Sentenza n. 10 del 2024

Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has issued the following

JUDGMENT

in the judgment concerning the constitutional legitimacy of Article 18 of Law no. 354 of July 26, 1975 (Provisions on the Penitentiary System and the Execution of Custodial and Restrictive Measures of Liberty), initiated by the Surveillance Magistrate of Spoleto in the proceedings concerning the complaint filed by E. R., by order of January 12, 2023, registered under no. 5 of the 2023 ordinance register and published in the Official Gazette of the Republic no. 6, first special series, of the year 2023.

Having seen the act of constitution of E. R., as well as the act of intervention of the President of the Council of Ministers;

Having heard in the public hearing of December 5, 2023, Justice Rapporteur Stefano Petitti;

Having heard the lawyers Daniela Palma and Alessio Mazzocchi for E. R. and the State Attorney Massimo Giannuzzi for the President of the Council of Ministers;

Resolved in the council chamber of December 6, 2023.

Facts of the Case

1.– By order of January 12, 2023, registered under no. 5 of the 2023 ordinance register, the Surveillance Magistrate of Spoleto raised, with reference to Articles 2, 3, 13, first and fourth paragraphs, 27, third paragraph, 29, 30, 31, 32 and 117, first paragraph, of the Constitution, the latter in relation to Articles 3 and 8 of the European Convention on Human Rights, questions of constitutional legitimacy of Article 18 of Law no. 354 of July 26, 1975 (Provisions on the penitentiary system and the execution of custodial and restrictive measures of liberty), "in the part where it does not provide that a detained person be allowed, when there are no security reasons, to conduct intimate conversations, including those of a sexual nature, with the non-detained cohabitant, without being imposed visual surveillance by the custodial staff”.

The referring court states that it must rule on the complaint ex Article 35-bis penitentiary order submitted by E. R., who, detained at the Terni District Prison, complains about the prohibition imposed on him by the administration regarding the conduct of intimate and private conversations with his partner and young daughter.

The interested party argues – as reported by the order of reference – that, "even in the absence of leave permits provided in his favor, an intimate conversation constitutes the only means to exercise his right, a right he considers fundamental, to a serene relationship and to fully ensure his parental role”.

1.1.– The referring judge informs that E. R. has been detained since July 2019, in relation to a cumulative sentence for attempted murder, aggravated theft, evasion, and more, with an end-of-sentence date set for April 2026; he adds that the convicted person, transferred to the Terni institution in March 2022, does not yet have a treatment program, nor will he likely enjoy leave permits, both due to the absence of a program that provides for them and due to the imposition, also recent, of disciplinary sanctions.

The referring court illustrates what emerged from the dialogue with the management of the Terni District Prison, that is, while areas dedicated to meetings of detainees with minor children have been set up there, there are no private spaces for conversations with partners, given that, on the other hand, continuous surveillance of them, through visual control by custodial staff, is prescribed by Article 18 penitentiary order.

1.2.– The Surveillance Magistrate of Spoleto believes that visual control over conversations with the partner implies for the detainee "a real prohibition to exercise affection in a private dimension, and specifically sexuality”.

The referring court, therefore, considers the raised issues relevant, given that, based on the current legal framework, nothing could be imputed to the penitentiary administration, and the detainee's complaint should therefore be rejected.

1.3.– The order of reference evokes the precedent referred to in this Court's Judgment no. 301 of 2012, indicating the reasons why the same issues, then declared inadmissible, could have an outcome of acceptance today.

Regarding the safeguarding of the detainee's relationships with the de facto cohabitant, the referring court mentions the supervening Article 1, paragraph 38, of Law no. 76 of May 20, 2016 (Regulation of civil unions between persons of the same sex and discipline of cohabitation), which has equated the rights of the cohabitant to those of the spouse in the cases provided for by the penitentiary system; the referring judge also mentions Article 2-quinquies of Decree-Law no. 28 of April 30, 2020 (Urgent measures for the functionality of conversation and communication interception systems, further urgent measures regarding the penitentiary system, as well as supplementary and coordination provisions in civil, administrative and accounting justice and urgent measures for the introduction of the Covid-19 alert system), converted, with amendments, into Law no. 70 of June 25, 2020, on telephone correspondence of the detainee with persons linked to him by a stable emotional relationship.

1.4.– In the opinion of the referring court, the issues could not be overcome by resorting to leave permits, as the exercise of a fundamental right cannot be conditioned on the requirements of premiality.

Nor could the institution of leave for family reasons of particular seriousness, contemplated by Article 30 penitentiary order for very stringent cases, which does not include matters related to the sphere of sexuality, be invoked.

1.5.– The prohibition of intimate conversations between the detainee and the partner would infringe on the "[the former’s] right to the free expression of his affection, also through sexual relations, as an inviolable right recognized and guaranteed, according to the provisions of Article 2 of the Constitution".

