The prison system
9.1. The organization of the prison
system
Before 1922, the Italian prison
system was under the direction of the Ministry of Interior. Since then, it has
been under the direction of the Ministry of Justice, which determines the
general outlines of Italy’s basic criminal justice policies.
The prison administration consists
of the Department for Prison Administration located in the Ministry of Justice
(the Ministries are divided into various Departments which are each responsible
for a certain matter). The head of the department is usually a Cassation judge
nominated by the Government upon proposal of the Minister. The Department for
Prison Administration is divided into regional superintendencies that control
the activities of individual penal institutions located in each regional
territory. The Directors of the Prison Administration are placed at the head of
the individual regional superintendencies and penal institutions. The personnel
of the Prison Administration comprises, in addition to the employees and
officials, the correctional police corps which has the task of guaranteeing
order within the correctional institutions, as well as the social service staff
which provides useful information for applying, modifying or revoking the
security measures and instruments used to assist the offenders’ social
rehabilitation. The social service centres supervise and support the offenders
subjected to the alternative measures.
Although it is not part of the
Prison Administration, the Court supervising the execution of the sentence
(Giudizio di sorveglianza and Tribunale di Sorveglianza) plays an important
role during the application of the sentence. In fact, this body has the task of
controlling that the law is respected during the execution of the sentence. It
guarantees the rights of the detainees and supervises the application,
revocation and modification of the personal security measures. It also decides
on the possible application of alternative measures to imprisonment as well as
on all the general benefits that can be granted to the persons who have been
sentenced, such as leave permits, leave permits for good conduct, permission to
work outside the correctional institution and conditional release.
The Magistratura di Sorveglianza
also guarantees that the sentence is executed in compliance with the law. This
is no longer under the exclusive jurisdiction of the Administration and
therefore better guarantees the rights of the detainees. In fact, the
provisions adopted by the surveillance magistrature are issued by a
jurisdictional body once the parties have been heard.
The surveillance magistrature was
introduced in 1975 by Law 354. Its jurisdiction has been widened considerably
to reflect the new effort to strengthen the educational role of penal sanctions
(Article 27 of the Constitution).
A sentence may be executed only when
the judgement becomes final. When it does, the public prosecutor issues an
order of execution of said sentence, and transmits it to the Judicial Police.
The fact that the Chief of the
Public Prosecutor’s Office still has this task has been the cause of much
concern among legal scholars. They claim that there is a fundamental
contradiction between the adoption of an accusatorial procedure which places
the prosecution and defence at the same level, on the one hand, and the
assignment to one party only (the public prosecutor), instead of to a third
party, of the power to concretely execute the sanction.
The penal institutions for adults
are divided into preventive detention institutions, institutions for the
execution of sentences and institutions for the execution of security measures.
The institutions for the execution of
sentences are in turn divided into arrest centres and detention centres.
The institutions for the execution of
security measures are divided into prison farms, work homes, treatment and
custody centres and judicial psychiatric hospitals.
Many of the above-mentioned
distinctions are only theoretical, however, since the provisions provided for
the different types of penal institutions according to the different categories
of offenders are very often not implemented. This is also true for the other
penal provisions according to which detainees aged under 25 must be kept
separate from the other detainees in order to avoid a reciprocal negative
influence. In the same way, prisoners who are subjected to security measures
and people who are under precautionary detention must be separated from sentenced
persons.
The provisions have never been
applied due mainly to financial reasons. The State does not yet have sufficient
financial resources to build the different penal institutions. This is one of
the greatest limits of the Italian penal system, since it has been noted for
quite some time that promiscuity among the different types of detainees is
highly criminogenic: the most dangerous convicts exert a strong negative
influence on the other prisoners, while also representing an obstacle to their process
of social rehabilitation.
Another penal provision that has
practically never been enforced is the one which guarantees single cells to
indicted persons (i.e. those who are being tried and have not been convicted
yet). The overcrowding of almost all the prisons has in fact made it impossible
to implement this provision. Therefore, it is quite common to find numerous
prisoners in cells meant for one person, both in prisons containing convicted
prisoners and in preventive custody institutions.
This problem does not exist in the
juvenile penal institutions because they are special structures that have been
built and run for some time now. They consist of penal institutions which house
minors who have been indicted and convicted for serious offences, first
reception centres, which minors who have been arrested or detained until the
hearing is set, communities which host minors placed at the disposal of the
authorities or who are serving sentences and semicustodial institutes which
contain minors placed under a semicustodial regime.
The regional superintendent has the
task of deciding on transfers in the same district. Otherwise, they are decided
by the Department of Penal Administration.
