised by serious pathologies; the health certification of the clinical picture that indicates the prison as incompatible; L'absence of impediments reasons'access to measurements extra walls of atonement for the sentence, such as, for example, the danger̀ social status of the subject.

It should be pointed out that attributing the incompatibility with the state of detention for health conditions in the context of protection of art. 3 ECHR has allowed the ECtHR to sanction the absolute nature of the prisoner's right to health.


Certainly relevant standard and subject of new attention, also in light of the Decree-law of 30 April 2020, n. 28 - effective from 1st May 2020, the institute of art. 147, co. 1 no. 2 of the Italian Criminal Code, on the optional postponement of the execution of the sentence, is a procedure that is incardinated, or on a partisan impulse - even before the release of the prison order, or registered in office, with a specific information from the prison management, pursuant to art. 108 reg. exec. (i.e., Presidential Decree of June 30, 2000, no. 230). The particular hypothesis referred to in co. 1 n.2 refers to the presence of the requirement ofphysical infirmity.

Needless to say, this infirmity must be inherent in an evident "gravity", showing itself as inauspicious, imminent, close up or from the danger of other relevant consequences harmful to the state of the condemned.

It should therefore be immediately highlighted that the seriousness of the pathology makes access to the prisoner essential to forms extra walls of expiation under penalty if it is objectively impossible to guarantee the same an adequate medical treatment neither in prison, nor in hospital or in any other external place of care, as per art. 11 ord. penit.

However, the harmful health consequences of staying in prison should also be taken into consideration, where detention ends up aggravating the state of infirmity stato: it is therefore necessary to assess whether, in relation to the specific case, we are therefore talking about specific analyzes by the Supervisory Magistrate on individual cases, the jailing of the offender may further aggravate his health conditions, although not with harmful effects, but such as to be able to translate into an execution contrary to the sense of humanity, referred to in art. 27 co. 3 Const.

In other words: the state of health incompatible with detention "it is not̀ limited to pathology involving a life-threatening condition, having to take into account any morbid state or physical deterioration capable of determining a situation of existence below a threshold of dignitỳ"

We are therefore faced with a relative judgment, which must always be based on the relationship between the individual condition of the subject and the condition of the intra-wall environment.

A rigorous balance between interests is therefore inherent in the deferral of the sentence opposed, of constitutional relevance: community security needs̀, on the one hand, and requests for the protection of fundamental human rights (rectius: right to health and humanitỳ of punishment), by'other.

This complex judgment is also the basis for the evaluation of perpetrators for crimes pursuant to art. 4-bis ord. penit. and people restricted under the 41-bis ord. penit .:

The postponement of the penalty pursuant to art. 147 of the Criminal Code therefore does not suffer, and this principle must be definitively clarified, of subjective foreclosures, precisely because it refers to subjects whose health conditions no longer effectively allow subjection to the punitive command of the State.

It goes without saying that it is the job of the judiciary to verify, even in more stringent terms, the social danger of the condemned person, especially if compared to authors with high "criminal potential", social danger that must be assessed concretely in light of the pathologies in progress or of advanced age.

In other words: the results of the balance between antagonistic interests "must necessarily be renewed and updated in parallel to'evolution of the health situation.


As we have already anticipated, the Supervisory Magistrate carries out a rigorous evaluation on the concrete case, athe light of'actualitỳ of the danger̀ social security, the postponement of the penalty can be ordered only if it has not been possible to order hospitalization in a civil hospital or other place of treatment in advance, or, also by transferring it to another penitentiary structure more suitable for the presence of specialized medical centers.

Recalling the memory of one case above all, that of Salvatore Riina, addressed by the Court of Cassation, with sent. n. 27766/17, with which the rejection of the application for deferment of the penalty was canceled, because "lack of motivation in terms of updating the subject's risk assessment", such as to configure those exceptional needs that impose the mandatory nature of the execution of the sentence ".

The Cassation also stated that the Magistrate is called to "verify, not only if the condemned person's health conditions, to be determined following a specific and rigorous examination, can be adequately insured within the institution of punishment or in any case in clinical centers. penitentiaries, but even if they are compatible or not with the purposes of re-education of the sentence, in the same way as a respectful treatment of the sense of humanity, which takes into account the duration of the sentence and the age of the sentenced person in comparison with his social danger "

This is, of course, a complex judgment, a balance between the prisoner's health conditions and the prison regime, whose assessment "must be carried out both in the abstract, with reference to the parameters established by law, and in concrete terms, with reference to the possibility of effective administration in the penitentiary circuit of the therapies that need.