Article 13, first paragraph, of the Constitution, would also be violated because "[t]he forced abstinence from sexual relations with relatives in freedom” would integrate an additional compression of personal liberty, unjustified in this specific case, as it involves a convicted person restricted under a medium security regime.

Article 13 of the Constitution would also be violated in the fourth paragraph, since the prohibition of satisfying normal sexuality would result in physical and moral violence on the person subjected to restriction of liberty, moreover with a negative impact on any project of new parenthood.

It would also result in a vulnus to the serenity and stability of the family, protected by Articles 29, 30 and 31 of the Constitution, as well as harm to the psychophysical health of the detainee, guaranteed by Article 32 of the Constitution.

Furthermore, a penalty that would lead, "through the subtraction of a significant portion of free availability of one's own body and of one's own expression of affection, to a regression of the detainee towards a infantilizing dimension," would be contrary to the sense of humanity and unsuitable for the re-educational purpose, thus violating Article 27, third paragraph, of the Constitution.

1.6.– Article 3 of the Constitution would be violated in terms of reasonableness, as the prohibition of intimate meetings would be absolute and indiscriminate, not related to particular security needs, also in contrast with the general direction of Legislative Decree no. 123 of October 2, 2018, containing the "Reform of the penitentiary system, in implementation of the delegation referred to in Article 1, paragraphs 82, 83 and 85, letters a), d), i), l), m), o), r), t) and u), of Law no. 103 of June 23, 2017", whose Article 11, paragraph 1, letter g), number 3), intervening precisely on Article 18 penitentiary order, has established that the premises intended for conversations with family members favor, where possible, a private dimension of the meeting.

There would then be an unjustified disparity in treatment with respect to juvenile institutions, for which Article 19, paragraph 4, of Legislative Decree no. 121 of October 2, 2018, containing the "Discipline of the execution of sentences against convicted minors, in implementation of the delegation referred to in Article 1, paragraphs 82, 83 and 85, letter p), of Law no. 103 of June 23, 2017", has provided for the reproduction of domestic-type environments where extended visits can take place to protect affection.

1.7.– Through the reference to Article 117, first paragraph, of the Constitution, the referring court finally denounces the violation of Articles 3 and 8 of the ECHR, since the coercive deprivation of affection would result in inhuman and degrading treatment, at the same time violating the detainee's right to respect for his private and family life.

This would also happen in cases – such as the one in question – in which there are no security reasons that justify a prohibition, in application of the margin of discretion recognized by the jurisprudence of the European Court of Human Rights to the national legislator.

1.8.– The referring judge recalls that the aforementioned judgment no. 301 of 2012 had indicated the problem of the detainees' affection as worthy of every attention by the legislator, which has remained inert in this regard.

2.– The President of the Council of Ministers, represented and defended by the State Attorney General's Office, intervened in the proceedings, asking that the issues be declared inadmissible, "for having as their object a legislative provision relating to a matter reserved for the discretion of the legislator”.

The State defense also recalls judgment no. 301 of 2012, arguing the persistence of the reasons that led this Court to declare inadmissible questions similar to today's.

In particular, the intervening party emphasizes that the specificity of the execution of the custodial sentence against minors makes the relative discipline unsuitable to identify a constitutionally obligatory solution to be extended to adult detainees.

3.– E. R. has been constituted in the proceedings, asking for the acceptance of the issues.

In fully sharing the arguments put forward by the referring court, the party indicates in support this Court's Judgment no. 26 of 1999, on judicial protection against acts of the penitentiary administration that are harmful to the fundamental rights of detainees, as well as the recommendations of supranational organizations that encourage the recognition of the right of those restricted to a complete emotional life.

The act of constitution signals the adoption of some experimental practices oriented towards respecting the intimacy of the detainee, such as the "rooms of affection” set up in the Milanese Opera prison.

Also in light of the protracted legislative inertia following the repeatedly cited Judgment no. 301 of 2012, the party hopes for an additive pronouncement, the implementation of which could be ensured by the surveillance magistrate, compatibly with the conditions of the individual prison structure.

4.– The Antigone association, active in the promotion of rights and guarantees in the criminal and penitentiary system, has submitted a written opinion as amicus curiae.

The opinion – admitted by presidential decree of October 19, 2023 – observes that the detainee’s right to sexuality is sacrificed in an indiscriminate way, without any margin for concrete appreciation by the surveillance magistrate.

It also emphasizes that the exercise of a fundamental right of the person cannot be entrusted to the premium logic of permits, which are also used by a modest portion of the prison population.

The association argues that the legislator has not heeded the warning of Judgment no. 301 of 2012, having intervened with exclusive reference to juvenile institutions, without addressing the general problem, instead regulated by other European legal systems and the subject of numerous supranational recommendations.

