1,721,032 research outputs found
Salute e dignità umana in carcere. Orientamenti bioetici
No full textParlare di dignità dell’essere umano e della sua fragilità mi spinge ad analizzare la questione del sistema delle misure di sicurezza personali e, nello specifico, di quelle detentive da eseguirsi da parte degli autori di reato con patologia psichiatrica all’interno delle Rems (Residenze per l’esecuzione delle misure di sicurezza).
Il meccanismo del ricovero presso le Rems, adottato per “risocializzare” i condannati ritenuti socialmente pericolosi, è affetto da gravi inefficienze e presenta dei profili di incostituzionalità tali da precludere la piena tutela della loro salute mentale.
Stiamo assistendo, infatti, ad una moltiplicazione di cause di merito decise dalla Corte Edu in cui lo Stato italiano viene condannato per avere omesso di «organizzare il proprio sistema penitenziario in modo da assicurare ai detenuti il rispetto della loro dignità umana», perché anche dopo essere a conoscenza dell’insufficienza dei posti letto all’interno delle Rems , non si è adoprato per trovare soluzioni alternative che sopperissero a tali carenze, ma soprattutto che tutelassero i diritti delle persone inferme di mente che hanno presentato ricorso
L’emergenza pandemica e la rivolta carceraria in Italia: alcune questioni penitenziarie ancora aperte
No full textThe pandemic emergency, which has inevitably involved penitentiary institutions, has frightened prisoners not only because of the greater contagiousness of the virus in closed places such as prisons, but also in the face
of the flood of restrictive prescriptions dictated by the Prime Minister’s
decrees. These decrees have effectively compressed the right of inmates to
affectivity and communication. There has been an emergency within the
emergency in 21 penitentiary institutions where protests, looting and evasions have been carried out. This is a useful starting point to address some of
the unresolved issues that Covid-19 has removed the veil from
Lo spessore criminale delle detenute
No full textLo spessore criminale delle detenute sembra essere assai esiguo se comparato ai grandi numeri della popolazione carceraria maschile che rappresenta più del 95% del totale. Una giustizia che assuma un volto umano non può prescindere da questa minoranza penitenziaria, perché come aveva sostenuto il cardinale Martini, deve essere prima di tutto riparativa, ovvero in cui la pena, come stabilito dall’art. 27 Cost., non deve mai essere contraria al senso di umanità. Le donne, invece, da troppo tempo hanno subito una doppia pena legata allo stato di restrizione a causa della devianza sociale o criminale e dall’intento di purificazione. Il nostro ordinamento penitenziario, anziché tutelare la “donna in quanto donna”, si è limitato a disciplinare la maternità in carcere con alcune leggi fondamentali come la l. 8 marzo 2001, n. 40 e l. 21 aprile 2011, n. 62, che hanno modulato la detenzione domiciliare ordinaria e speciale delle madri, per meglio ampliare le possibilità di tutela del loro rapporto con i figli. Il principio umanitario ha ispirato anche la Consulta che ha riconosciuto la concessione della detenzione domiciliare alle madri per la tutela dei figli a prescindere dalla loro età, perché portatori di handicap totalmente invalidanti (sent. Corte cost. n. 350 del 2003) al fine di garantire loro la continuità delle relazioni familiari. Questa giurisprudenza costituzionale è stata recentemente integrata dalla pronuncia 18/2020, che ha affrontato la complessa questione delle madri detenute, colpevoli di reati connessi a quelli ostativi e caregivers di figli gravemente disabili.