For example, the Surveillance Office of the Court of Milan, dd. 10.03.2020 rejected the request for deferment of the sentence for an author sentenced to life imprisonment called "hostile", because, in the overall judgment, the magistrate considered the social security needs prevailing, considering the prisoner currently dangerous ; decision confirmed also by TDS Milano, with ordinance dd. 23.03.2020, for which, in addition to the picture of subjective social danger, the health situation of the condemned was assessed as "not serious", still treatable by the state of detention


The Supreme Court also prescribes a hierarchical order of preliminary considerations, which must be carried out by the magistrate: the postponement of the penalty represents, in fact, a residual remedy, only where all the other intra-wall solutions are not, at present, practicable «the permanence in prison can be deliberated if the judge ascertains that there are institutions in relation to which a compatibility judgment can be made (between the subject's health conditions and the prison regime) and this assessment must represent a "primary moment" with respect to the decision and not a executive mode of the same, remitted to the administrative authority (V. Criminal Court, Section I, 19 June 2019, n. 41410)


Referring to another very recent case, the Supervisory Office at the court of Milan, with provision dd. 20.04.2020, has ordered the postponement of the sentence, in the forms of home detention mentioned above, for an inmate incarcerated under the 41-bis ord. penit, of advanced age, with a near end of sentence and a compromised and irreversible clinical picture: in line, therefore, with the assessments of the Court of Cassation, for perpetrators of crimes over seventy, the magistrate concluded that: "considering the not far penalty in the face of a long imprisonment, the existence of family references, the age and the compromised clinical picture of the condemned, the danger of escape and repetition of the crimes must be reasonably excluded. (See Sorv Office Milan, 20.04.2020)

As we mentioned the decree-law April 30, 2020, n. 28 - in force from 1st May 2020 - to art. 2, intervened on the rules relating to home detention and the granting of permits, establishing that, if the applications are presented in'interest of prisoners for mafia or terrorist offenses, l'before ruling, the competent authority must request, among others, the opinion of the public prosecutor at the court that issued the sentence and, in the case of prisoners subject to the regime provided for by the'article 41-bis OP, also that of the national anti-mafia and anti-terrorism prosecutor in relation to'topicality of the links with organized crime and the dangerousness of the subject.

It was then expected that, except for the existence of reasons of exceptional motivated urgency, the permit cannot be granted before twenty-four hours from the request of the same opinions, while for the application of home detention, the surveillance magistrate and the surveillance court will decide not earlier, respectively, than two days and fifteen days from the request of the aforementioned opinions, even in the absence of them.

In these days we hear continuous references to a phantom list 376.

In the list, sent a few days ago by the Department of Prisons to the Parliamentary Anti-Mafia Commission (which had expressly requested it), there are the names of bosses of the rank of Zagaria, Bonura, Iannazzo and Sudato, placed under house arrest by the judges for the emergency virus.

In the list are also present names of ex-prisoners still linked to the gangs and operating on a criminal level, names of the type of Antonino Sudato, life imprisonment, held in the most rigid department of the so-called High security, the one labeled with the number 1.

No high security home 2, where terrorists are imprisoned.

All the other released prisoners were in High Security 3, the circuit that houses the army of mafias and drug gangs, 9.000 inmates in total. About 200 of the 376 in total are still awaiting trial, however, and the Ministry of Justice has no jurisdiction over these.

A list of the bosses of various thicknesses who in the last month and a half have been released by the judges for the risk of Covid (or for other diseases) and who live under house arrest today, in their territories.

They are leaders, wingmen of the gangs, debt collectors and drug traffickers.

Monitoring by the Department of Penitentiary Administration has revealed an unprecedented number.

Removed from journalistic considerations, however, there is no doubt that we are therefore faced with a dangerously borderline situation where primary interests such as physical integrity, dignity of the human being, re-educational purpose of the penalty, needs for protection and control of safety and public safety they are continuously weighed, making the "balance" of public opinion tip on one side or the other.

The task of the Magistrate and of us operators of the law remains only to reiterate what are the inviolable rights of every human being, free or restricted that he is, and to submit in the most clear and precise way those that are the elements favorable to the granting of a alternative measures to detention.

Conversely, the primary task of the state is to ensure that the detention of the offender takes place by respecting all the standards of health of the prisoner's physical and moral integrity.


The Cecatiello Law Firm advises its clients for the best management of criminal proceedings.



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