(June 26, 2020) On May 22, 2020, the Italian Supreme Court of Cassation (SCC) issued a decision declaring unconstitutional a provision imposing a radical ban on communication between incarcerated persons who, in accordance with Law No. 94 of July 15, 2009 and article 4-bis of Law No. 354 of July 26, 1975, are grouped together in prison according to the nature of their crimes and other factors. (Decision No. 97 of May 22, 2020 (Decision), Considerations of fact § 2, para. 1.)
Background of the Case
The SCC’s penal chamber reviewed a case arising from an order issued to the Penitentiary Administration Department by the Surveillance Tribunal of Perugia to approve the exchange of items between inmates from the same prison group, in particular meals from family packets and basic necessities for personal hygiene or cell cleaning. (Considerations of law § 2, paras. 2 & 5.)
The case was brought to the full SCC through a referral from the SCC’s first criminal chamber concerning article 41-bis, paragraph 2-quarter(f) of Law No. 354 of July 26, 1975 with the claim that the provision would be contrary to articles 3 and 27 of the Italian Constitution (English translation). (Considerations of fact § 1.) Article 3 of the constitution guarantees all citizens equal social dignity and equality before the law; article 27 provides that criminal responsibility is personal, defendants are considered not guilty until a final sentence has been passed, inhuman punishments are prohibited, and the aim of criminal punishments is reeducation.
The challenged provision provided for the adoption of “all necessary security measures … aimed at guaranteeing the absolute impossibility of prisoners belonging to different [prison] social groups communicating with one another or exchanging items.” (Considerations of law § 2, para. 3.) The claimant argued that security reasons did not justify the application of this prohibition to prisoners belonging to the same prison social group. (Considerations of law § 2, para. 3.) The claim also stated that the prohibition established by the challenged provision for inmates belonging to the “same social group” on exchanging items was not justified by any prison security reasons. (Considerations of fact § 2, para. 4.) The claim added that the statutory prohibition on communication admits an exception for inmates “within the same social group” on the basis that the exchange of objects would not be as essential to socialization as communication. (Considerations of fact § 2, para. 6.) In fact, the claimant argued, inmates belonging to the same prison social group communicate with each other orally all the time. (Considerations of fact § 2, para. 4.)
Therefore, the constitutional question posited before the SCC was whether the prohibition of exchanging items applied to all inmates regardless of their prison social groups. (Considerations of law § 2, para. 7.)
Reasoning of the Court
The SCC pondered whether the rationale of the challenged provision was to terminate the ongoing connections between detainees belonging to certain criminal organizations that are referred to in article 4-bis of Law No. 354 of July 26, 1975, as well as between these detainees and other members of criminal organizations outside the prison environment. (Considerations of law § 2.1, para. 1.) The SCC reasoned that the constitutional basis for deciding this question was the justifiable need to protect public security by controlling conditions within the penal community. (Considerations of law § 2.1, para. 3.)
In that context, the SCC reasoned that the ban proved constitutionally useless in preventing the formation or consolidation of criminal intent among inmates of the same prison group to persist in or expand their commission of crimes, thus contradicting the principle of the reeducational purpose of punishment guaranteed by the constitution, and imposed a limitation on the penitentiary regime that is contrary to humanitarian concerns. (Considerations of law § 2.1, paras. 5, 6.)
Additionally, the SCC found that national legislation establishing measures limiting the freedoms of inmates has recognized the need to guarantee a certain degree of “social interaction” between inmates but limit it to certain groups, for a limited time, and to a particular number of inmates. (Considerations of law § 5, para. 3.)
Holding of the Court
The SCC held that the “absolute impossibility” mentioned in the challenged provision must be considered as referring to communications between detainees belonging to different social groups. As a result, a radical ban on communications between detainees belonging to the same social group is not constitutionally required.