5.– In the public hearing, the State defense responded to some questions formulated pursuant to Article 10, paragraph 3, of the Supplementary Rules for proceedings before the Constitutional Court and then insisted, like the defense of E. R., on the already presented conclusions.

Legal Considerations

1.– By the order indicated in the epigraph (reg. ord. no. 5 of 2023), the Surveillance Magistrate of Spoleto raised, with reference to Articles 2, 3, 13, first and fourth paragraphs, 27, third paragraph, 29, 30, 31, 32 and 117, first paragraph, of the Constitution, the latter in relation to Articles 3 and 8 of the ECHR, questions of constitutional legitimacy of Article 18 penitentiary order, "in the part where it does not provide that a detained person be allowed, when there are no security reasons, to conduct intimate conversations, including those of a sexual nature, with the non-detained cohabitant, without being imposed visual surveillance by the custodial staff”.

1.1.– The order states that the main judgment concerns the complaint filed by the detainee E. R. against the denial opposed to him by the management of the Terni District Prison – where he is restricted in execution of sentence until April 2026 – regarding the conduct of intimate and private conversations with his partner and young daughter.

Assuming that the claimant will not likely be able to take advantage of leave permits, both because he does not currently have a treatment program and because he has been subjected to disciplinary sanctions, the referring judge denounces that the detainee would thus be prevented from cultivating his emotional relationship with his partner in intimate conditions, due to the prescription of visual control by the custodial staff, which is irrevocably ordered by the contested rule as a modality for conducting conversations.

1.2.– The Surveillance Magistrate of Spoleto believes that such a prescription implies "a real prohibition of exercising affection in a private dimension, and specifically sexuality,” which would entail a violation of the evoked parameters.

First of all, a fundamental right of the person would be infringed, guaranteed by Article 2 of the Constitution, namely the right to the free expression of affection, also in its sexual component.

Article 3 of the Constitution would also be violated, under a twofold profile, that of reasonableness, for having the prohibition of intimacy in family meetings absolute character, and that of equality of treatment with respect to juvenile penitentiary institutions, within which Article 19 of Legislative Decree no. 121 of 2018 has allowed extended visits to take place to protect affection.

The "forced abstinence from sexual relations with relatives in freedom” would then determine an additional compression of the detainee's personal liberty, unjustified if there are no particular custody needs, as well as a physical and moral violence on the person of the restricted, thus highlighting a violation of the first and fourth paragraphs of Article 13 of the Constitution.

A penalty characterized by "the subtraction of a significant portion of the free availability of one’s own body and of one’s own expression of affection” would also be contrary to the sense of humanity and incapable of fulfilling the re-educational function, with consequent violation of Article 27, third paragraph, of the Constitution.

The impossibility of fully cultivating emotional relationships could also negatively affect the continuity and strength of the detainee's family ties, protected by Articles 29, 30 and 31 of the Constitution, and also compromise his psychophysical health, guaranteed by Article 32 of the Constitution.

It would result in the distortion of the penalty into an inhuman and degrading treatment, harmful to the detainee's right to respect for his private and family life, and therefore, finally, Article 117, first paragraph, of the Constitution, in relation to Articles 3 and 8 of the ECHR, would be violated.

2.– Having intervened in the proceedings through the State Attorney General's Office, the President of the Council of Ministers has asked that the issues be declared inadmissible, "for having as their object a legislative provision relating to a matter reserved for the discretion of the legislator”.

In particular, the State defense believes that the reasons expressed by this Court in Judgment no. 301 of 2012, which declared inadmissible questions similar to today's, are still insurmountable.

This judgment is also evoked by the referring court, by the party, and by the amicus curiae, in the different perspective of the monitoring value that they associate with the same pronouncement.

The State exception is unfounded.

2.1.– With the aforementioned judgment, this Court declared inadmissible questions of constitutional legitimacy relating to the same provision now censured again, that is, the prescription of visual control over conversations ex Article 18 penitentiary order.

Apart from some differences in the evocation of parameters (above all, conventional parameters were not then deduced), the issues had an object that substantially coincided with today's, as they also identified the visual control of the custodial staff as an insurmountable obstacle to the exercise of the detainee's affection in the necessary conditions of privacy.

In addition to reasons related to the incomplete description of the specific case (the referring court not having specified the content of the complaint submitted to its judgment, nor the prison regime applied to the claimant, nor the availability of leave permits), the inadmissibility was motivated by arguing that "the elimination of visual control would not be enough, in itself, to achieve the pursued objective, necessarily having to access a discipline that establishes terms and modalities of expression of the right in question: in particular, it would be necessary to identify the relative recipients, internal and external, define the behavioral prerequisites for the granting of "intimate visits”, fix their number and duration, determine the organizational measures”; operations which – the judgment continued – "obviously imply discretionary choices, of exclusive competence of the legislator: and this also in the face of the unavoidable need to balance the evoked right with opposing needs, in particular with those related to order and security in prisons and, amplius, to public order and security”.

