Italian prison system has to grant right to sexuality to inmates with their partner (even if not married): the issue of affectivity during the detention concerns the identification of the concrete limit within which the state of detention is capable of justifying a compression of the freedom to express affection, even in the intimate dimension; a limit beyond which the sacrifice of freedom itself turns out to be constitutionally unjustifiable, resolving itself into an injury to the dignity of the person.
(automatic non official machine translation, original here)
Italian Constitutional Court
Decision 26 January 2024, n. 10
In fact
1.- By order of January 12, 2023, entered as No. 5 in the register of ordinances 2023, the Supervisory 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 Art. 18 of Law No. 354 of July 26, 1975 (Norme sull'ordinamento penitenziario e sulla esecuzione delle misure deprivative e limitative della libertà), "insofar as it does not provide that the detained person is allowed, when security reasons do not preclude it, to conduct intimate conversations, including of a sexual nature, with the non-detained cohabiting person, without being required to be visually monitored by the custodial staff."
The referring court states that it has to rule on the complaint under Article 35-bis Ord. Penit. filed by E. R., who, detained at the Terni District House, complains about the administration's prohibition against him conducting intimate and confidential conversations with his partner and his young daughter.
The interested party deduces - as reported in the order of remittal - that, "even in the absence of premium permits provided in his favor, an intimate interview constitutes the only means of exercising his right, a right that he considers fundamental, to a serene relationship as a couple and to fully ensure him a parental role."
1.1.- The judge a quo informs that E. R. has been detained since July 2019, in connection with an accumulation of sentences for attempted murder, aggravated robbery, escape, and others, with end-of-sentence set for April 2026; he adds that the convicted prisoner, transferred to the Terni institution in March 2022, does not yet have a treatment program, nor will he likely be able to enjoy premium leave, both precisely because of the absence of a program that provides for them, and because of the imposition, even recently, of disciplinary sanctions.
The referent illustrates what has emerged from the interlocution with the management of the Terni prison, namely that, while areas have been set up there dedicated to the meetings of inmates with their minor children, there are no spaces reserved for interviews with partners, given, moreover, that the continuous supervision of them, by means of visual control of the custody staff, is prescribed by Art. 18 Ord. penit.
1.2.- The Magistrate of Surveillance of Spoleto considers that the visual control on the conversations with the partner implies for the prisoner "a real prohibition to exercise affectivity in a reserved dimension, and in particular sexuality."
The remittent therefore considers the issues raised to be relevant, given that under the current legal framework, nothing could be imputed to the prison administration, and the prisoner's complaint should therefore be dismissed.
1.3.- The remittal order evokes the precedent set forth in this Court's ruling No. 301 of 2012, indicating the reasons on the basis of which the same issues, which were declared inadmissible at the time, could have a successful outcome today.
Regarding the safeguarding of the prisoner's relationship with the de facto cohabitant, the referring court mentions the supervening of Article 1, paragraph 38, of Law No. 76 of May 20, 2016 (Regulation of civil unions between persons of the same sex and regulation of cohabitations), which equalized the rights of the cohabitant with those of the spouse in the cases provided for by the prison regulations; the referring court also mentions Article 2-quinquies of Decree-Law No. 28 (Urgent measures for the functionality of systems for the interception of conversations and communications, further urgent measures in the field of penitentiary order, as well as supplementary and coordinating provisions in the field of 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 the telephone correspondence of the detainee with the persons linked to him by a stable affective relationship.
1.4.- In the remittent's view, the issues could not be overcome through the use of premium permits, as the exercise of a fundamental right could not be conditioned on the requirements of premium status.
Even less would the institution of leave for family reasons of particular gravity, contemplated by Article 30 Ord. penit. for very stringent cases, which do not include what pertains to the sphere of sexuality, be invoked.
1.5.- The prohibition of intimate talks between the detainee and his partner would violate the "right [of the former] to the free expression of his affectivity, including 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 at large" would integrate an additional compression of personal freedom, unjustified in the case at hand, since it involves a convicted prisoner confined in a medium-security regime.
Article 13 of the Constitution would also be violated in the fourth paragraph, since the prohibition against indulging in normal sexuality would result in physical and moral violence against the person subjected to restriction of liberty, moreover, with a negative impact on any new parenting project.
It would also result in harm to the serenity and stability of the family, protected by Articles 29, 30 and 31 of the Constitution, as well as damage to the prisoner's mental and physical health, guaranteed by Article 32 of the Constitution.
Again, it would be contrary to the sense of humanity and unsuitable for the purpose of reeducation, thus violating Article 27, third paragraph, of the Constitution, a punishment that would lead, "through the subtraction of a significant portion of the free availability of one's body and of expressing affection, to a regression of the detainee toward an infantilizing dimension."
