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Italy: Legal Provision Not Allowing Home Detention Ruled Unconstitutional

(May 16, 2019) On April 19, 2019, the Italian Constitutional Court declared unconstitutional article 47-ter, paragraph 1-ter of Law No. 354 of July 26, 1975, because it failed to provide for humanitarian home detention for convicted prisoners experiencing supervening serious mental illnesses. ( Decision No. 99 of April 19, 2019, Issued in a Constitutional Legitimacy Case by Incidental Procedure ) (the Decision), GAZZETTA UFFICIALE [G.U., OFFICIAL GAZETTE], Apr. 24, 2019) (in Italian), G.U. website; Law No. 354 of July 26, 1975, on the Penitentiary System and the Execution of Privative and Limiting Measures on Freedom , G.U. Aug. 9, 1975 (in Italian), G.U. website.)
Background of the Case
The Court of Cassation raised the issue of the constitutionality of article 47-ter, paragraph 1-ter of Law No. 354 of 1975 on the grounds that it did not provide for the benefit of home detention in the case of a convicted prisoner with serious mental illness that arose during the application of the penalty. (Decision, considerations of fact 1, para. 1.) The existing legislation allowed for home detention only in the case of serious physical—not mental—illness. ( Id.  considerations of fact 1, para. 2.)  In the underlying case, the convicted person had been sentenced to more than four years of imprisonment, which left him ineligible for measures alternative to incarceration. ( Id. considerations of law 3.3, para. 1.) The prisoner presented severe mixed personality disorder, with predominant borderline disposition, psychopathological decompensation, and serious self-injuring behavior. ( Id . considerations of fact 1, para. 2.)  For these reasons, the claimants argued that detention in regular jail facilities, as opposed to home detention, constituted inhumane treatment and thus violated several constitutional guarantees. ( Id . considerations of fact 1, para. 4.)
Constitutional Question Posed
The Constitutional Court performed its review in light of articles 2, 3, 27, and 32 of the Constitution, which, in general, prohibit inhumane treatment and establish a convicted prisoner’s right to health. ( Id.  considerations of fact 4 para. 1 & 5 para. 2; CONSTITUTION OF THE ITALIAN REPUBLIC , Dec. 27, 1947, as amended , Italian Senate website (in Italian), English translation as amended through 2012 , Comparative Constitutions Project website.)
Reasoning of the Court
The Court reasoned that recent legislative trends in Italy (e.g., the closure of judicial psychiatric hospitals and their replacement with other alternative detention measures) had created a historic momentum that caused the implicit derogation of the challenged provision. ( Id. considerations of fact 3.1, para. 1.) Additionally, the Court noted a change in the cultural and scientific paradigm on the treatment of mental health issues from mere custody to therapy. ( Id. considerations of law 3.1, para. 2.) The Court sustained that existing safety measures affecting persons subject to the criminal justice system cover only the situation of those who, on the basis of mental health issues, have been found not guilty or have received a reduced penalty, but not those who experience serious mental issues during compliance with their incarceration penalties. ( Id. considerations of law 3.2, para. 2.) In this context, the Court reasoned that conditions are such that a “humanitarian” home detention is completely compatible with the public safety considerations connected to criminal punishment. ( Id. considerations of law 2.2, para. 1.) Finally, the Court held that, according to current legislation, home detention in fact constitutes a modality for the execution of a penalty, a restriction on personal freedom resulting from a criminal punishment subject to monitoring by the authorities. ( Id. considerations of law 5.1, para. 3.)
Holding of the Court
The Constitutional Court declared article 47-ter, paragraph 1-ter of Law No. 354 of 1975 unconstitutional because it contained no provision for a tribunal to authorize home detention for a convicted prisoner suffering from supervening mental illness who had more than four years of incarceration remaining to serve on his or her sentence.

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