Transfer has often been misused,
however, and has become a real disciplinary sanction. For this reason, it is
still feared by the detainees.
The rehabilitation of convicts and
detainees consists of educational, work, religious, cultural, recreational and
sport activities and encouraging positive contacts between the detainees and
their families and the outside world. Offenders who have not been convicted are
exempt from any form of treatment since they are not considered guilty until
the sentence becomes final, and hence cannot be considered in need of
treatment.
A group comprising the director of
the institution, the staff and the other experts who have examined the convicts
or detainee work out individual treatment programs. These must be approved by
the surveillance judge and then implemented by the educators who are
co-ordinated by the observation group.
One of the most important
instruments envisaged for the re-educational program is work. Articles 15 and
20 of the Prison Regulations are quite clear on this point. Therefore, working
activities within the prison system are not considered a kind of punishment but
social rehabilitation tools. This means that they must be remunerated. The
total wage paid to the working detainee is determined by the public authorities
and cannot amount to less than two-thirds of the wage paid for the same type of
work outside the institution. The sums that the detainees have to pay as
compensation for damage, court costs as well as the prison costs, are deducted
from this wage. Nevertheless, the final remuneration cannot be less than
three-fifths of the gross wage.
It should also be stressed that the
detainees’ working activity only has a partial social rehabilitation function.
This is because the working arrangements in the penal institutions make it
difficult for the detainees to acquire the same level of professionalism that
they would acquire outside, and which would make it easier for them to become
part of society again. In fact, the work carried out within the penal
institutions consists mainly in producing goods (covers, clothes and linen)
that are sold to the penal administration and not to the outside world. This is
not inductive to the adoption of modern productive techniques (which, if they
were adopted, would reduce the need for labour and thus the possibility of work
for the detainees) and therefore makes appropriate reintegration of prisoners
in the outside workplace difficult.
External
working activities do not present
these limits, however, and the possibility of their application, which is
already recognised in the Italian penal system, has been notably widened by Law
663 of 1986. The detainees can carry out these external working activities for
public and private enterprises, as well as for families and professionals.
Although the director of the
institution decides whether or not a detainee can work outside the institution,
his decision must be approved by the surveillance judge.
Under certain conditions, detainees
may also be granted special leave permits. Leave
permits were introduced in Italy for the first time in 1975 by Law 354.
Following a series of legislative changes, caused by the public alarm due to
the commission of crimes by detainees on leave, the following provision is
currently in force: Indicted persons, convicted persons and detainees,
irrespective of any evaluation relating to their behaviour, can enjoy leave in case of necessity whenever the
life of a member of their family or a spouse is at risk or, in exceptional
circumstances, for particularly serious family events. The leave permit cannot
exceed five days. The surveillance magistrate decides on whether or not to
grant leave.
Leave permits for good conduct can be granted only under particular
conditions to persons who have been sentenced, i.e. they must have served at
least three years of their prison sentence or, in the case of life sentences,
at least ten years, they must have maintained regular good conduct and must not
be considered socially dangerous. If these conditions are met the surveillance
magistrate grants said leave if this allows the detainee to develop affective,
cultural or work interests. Each leave permit cannot exceed fifteen days, and
no more than 45 days of leave can be granted each year.
There is a very large number of
foreigners among the Italian prison population, the majority of whom are
citizens of non-EU countries and are usually immigrants coming from North
Africa, Albania and the former Soviet countries.
Italy has signed various
international conventions which oblige it to extradite any foreigners found on
national territory. The major international conventions of which Italy is a
party are the European Convention on Extradition signed in Paris on December
13, 1957, which was enacted by Law No. 300 of 1963, the European Convention on
the International Validity of Repressive Judgements, adopted in The Hague on
May 28,1970 and enacted by Law No. 305 in 1977, Law 755 of 1984 which ratified
and implemented the second additional protocol to the European Convention on
Extradition, which was signed in Strasbourg on March 17, 1978, Law 720 of 1985
which ratified and implemented the agreement on the application of the European
Convention on the Suppression of Terrorism among the Member States of the
European Communities, which was signed in Dublin on December 4, 1979, Law No.
332 of 1988, which ratified and implemented the Convention on the Transfer of
Sentenced Persons, adopted in Strasbourg on March 21, 1983 and Law No. 257 of
1989 containing provisions for the creation of the international conventions
relating to the execution of criminal sentences.
9.2. Conditional release, amnesty
and pardon
In view of social rehabilitation,
convicted persons can be granted conditional
release if their behaviour is conducive to believing that this treatment
would be successful.