I tempi sembrano maturi per sviluppare politiche sensibili alle questioni di genere e per adottare misure concrete per fare fronte alle specifiche necessità delle donne detenute. Il riconoscimento della diversità di genere va al di là delle specifiche disposizioni legate alla gestazione e maternità in carcere. Occorre, infatti, individuare i diritti fondamentali come l’istruzione e il diritto alla salute che per troppo tempo sono stati ancillari ad un modello maschile carcerario. Sarebbe necessario approfittare della crisi pandemica da Covid-19 per ripensare il carcere, magari separando il modello maschile di Justice Model, orientato in senso retributivo in una logica garantista, da quello femminile, ispirato al Care Model, ovvero all’etica della responsabilità. Il decisore politico potrebbe dimostrare di prendere in seria considerazione la questione delle donne carcerate, incominciando dall’abolizione delle sezioni femminili all’interno degli istituti di pena maschili, attuando cioè una politica volta a rendere il carcere meno disumano
Dagli OPG alle REMS: la lunga navigazione della “Stultifera Navis” che, in attesa dei decreti di attuazione della l. del 23 giugno 2017, n. 103, sta per giungere all'approdo
No full textThe ECHR defending ethical and political right of prisoners, sanctio- ned Italy for violating the rights of persons in detention. The Torreggiani ruling, could have been extended also to the psychiatric internees who are forced to live in degradation and in conditions that are nothing but abominable. The expiry of the sentence coincided (coincidentally?) with the approval of the law of 30 May 2014, n. 81, aimed at dismantling the OPG and drastically reducing the number of inmates. This paper aims to provide some reflections on the implementation of this important reform
La residenzialità ultra light e la frammentaria politica regionale residenziale italiana
Full text linktaly pioneered deinstitutionalization 4O years ago, with the famous Law Number 180 in 1978. The mental health reform law abolished the psy- chiatric hospitals and gave back to people with mental issues the full right to citizenship. Mental health policies in Italy in the last four de- cades promoted the growth of community residential settings for people with mental disorders and aimed both at taking care of the suffering and promoting the recovery (balancing a better state of health and integra- tion without discrimination). Several residential solutions characterize the mental health systems with different levels of support and a variety of functions. Among the numerous solutions, supported housing could be defined as ultra-light. Supported housing allows people with mental health problems to relate but at the same time to undergo a light, more economical and more effective therapeutic and rehabilitative control. The drawback of the supported housing system is the local disparities: while virtuous regions have fully implemented not only national but also supranational norms regarding included society, instead in the unvirtuo- us regions families still support the full weight of assistance
The ecological transition: an impossible challenge or a great opportunity for environmental sustainability?
No full textDuring the Covid-19 health crisis, the world's population realized how close the continents, states, and people who make up the much larger global community are and how fragile they were as the pandemic rapidly unfolded. As prisoners in our own homes, we witnessed the impressive spectacle of Nature reclaiming her own space, which had been man-made for too long. The theme of ecological transition, which has come to the forefront of public attention over the last decade, has finally become a priority objective in the 2019-2024 period of the European Green New Deal. Following the pandemic emergency - thanks in particular to the President of the European Commission, Ursula von Der Leyen, the green transition has regained new impetus through the Next Generation EU recovery plan (1/3 of the EUR 1,800 billion investment) and by raising substantial funding from the EU's seven-year budget. Analyzing the Next Generation EU package, one can see that the most important instrument for the economic recovery of individual countries is the Recovery and resilience facility, commonly referred to as the Recovery fund and consequently the Recovery bonds. This is a European recovery and resilience plan intended to shake up the economies of Member States, such as Italy, that the economic crisis, triggered by Covid-19, hard hit. The resources available from the European Fund that concern ecological transition are very substantial compared to the other objectives, but the essential condition for ensuring that European countries receive European funds - in the form of low-interest loans and grants - is the presentation of well-designed projects that are aimed at contributing to ecological transition. The PNRR (National Recovery and Resilience Plan), finally approved by a Council Implementing Decision implementing the European Commission's proposal, enabled Italy to receive EUR 24.9 billion in pre-financing or 13% of the total amount. Following a Europe-wide survey on the priority actions to be taken by the European Parliament, climate change was ranked first (43%).
At this point, European recovery funds could be an indispensable tool for ensuring that governments apply the rule of law and democratic principles, as they could be withheld from the Member States that do not uphold the rule of law or that violate the democratic values on which democratic states are founded.
