Penitentiary order and the right to affectivity: Constitutional Court judgment no. 10/2024

The Constitutional Court, in its judgment no. 10 of 26 January 2024, declared the constitutional illegitimacy of Article 18 of Law No. 354 of 26 July 1975 - Norme sull’ordinamento penitenziario e sulla esecuzione delle misure preventive e limitative della libertà (Regulations on the prison system and on the execution of preventive and restrictive measures of liberty), insofar as it does not provide that a detained person may conduct interviews with his spouse, the party to a civil partnership or a person living with him on a stable basis, without the on-sight supervision of the custody staff, when, taking into account his behaviour in prison, there are no security reasons or requirements to maintain order and discipline, nor, with regard to the accused, judicial reasons.

In this regard, the Court stated that «The legal system protects a person’s affective relationships in the social formations in which they are expressed, recognising the freedom of subjects bound by those relationships to live fully the feeling of affection that constitutes their essence. The state of detention may affect the terms and manner of exercising this freedom, but it cannot annul it at root, with an abstract and generalised provision, insensitive to the individual conditions of the detained person and to the specific prospects of his re-entry into society».

The rule that is the subject of the declaration of unconstitutionality, in prescribing in a mandatory manner the visual control of interviews by prison staff, in fact prevents the prisoner from exercising his right to affectivity with the persons permanently attached to him, even when this is not justified by security reasons.

In this important pronouncement, the Constitutional Court therefore found a violation of Articles 3 and 27 (third paragraph) of the Constitution on account of the unreasonable compression of the dignity of the person caused by Article 18 of the Penal Ordinance and the resulting obstacle to the re-educative purpose of penal sanctions.

Recalling that most European legal systems today recognise spaces for prisoners to express their affectivity within the prison, including sexuality, the Constitutional Court also found violated Article 117, first paragraph, of the Constitution, in relation to Article 8 ECHR, because of the lack of proportionality of a radical ban on the manifestation of affectivity within prison institutions.

As regards the definition of appropriate organisational profiles related to the reflections of this important judgment, the Constitutional Court called for a «combined action of the legislature, the supervisory judiciary and the prison administration, each within their respective competences», «with any necessary gradualness».

This is in any case an important acknowledgement in support of human dignity within prison walls and which in fact also involves the issue of the consummation of marriage, by its nature connected to the exercise of the right to religious freedom.

With regard to the operational scope of Judgment no. 10/2024, the Constitutional Court in any case specified that the intervention does not involve the special detention regime provided by Article 41-bis of the Penitentiary Law, nor prisoners subject to the special surveillance provided by Article 14-bis of the same law.

Raffaele Santoro