1.6.- Article 3 of the Constitution would be violated from the standpoint of reasonableness, as the ban on intimate encounters would be absolute and indiscriminate, not referring to particular security needs, moreover in contrast with the general guideline set forth in Legislative Decree October 2, 2018, no. 123, on "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 Ord. penit, stipulated that rooms intended for interviews with family members favor, where possible, a confidential dimension of the meeting.
There would then be an unjustified unequal treatment with respect to juvenile institutions, for which Article 19, paragraph 4, of Legislative Decree No. 121 of October 2, 2018, on "Discipline of the execution of sentences towards juvenile offenders, in implementation of the delegation of power referred to in Article 1, paragraphs 82, 83 and 85, letter p), of Law No. 103 of June 23, 2017," provided for the reproduction of home-like environments where prolonged visits can take place to protect affectivity.
1.7.- Through the reference to Article 117, first paragraph, of the Constitution, the referent finally denounces the violation of Articles 3 and 8 ECHR, since the coactive deprivation of affectivity would result in inhuman and degrading treatment, at the same time harming the detainee's right to respect for his private and family life.
This would happen even in cases - such as the present one - in which there are no security reasons justifying a ban, applying the margin of discretion granted to the national legislator by the case law of the European Court of Human Rights.
1.8.- The judge a quo recalls that the aforementioned Judgment No. 301 of 2012 had indicated the problem of prisoners' affectivity as deserving of all attention from the legislature, which had remained inert in this regard.
2.- The President of the Council of Ministers, represented and defended by the Attorney General's Office, intervened in the case, requesting that the questions be declared inadmissible, "for being concerned with a legislative provision concerning a matter reserved for the legislature's discretion."
The state defense also recalls Judgment No. 301 of 2012, inferring the permanence of the reasons that led this Court to declare inadmissible then questions similar to today's.
In particular, the intervener points out that the specificity of the execution of prison sentences against juveniles makes the relevant regulations unsuitable for identifying a constitutionally obligatory solution to be extended to adult prisoners.
3.- E. R. entered an appearance, requesting that the issues be upheld.
In agreeing in full with the arguments set forth by the referring court, the party points in support to this Court's ruling No. 26 of 1999, on judicial protection against acts of the prison administration that violate inmates' fundamental rights, as well as to the recommendations of supranational bodies encouraging the recognition of inmates' right to a full emotional life.
The act of incorporation points to the adoption of some experimental practices geared toward respecting inmates' intimacy, such as that of the "affectivity rooms" prepared in Milan's Opera prison.
Also because of the protracted legislative inertia that followed the oft-quoted ruling No. 301 of 2012, the party hopes for an additive ruling, the implementation of which could be ensured by the supervisory magistrate, compatibly with the conditions of the individual prison facility.
4.- The association Antigone, active in the promotion of rights and guarantees in the penal and prison system, submitted a written opinion as amicus curiae.
The opinion-admitted by presidential decree on October 19, 2023-observes that the prisoner's right to sexuality is sacrificed indiscriminately, without any room for concrete appreciation by the supervisory magistrate.
It further stresses that the exercise of a fundamental human right cannot be entrusted to the reward logic of permits, which, moreover, are enjoyed by a modest share of the prison population.
The association deduces that the legislature has not heeded the warning of Judgment No. 301 of 2012, having intervened with exclusive reference to juvenile institutions, without addressing the general problem, which, on the other hand, is regulated by other European systems and the subject of numerous supranational recommendations.
5.- At the public hearing the state defense responded to a number of questions formulated pursuant to Article 10, paragraph 3, of the Supplementary Rules for Proceedings before the Constitutional Court and then insisted, as did the defense of E. R., in the conclusions already stated.
In law
1.- With the order indicated in the epigraph (reg. ord. No. 5 of 2023), the Supervisory 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, Const. the latter in relation to Articles 3 and 8 ECHR, questions of constitutional legitimacy of Art. 18 Ord. penit, "insofar as it does not provide that the detained person is allowed, when security reasons do not preclude it, to conduct intimate conversations, including those of a sexual nature, with the cohabiting person who is not detained, without the imposition of visual control by the custodial staff."
1.1.- The order sets out that the main judgment concerns the complaint filed by detainee E. R. against the refusal by the management of the Terni District Home - where he is confined in execution of sentence until April 2026 - regarding the conduct of intimate and confidential talks with his companion and young daughter.
Granted that the complainant will probably not be able to take advantage of premium leave, both because he is currently without a treatment program and because he is subject to disciplinary sanctions, the judge complains that the prisoner would thus be precluded from cultivating an affective relationship with his companion in intimate conditions, since the requirement of visual control by the custody staff, which is mandatory under the censured rule as a way of conducting interviews, would not allow him to do so.