Within this global framework, there was a strong need to quickly innovate the law to address sustainability within the different Member States. After environmental law had long been considered incapable of halting the degradation of the planet and protecting the health of citizens, its foundations were reconsidered. It is thanks to the impetus of associations such as ELGA (Ecological Law And Governance), which came into being following the approval of the Oslo Manifesto, drafted in 2016 within the framework of the Academy of Environmental Law of the UCN (International Union for Conservation of Nature), that new ecological constitutionalism has been achieved. In the new environmental perspective, from this valuable laboratory, capable of selecting virtuous case studies and creating new legal models of ecological protection and territorial governance, emerging best practices in different world areas were rapidly disseminated. In particular, some recent proposals for change have been based no longer on an anthropocentric vision but on an ecocentric one (deep ecology), i.e., placing ecological integrity at the heart of law in place of human domination over Nature. Following the achievement of the indicators for monitoring the Sustainable Development Goals (SDGs) of the 2030 Agenda, the principle of responsibility towards Nature must be pursued by the new legal norms and environmental governance. This is the result of historical achievements in terms of international environmental rights, achieved since the Stockholm Declaration of 1972, which incorporated the international principle of the connection between environment and economic development, but also with the Rio de Janeiro Conference of 1992, which was established in Article 1 that "human beings are at the center of the issues of sustainable development. They have the right to a healthy and productive life in harmony with nature". The implementation of this international provision is entrusted to the public authorities and the social components. In addition to cooperation between States, it is up to citizens to use instruments of direct participation and use instruments of claim before the Courts. This contribution intends to consider the new earth jurisprudence and constitutional provisions related to Mother Earth's rights. As in the case of the Constitutions of some Latin American States such as Ecuador (2008) and Bolivia (2009), refer to the cosmo-vision of the Andean peoples. The legal prominence assigned to the earth's rights in Latin legal systems may constitute new models of ecologically sustainable development within the European perimeter
Il delicato bilanciamento tra esigenze securitarie relative alle donne autrici di reati ostativi e la tutela della salute psichico-fisica dei bambini ultradecenni portatori di handicap totalmente invalidanti
No full textSeveral studies have shown that juvenile offenders’ children may risk developing more psychopathologies with externalising and internalising symptoms, school difficulties or dropouts (Murray and Farrington, 2008). To overcome these difficulties, the current legal framework in Italy offers a wide protection of prisoners’ parenting, which has recently been completed by the Supreme Judge of Laws. The ruling of the Constitutional Court no. 18/2020 is linked to ruling no. 350 of 2003, which provided for the application of the measure of home detention to cases where the child under the age of 10 was “totally disabling handicapped”, even to children over 10 years of age and in cases where the crimes attributed to parental figures were of an “ostativa” nature, taking a further important step to protect the rights of children of detainees and the parental relationship. It should be noted that the judge who drafted this judgment, who later became President of the
Constitutional Court, Marta Cartabia, said in reference to this ruling that mild law was applied, in other words, a new concept of justice and punishment was created, useful as a model for future jurists but also psychologists
The digital Resurgence of prisons
No full textThe aim of my research is first of all to analyze the importance within the prison reality of the right to affectivity and sexuality of prisoners, to be understood as a set of human and personal relationships intertwined with external figures, family members but also educators, psychologists, religious and school and university teachers. The meeting place between inmates and society can be the prison, but also the extra-murricular environment, since this possibility of exchange with the outside world is guaranteed through the important institutes of interviews with family members (art. 18, Op.) and prize permits (art. 30, ter Op.) in order to cultivate effective, cultural or work interests. The institutes are only a partial response to the need for prisoners to continue to have affective relationships, including sexual relationships, which are only used by a limited number of convicts. For the rest, there is a great legislative silence on the question of prison affectivity, which satisfies the demand for harsher sentences by criminal populism. This issue intersects with the right to information and communication in prison or access to the Internet because it is a useful tool for fulfilling the re-educational function of the penalty. It is a cross-border issue which includes supranational systems and the case law of the Strasbourg Court and is linked to the prohibition of inhuman and degrading treatment. The right to access the Internet, if it is not a fundamental right of the person, necessarily relates to the re-educational penalty and treatment in accordance with human dignity. Restrictions on access are not placed on persons as prisoners but would be necessary to avoid bad use of the Internet. From the judgment Kalda v. Estonia, Second Chamber, 19 January 2016 (Rec. 17429/10), there is no real right for prisoners to access the Internet, but rather it is "perceived" as a right composed of restrictions placed on the prisoner, on access to some sites, rather than others, to carry out regulatory research. The feeble justification in support of the Internet has taken into account limitations due to security reasons, but from a purely securitarian point of view, even reading a paper newspaper could jeopardise the internal security of the prison. At the legislative level, the first circular of the Department of Prison Administration implementing the principle of information and communication which introduced innovations on the use of personal computers in prisons was GDap 0366755 of 2.11.2015, entitled "Possibility of Internet access by prisoners". The limitations introduced are so specific that in order to ensure "the whole" prison population a plan to expand the use of Skype and telephone calls, to meet the need for all prisoners to have the right to be constantly informed about the state of health of their loved ones, we will have to wait for the Covid-19 pandemic. In summary, one can see a watermarked right to access the Internet, even though this right is very relative and subject to numerous limitations. With the spread of Covid-19, the precautionary suspension of interviews with family members, premium permits and the semi-freedom regime, which was followed by the interruption of school and university activities within prisons, risked, in a situation of health and social emergency, to further aggravate the precariousness of the Italian prison system. Fear of contagion, associated with miscommunication - which tended to present the measures that were about to be adopted as totally preclusive of any possibility of contact with the outside world or continuation of the paths taken -, has acted as a detonator within the prison population, causing protests and in some institutions even deaths. After calming the riots and calming the souls of the inmates, who in fact felt totally segregated, an attempt was made to maintain valuable contacts with family members and to provide a continuity of education through the increase in telephone contacts and the use of video calls. With the health emergency, the same positive actions aimed at ensuring the education of prisoners must be supported by technology, the necessary equipment, technical staff trained in new technologies and a budget dedicated to the purchase of the most suitable tools.