In fact, in compliance with Article
176 of the Penal Code, conditional release is granted to convicts who, while serving
the sentence, behaved in such a way as to ensure the successful outcome of this
provision. Conditional release can only be granted to those detainees who have
already served thirty months in prison and at least half of the imposed
sentence, if the remainder of the sentence does not exceed five years. These
terms increase in the case of a recidivist.
Prisoners serving a life sentence
can also be granted this benefit, as long as they have served at least 26 years
of their sentence.
Conditional release is only granted
to those who have fulfilled the civil duties resulting from the offence, unless
they can prove that it was impossible to do so.
The body responsible for this
measure, which used to be the Ministry of Justice, is now the surveillance
court.
The granting of conditional release
produces the following effects: the state of detention ceases to exist, the
application of security measures is suspended and the application of controlled
release is applied. As far as the latter is concerned, it should be stressed
that given the scanty provisions relating to its application – i.e. the
obligation for the controlled person not to change his/her residence, as well
as to inform the controlling bodies if he/she changes his abode within the area
of residence – the judicial practice has worked out a series of typical
prescriptions to make up for this. Therefore, the surveillance court normally
imposes the following prescriptions: the obligation to find a stable job, to
return home before a certain hour, to leave the house only after a certain hour
in the morning, the obligation not to socialise with certain persons, the
obligation not to participate in public demonstrations without prior
authorisation from the police, and the obligation to present him/herself before
the surveillance judge.
Conditional release produces a
definitive effect, i.e. the cancellation of the penalty once the duration of
the sentence has elapsed, or, in the case of life term offenders, following a
period of five years since the commencement of the sentence.
Conditional release is revoked if,
during the said period, the offender commits a similar offence or does not
abide by the prescription that was imposed on him. Upon revocation, the
offender will continue to serve the sentence in prison and the time spent on
conditional release will be deducted from the length of the sentence.
The penalty can be commuted also
following a pardon or amnesty.
The President of the Republic has
full power of discretion to grant a pardon
(Grazia). In a pardon the sentence is commuted in whole or in part.
Amnesty (Amnistia) can either be granted before
or after a final conviction. When it comes before a conviction, amnesty annuls
the criminal nature of the offence, otherwise it only commutes the sentence.
This is a general and abstract
provision whereby the State decides not to punish a certain category of crimes.
It can be subordinated to obligations and conditions (such as the fulfilment of
civil duties).
In its original version, the
Constitution envisaged that amnesty was to be granted by the President of the
Republic on behalf of Parliament. The interpretation given to this provision
was that the Head of State should limit himself to guaranteeing and
promulgating the enabling act approved by Parliament.
This instrument has been frequently
used in Italy. Amnesties were granted for various reasons and on numerous
occasions (some forty amnesties have been granted since the Constitution came
into force). The reasons for this excessive use of an instrument which was
obviously intended to promote social security following a period of exceptional
historical events are probably related to the need to find a way out to lighten
the extremely heavy penal caseload and the resulting overcrowding of prisons.
Moreover, instead of solving the structural causes of these phenomena,
represented by a “flood” of penal legislation – so much so as to be called a
“panpenalisation”- it was preferred to resort to amnesty. Amnesty was therefore
utilised as the surrogate for an increasingly called for, but never achieved,
reform of the penal system which attempted to adopt an ideal of a minimum – or
at least strongly reduced – penal law which aimed only at protecting the
fundamental values of the Constitution, i.e. the basic requirements of civil
society.
The proliferation of the use of
amnesties was criticised because it reduced the intimidating force of the penal
law, made the efforts of the police and magistracy useless and increased the
number of delinquents in circulation.
In 1992, in response to this
criticism, some of the provisions of the Constitution regulating the use of
amnesty (Article 79) were modified. It became necessary to have a two-third,
and no longer a simple majority of Parliamentary votes in order to approve a
law providing for amnesty. In other words, it was necessary to obtain a wide
agreement between the majority and opposition parties in Parliament in order to
grant a new amnesty.
This increase in the quorum required
to approve an amnesty law put an end to the abuse made of the instrument, so
much so that since 1992 no amnesties have been granted.
The case is more or less the same
for the "Condono" / remission of penalty, another instrument of
clemency that is under the jurisdiction of Parliament. Unlike an amnesty,
however, it does not lead to a total decision not to punish certain crimes, but
only to reduce part of the sentence. The Constitutional provisions regulating
this instrument are identical to those regulating the amnesty and, like the
amnesty, its use has been abused. It is not by chance that the above-mentioned
Constitutional reform of 1992 increased the quorum needed to approve a pardon
law to two-thirds of the members of the Chambers.
As a result, no pardons have been
granted since 1992.
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