1.2.- The Supervisory Magistrate of Spoleto considers that this prescription implies "a real prohibition to exercise affectivity in a reserved dimension, and in particular sexuality," which would entail the violation of the evoked parameters.
First of all, a fundamental right of the person, guaranteed by Article 2 of the Constitution, precisely the right to the free expression of affectivity, including its sexual component, would be violated.
It would also violate Article 3 of the Constitution, under a twofold profile, that of reasonableness, for having the prohibition of intimacy in family encounters absolute in nature, and that of equal treatment with respect to juvenile penitentiary institutions, within which Article 19 of Legislative Decree No. 121 of 2018 allowed the conduct of prolonged visits to protect affectivity.
The "forced abstinence from sexual relations with relatives at large" would then result in an additional compression of the prisoner's personal freedom, which is unjustified if there are no special needs of custody, as well as physical and moral violence on the person of the inmate, thus emerging a violation of the first and fourth paragraphs of Article 13 Const.
A punishment characterized by the "taking away of a significant portion of the free availability of one's body and expressing affection" would also be contrary to the sense of humanity and incapable of fulfilling the re-educational function, resulting in a violation of the third paragraph of Article 27, Const.
The inability to fully cultivate affective relationships could also negatively affect the continuity and steadfastness of the prisoner's family ties, which are protected by Articles 29,30 and 31 Const. and also compromise the prisoner's psychophysical health, which is guaranteed by Article 32 Const.
The result would be the distortion of punishment into inhuman and degrading treatment, detrimental to the detainee's right to respect for his private and family life, and thus would finally result in violation of Article 117, first paragraph, of the Constitution, in relation to Articles 3 and 8 ECHR.
2.- Intervening in the case through the Attorney General's Office, the Prime Minister requested that the questions be declared inadmissible, "for having as its object a legislative provision concerning a matter reserved to the discretion of the legislature."
In particular, the state defense still considers the reasons given by this Court in Judgment No. 301 of 2012, which declared inadmissible issues similar to the present ones.
That ruling is also evoked by the referring party, the party and the amicus curiae, in the different perspective of the monitory value they associate with the same ruling.
The state exception is unfounded.
2.1.- In the aforementioned ruling, this Court declared inadmissible questions of constitutional legitimacy relating to the same provision that is being censured again today, i.e., the requirement of sight inspection of interviews under Article 18 Ord. penit.
Net of some differences in the evocation of parameters (above all, no conventional parameters were then deduced), the questions had a subject matter substantially coinciding with today's, in that they too identified the custodial staff's on-sight control as an insurmountable obstacle to the exercise of the prisoner's affectivity under the necessary conditions of confidentiality.
In addition to reasons pertaining to the incomplete description of the concrete case (since the remittent did not specify the content of the complaint submitted to his judgment, nor the prison regime applied to the complainant, nor the enjoyment of bonus leave), the inadmissibility was reasoned by arguing that "the elimination of visual control would not in any case suffice, by itself, to achieve the objective pursued, necessarily having to access a discipline that establishes terms and methods of the explication of the right under discussion: in particular, it would be necessary to identify the relevant recipients, internal and external, to define the behavioral prerequisites for the granting of "intimate visits," to fix their number and duration, and to determine the organizational measures"; operations that - the judgment continued - "imply, evidently, discretionary choices, which are the exclusive prerogative of the legislature: and this, also in the face of the inescapable need to balance the evoked right with opposing requirements, in particular with those related to order and security in prisons and, amplius, to public order and safety."
Nor did this Court consider it possible to pronounce an additive ruling of principle, since it itself would be "expressive of a fundamental choice," on the issue of the selection of persons entitled to confidential visits.
"In the perspective of the judge a quo," the Court affirmed, "the 'right to sexuality' intra moenia should [in fact] be [in fact] granted only to inmates who are married or in a stable more uxorio cohabitation relationship, excluding others (think, for example, of those who, upon entering prison, have an 'established' affective relationship, but not yet accompanied by cohabitation, or a 'stable' cohabitation)," a solution that did not appear constitutionally obligatory.
2.2.- Notwithstanding the reasons for the inadmissibility of the questions, 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 subject to restriction of their personal freedom to continue to have intimate affectionate relations, including those of a sexual nature," a need that - it was specified - does not find an adequate response in the institution of premium permits, "the enjoyment of which - given the relative prerequisites, subjective and objective - remains in fact precluded to a large part of the prison population."
Given the inadequacy of the instruments of positive law, as well as the lines of tendency manifested at the supranational and comparative levels, this Court thought it appropriate to point out to the legislature that the issue of the prisoner's intramurals affectivity represented "a problem that deserves every attention."
2.3.- In the time that has elapsed since the publication of Judgment No. 301 of 2012, there have been significant innovations in the prison system, which outline a regulatory framework today that is quite different from what it was then.