While the inadequacy of the IT infrastructure to cover the vast prison world has been demonstrated, efforts must be made to prevent virtual teaching from coming into conflict with video calls, as it has only recently become an indispensable and auxiliary tool for talks between prisoners and their families via Skype. The right to education is inevitably subordinate to the right to affectivity, so the necessary way must be sought to combine the two rights linked to the restricted rather than making them optional. The second decision of the Court of Strasbourg, Jankovskis v. Lithuania, Fourth Chamber, 17 January 2017 (Rec. 21575/08), unlike the case cited above Kalda, does not refer to re-education but to prison education. The crux of the matter is not so much access to the Internet as the right to information and university education. The Court, as in the previous case, recognizes that the Internet must increasingly be understood as a right and States must commit themselves to public policies aimed at achieving universal access through the Internet. The pandemic has made it possible to show the importance of distance learning as a means of supporting, if not even replacing traditional distance learning in person. This was done with a view to providing an on-demand service, i.e. creating personalised routes for the individual prisoner. When the emergency phase will end, it will be essential to preserve if not enhance the technological tools to maintain emotional contacts with distant relatives, increasing telephone interviews, making them daily rather than weekly and enhancing them, where possible, with interviews via Skype. The target audience will undoubtedly have to be made up of all prisoners, regardless of the title of the crime or the circuit to which they belong in order to access specific sites. The recognition of the Internet as a right may subsequently be restricted in the face of certain offences, but this is diametrically opposed to the ban on all access to the Internet. The difficulty or even in many cases the impossibility of access lies in the inertia of the legislator. As a result of the coronavirus, it will be essential to take advantage of the spread of the IT tool to implement the treatment possibilities already provided for in our system, such as the study or professionalization of the work of prisoners
WELFARE AND MARKET: A SOCIAL, ECONOMIC AND LEGAL ANALYSIS
Full text linkSocial inclusion is a human right for all people, and it should take into consideration also people that manifest a severe psychiatric illness while incarcerated (rei folli).
The United Nations Human Rights Committee has sustained the “positive obligation” of states to protect the rights of those whose vulnerability arises from their status, as prisoners deprived of their liberty. The recent constitutional court ruling No. 99 in 2019 goes in this direction. The recent court ruling maintains that some inmates with mental problems may best serve their court ruling outside the prison (e.g., mandatory postponement, optional deferment, home detention, assistance or residential facilities). Prison, for some inmates, can be a cause of severe pathologies and is now recognized as a possible detriment to mental health.
The overcoming of the prejudicial wave that stigmatizes the recluse has taken place thanks to the Italian Constitutional Court through a process that has involved the NBC (National Bioethics Council), but above all the CEDU (European Court of Human Rights) that has focused and fined Italy, on the issue of prisons.
The new penitentiary European system promotes the extramural execution of penalties. The European penitentiary policies are inspired partially by the Italian penitentiary, which has been modified thanks to two significant legislative changes, taken as a model by the WHO: the 1978 Basaglia reform (opening of asylums) and the Law No. 81 of 2014 (closing of the Forensic Psychiatric Hospitals (OPG)).
With the Basaglia reform mental patients were freed from the mental hospitals and after Law No. 81, no citizen, male or female, has been sent in custody as a security measure to the OPG but in residences meant for the execution of security measures (REMS).
To this path of inclusion of the mentally weaker, we must add the recent Constitutional Court Ruling No. 99 in 2019, the focus of this article, which has recognized the prison as a pathogen factor and allowed some inmates, with severe mental problems to serve their court ruling outside the prison and not inside the health units in the same prison.
Thus, with this critical ruling, the judge has equated the physical pathology of prisoners with the mental pathology of prisoners. The sentence has effects not only for the insane offenders but also for having thrown light on the penitentiary institution until now considered a “Sancta Sanctorum” of the Italian penal system.
The ruling is essential for the same recognition of health issues and mental illnesses. Mental issues of inmates were once neglected by the judiciary or used to reinforce security measures and contain social danger. This ruling is innovative also for having conceived the prison as an inappropriate place for inmates who have been diagnosed with a severe mental illness during detention. Imprisoning people with serious mental issues violates not only Art. 27 of the Constitution, but also the supreme and fundamental Art. 3 of the Convention on Human Rights.