This Court did not even consider it possible to issue a declaratory judgment of principle, as it itself would have resulted "expressive of a fundamental choice” on the issue of the selection of persons entitled to private visits.

"In the perspective of the referring judge” – the Court stated – "the "right to sexuality” intra moenia should be [in fact] recognized only to detainees who are married or who have stable cohabitation relationships more uxorio, excluding the others (for example, those who, upon entering prison, have a "consolidated” emotional relationship, but not yet accompanied by cohabitation, or by a "stable” cohabitation), a solution that did not appear constitutionally obligatory.

2.2.– Despite the reasons for the inadmissibility of the issues, Judgment no. 301 of 2012 did not fail to emphasize how they evoked "a real and strongly felt need, such as that of allowing persons subjected to restriction of personal liberty to continue to have intimate emotional relationships, also of a sexual nature”, a need that – it was specified – does not find an adequate response in the institution of leave permits, "the use of which – given the relevant subjective and objective conditions – remains in fact precluded to a large part of the prison population”.

Considering the inadequacy of the instruments of positive law, as well as the trends that have manifested themselves at the supranational and comparative level, this Court considered it appropriate to point out to the legislator that the issue of intramural affection of the detainee represented "a problem that deserves every attention”.

2.3.– In the time since the publication of Judgment no. 301 of 2012, the penitentiary system has registered significant innovations, which today delineate a regulatory framework very different from that of the time.

In particular, a specific indication has emerged regarding the qualified relationships of the detained person, worthy and in need of differentiated consideration also "within the walls”, therefore precisely on the particular aspect that had led this Court to consider impracticable the adoption of an additive judgment of principle.

In this sense, Article 1, paragraph 38, of Law no. 76 of 2016 has provided, according to which "[d]e facto cohabitants have the same rights as the spouse in the cases provided for by the penitentiary system”, a provision that the Court of Cassation has clarified to refer "to the need to protect the direct interpersonal relationship” (first criminal section, judgment 14 September 2021-10 February 2022, no. 4641).

Pursuant to paragraph 20 of Article 1 of the same Law no. 76 of 2016, the rights of the spouse in terms of penitentiary conversations are also extended to the party of the civil union between persons of the same sex.

On the other hand, the same provision that is now censured again in the part concerning the irrevocability of visual control has been medio tempore enriched with a privileged reference to the privacy of conversations between detainees and family members, through the insertion, by Article 11, paragraph 1, letter g), number 3), of Legislative Decree no. 123 of 2018, of an additional period in the second paragraph (which has become the third paragraph) of Article 18 penitentiary order, pursuant to which "[t]he premises intended for conversations with family members favor, where possible, a private dimension of the conversation and are preferably located near the entrance of the institution”.

Also, what was provided for juvenile institutions by Article 19, paragraph 3, of Legislative Decree no. 121 of 2018 ("[i]n order to foster affective relationships, the detainee can take advantage each month of four extended visits lasting no less than four hours and no more than six hours”) is still emblematic of a strongly innovated regulatory context compared to that in which Judgment no. 301 of 2012 was pronounced.

2.4.– For adult detainees, the legislator, exercising the overall delegation referred to in Article 1, paragraph 82, of Law no. 103 of June 23, 2017 (Amendments to the penal code, the code of criminal procedure and the penitentiary system), has not followed up on the guiding criterion stated by letter n) of the subsequent paragraph 85 ("recognition of the right to affection of detained and interned persons and regulation of the general conditions for its exercise”).

This choice of the delegated legislator has left the previous gap open, but in a general context that was already significantly changed at that time.

2.5.– Ultimately, since the regulatory framework is now different from that which was the basis of this Court's previous judgment, the State exception of inadmissibility of the new issues must be rejected.

2.6.– On the other hand, the order of reference under consideration cannot be imputed a defect in the omitted description of the factual situation as that noted at the time, considering that the detention status of E. R. is adequately illustrated there, also from the point of view of the possibility of access to leave permits.

2.6.1.– The Surveillance Magistrate of Spoleto assumes that the issue of the detainee’s affection cannot be resolved through the institution of leave permits, as it would be improper to subordinate the exercise of a fundamental right to a logic of premiality.

The amicus curiae, on the other hand, emphasizes that a modest portion of the audience of detainees accede to leave permits.

In the repeatedly recalled Judgment no. 301 of 2012, this Court observed that this institution can offer here "only a partial answer”, since the use of the leave permit – "given the relevant subjective and objective conditions – remains in fact precluded to a large part of the prison population”.

2.6.2.– Pursuant to Article 30-ter penitentiary order, the granting of the leave permit