Article 41-bis

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Article 41-bis is an article of the Italian Penal Code and the harshest prison regime there is in Italy . With regard to the measures applied, the term carcere duro (German “hard prison”) is generally used in Italy .

history

This prison regime was introduced by Law 663 of 1986. It was originally intended as a temporary solution to emergency situations (such as a prisoner riot). The normal system of detention and the rights of prisoners should be restored once the situation has normalized. The law was changed after the May 23, 1992 assassination attempt by Capaci , when Judge Giovanni Falcone and his escort were killed in a mafia bomb attack. Under Law 356 of 1992, the hard prison system could theoretically be temporary but de facto Used indefinitely on mafia prisoners with the aim of preventing the passing of orders and communication between criminals in prison and their organizations.

As early as 1995 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment assessed this prison regime as inhuman and degrading.

The European Court of Human Rights has been called on several times to rule on the compatibility of Article 41-bis with the European Convention on Human Rights , and has not viewed the discipline as in principle contrary to this Convention, but censored individual content and implementation aspects.

A US judge refused extradition of Mafia boss Rosario Gambino in 2007 because he believed Article 41-bis was similar to torture .

features

The law allows the Justice Minister to use the harsh prison regime known as "Article 41-bis" for some prisoners (even while awaiting trial) imprisoned for the Mafia and, from 2002, for terrorism or undermining democratic order . The purpose of the harsh prison regime is to prevent contacts between inmates and their criminal organizations operating outside the prison, contacts between inmates belonging to the same criminal organization inside the prison, and contacts between members of different criminal organizations in order to prevent and prevent crime to ensure safety and public order inside and outside the prison.

To achieve these goals, prisoners' normal rights are restricted as follows:

  1. Isolation of the prisoner from the other prisoners. The prisoner is in a single room and has no access to the prison common rooms. For this purpose, walking in the yard is suspended or limited to two hours a day and also takes place in solitary confinement.
  2. The prisoner is under constant 24-hour surveillance by a special department of the prison police, which in turn does not come into contact with the other prison police.
  3. Suspending or severely restricting conversations with family members. In all cases, the conversations are monitored and recorded.
    • In the event of a suspension, a monthly telephone conversation with family members can be allowed for a maximum of ten minutes.
    • In the event of a restriction, conversations are limited to a maximum of one hour per month and physical contact is prevented by a glass partition.
  4. In the case of discussions with the defense attorney, the number and duration of the discussions are not limited. These discussions were also very limited before the Constitutional Court.
  5. All outbound and inbound mail is scanned and subject to prior approval. The same rule applies to sums, goods and objects that can be kept in the overnight rooms (pens, notebooks, bottles, etc.) and also for objects that can be picked up from the outside.
  6. Exclusion of prisoners from "prisoner and prisoner representation".

Constitutionality

Article 27 of the Italian Constitution states:

The criminal liability is personal. The accused will not be found guilty until a final conviction. The punishments must not consist of treatment contrary to common sense and must aim to re-educate the convicted person. The death penalty is not allowed.

The harsh prison regime, which also applied for long periods of time to persons who had not been convicted, is considered unconstitutional by some Italian lawyers, but so far the judgments 349 ( 1993 ), 357 ( 1994 ), 351 ( 1996 ), 376 ( 1997 ) , 143 ( 2013 ) of the Constitutional Court confirmed its legitimacy by and large. The only aspects that were deemed unconstitutional were:

  1. the non-individualized application of the harsh prison regime, which was directed indiscriminately against prisoners who were selected only on the basis of their criminal title (mafiosi);
  2. the restrictions on talking to the defense attorney.

literature

  • Sergio D'Elia, Maurizio Turco: Tortura democratica, Inchiesta su “la comunità del 41bis reale” , foreword by Marco Pannella , Marsilio Editore, Venice 2002.
  • Claudio Defilippi, Debora Bosi: L'art. 41 to Ord. Pen. E le garanzie del detenuto. G. Giappichelli Editore, Turin 2007, ISBN 88-7524-104-X .
  • De Carolis Francesca (Ed.): Urla a bassa voce. Dal buio del 41bis e del fine pena may. ed. Stampa alternativa, Rome 2012.

Individual evidence

  1. ↑ Wayback Machine. June 11, 2007, accessed April 15, 2020 .