This last constitutional ruling confirms that the Constitutional Court has taken into consideration the previous decisions of the European Court of Human Rights (ECHR) on the respect of the absolute prohibition of torture or inhuman or degrading treatment (ECHR, second section, sentence 17 November 2015, Bamouhammad against Belgium, paragraph 119; ECHR, Grand Chamber, the judgment of April 26, 2016, Murray v. Netherlands, paragraph 105; ECHR, the judgment of July 16, 2009, Ric. No. 22635/03, Sulejmanovic v. Italy; ECHR, the judgment of January 8, 2013, Ric. No. 43517/09, Torreggiani and Others v. Italy).
The recent Constitutional Court Ruling No. 99 in 2019 affirms that in the event of a violation, it is mandatory for “the jurisdictional authority to provide for the interruption of imprisonment”,
* Confirmed Researcher of Public Law, Faculty of Political Sciences, University Federico II of Naples, Italy; Adjunct Professor of Institutions of Public Law and Regional Law, Professor of Public Law, PUP (Prison University Project), Secondigliano, Italy
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remembering that the scope of the prohibition according to art. Three of the Convention on Human Rights must be extended to the entire prison system, including the prison psychiatric department because even in this place “degrading treatment could be practiced when the therapies are not appropriate, and the detention is prolonged for a significant period of time”.
The long wave against prejudice also affects the Italian prison system, including the automatisms (absence of collaboration) that were deemed unacceptable because they precluded access to benefits (Art. 85, paragraph e) of the Law No. 103 of 2017 (Changes to the Criminal Code, the Criminal Procedure Code, and the Penitentiary System).
The ruling of the EDU Court in the case of Marcello Viola v. Italy (No. 2), Ric. No. 77633/16, the sentence of June 13, 2019, condemned Italy for violating the Art. 3 Human Rights Convention, or the right of the prisoner to life imprisonment to not be subjected to inhuman and degrading treatment, and therefore, to enjoy discounts of penalty or benefit.
Thanks to this last ECHR decision, the Italian legislator must modify the prison regulations accordingly and align several penitentiary institutions (e.g., the special detention regime) to the international human rights standards. The ECHR maintains that inmates should enjoy all the rights internationally recognized as fundamental, from the Universal Declaration of Human Rights (1948) and subsequently from the two international covenants, on civil and political rights, and economic, social and cultural rights (implemented in 1976). European penitentiary policies, however, are modifying the rigid system of security measures – at the moment without affecting the granite Criminal Code Rocco – with rapidity and effectiveness.
However, in Italy, the path to the recognition of human, political and civil rights to inmates is still long and tortuous since it can only be reached through the revision of “double track” of the Criminal Code of 1930 (the articles of the Rocco Code are still in force).
The recent Italian Constitutional Court Ruling No. 99 was a big step in the direction of recognition of human rights of prisoners; however, Italy in this period is going through the rising tide of penal populism that strongly affects the legislator. Concrete examples of the recent change in the cultural climate on security can be found in the decree-law on the subject of public order and security (Decree-Law No. 53 of June 2019); starting from the changes to the penal code and other provisions on the matter of legitimate defense (Law No. 36 of April 26, 2019); the decree on international protection and immigration, public safety (Decree-Law No. 113 of October 4, 2018, converted with modifications with Law No. 132 of December 1, 2018); finally, the urban security decree (Decree-Law No. 14 of February 20, 2017).
Therefore, though the Court Ruling No. 99 was jurisprudentially very progressive, the path of inclusion of the mentally weaker inmates has to face a rise of penal populism in Italy – the public generally tends to prefer punitive policies in the field of criminal justice. Italian society is changing sharply towards a position of closure to foreigners, but also towards social policies, strongly compressed in favor of other more perceptible and politically palatable initiatives
Some changes in the architecture of the right of mentally ill offenders in Italy
No full textLa promozione del benessere non può non contemplare anche le persone sottoposte a misure penitenziarie che soffrono di disturbi psicologici. Il diritto alla salute, anche dei soggetti ristretti, costituisce un valore preminente, perché la compressione della libertà personale non può comportare anche la privazione del diritto alla salute. Il punto però, non è soltanto legato alla malattia del carcerato ma al carcere stesso, soprattutto quando questo non sia legale perché contiene prigionieri in eccedenza rispetto alla capienza fissata per legge. Il mio intervento analizzerà le recenti decisioni adottate dalla Corte costituzionale, dal Consiglio Nazionale di Bioetica e dalla Corte di Strasburgo volte a promuovere il well-being dei soggetti più deboli che deve essere valido sia dentro che fuori le mura carcerarie
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