In particular, a specific indication has emerged regarding the qualified relationships of the detained person, deserving and in need of differentiated consideration even "within the walls," thus precisely on the particular aspect that had led this Court to deem impracticable the adoption of an additive ruling of principle.
Article 1, paragraph 38, of Law No. 76 of 2016, to the effect that "[i]de facto cohabitants have the same rights as those due to a spouse in the cases provided for by the prison regulations," a provision that the Court of Cassation has specified refers to "the need to protect the direct interpersonal relationship" (First Criminal Section, Judgment Sept. 14, 2021-Feb. 10, 2022, No. 4641).
By virtue of Paragraph 20 of Article 1 of the same Law No. 76 of 2016, the rights of the spouse in terms of prison interviews are also extended to the party to the same-sex civil union.
On the other hand, the same provision that today is again being censured in the part concerning the non-derogation of visual control has been enriched in the meantime with a privileged reference to the confidentiality of conversations between prisoners 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 Ord. penit, pursuant to which "[t]he premises intended for interviews with family members shall, where possible, favor a confidential dimension of the interview and shall preferably be located near the entrance to the institution."
Even what is provided for juvenile institutions by Article 19, paragraph 3, of Legislative Decree No. 121 of 2018 ("[a]lthough for the purpose of fostering affective relations, the detainee may take advantage of four extended visits each month lasting no less than four hours and no more than six hours") is, however, emblematic of a regulatory context that has been strongly innovated with respect to the one in which Judgment No. 301 of 2012 was pronounced.
2.4.- For adult prisoners, the legislature, in exercising the overall delegation referred to in Article 1, Paragraph 82, of Law No. 103 of June 23, 2017 (Amendments to the Criminal Code, the Code of Criminal Procedure and the Prison System), did not follow the guiding criterion set forth in Letter n) of Paragraph 85 below ("recognition of the right to affectivity of detained and interned persons and regulation of the general conditions for its exercise").
This choice of the delegated legislature left the previous gap open, but in a general context that had already changed significantly by that time.
2.5.- Ultimately, since the regulatory framework today is different from the one that was the basis of this Court's previous judgment, the state's plea of inadmissibility of the new questions must be disregarded.
2.6.- On the other hand, the order of remittal under consideration cannot be charged with a defect of omission of description of the case, such as the one found at the time, considering that E. R.'s detention status is adequately illustrated therein, including in terms of the possibility of access to premium permits.
2.6.1.- The Supervisory Magistrate of Spoleto assumes that the issue of the prisoner's affectivity cannot be resolved through the institution of premium permits, as it would be improper to subordinate the exercise of a fundamental right to a reward logic.
Moreover, the amicus curiae points out that premium permits are accessed by a modest proportion of the prisoner population.
In the oft-referenced Judgment No. 301 of 2012, this Court observed that such an institution can offer here "only a partial answer," since the use of the premium leave - "given the relative prerequisites, subjective and objective - remains in fact precluded to a large part of the prison population."
2.6.2.- Pursuant to Article 30-ter Ord. penit, the granting of the premium permit is not only subject to the subjective requirements of regularity of conduct in prison and the absence of social dangerousness (paragraph 1), but also to quantitative prerequisites, where the sentence imposed exceeds four years of imprisonment, requiring in that case the expiation of at least a quarter of the sentence itself, and at least ten years for those sentenced to life imprisonment (paragraph 4, letters b and d); the premium permit is also not available to a prisoner awaiting trial, because "[t]he experience of premium permits is an integral part of the treatment program" (Paragraph 3).
The premium permit, which, although it can also be granted "to allow the cultivation of affective interests" (Art. 30-ter, para. 1, Ord. Penit.), thus does not eliminate the problem of the detainee's affectivity, but only allows it to alleviate it, transferring "outside the walls" the realization of affective needs for those who have access to the premium benefit.
The inadequacy of the current regulatory situation is particularly evident for the pre-trial detainee, who is precluded from extra moenia affectivity due to the impossibility of taking advantage of reward leave and is also precluded from intramuraria affectivity due to Art. 18 Ord. penit., all in spite of the presumption of not guilty until final conviction, referred to in Art. 27, second paragraph, Const.
It is therefore confirmed that the discipline of premium permits is not at present suitable for solving the problem of the prisoner's affectivity and that it therefore has a necessary intramurary dimension, a profile that ensures the relevance of the issues raised by the Supervisory Magistrate of Spoleto.
3.- The issues are well-founded, in the following terms.
3.1.- The legal system protects a person's affective relationships in the social formations in which they are expressed, recognizing the freedom of individuals bound by those relationships to live fully the feeling of affection that constitutes their essence.
The state of detention can affect the terms and manner of exercising this freedom, but it cannot nullify it at its root, with an abstract and generalized provision, insensitive to the individual conditions of the detained person and the specific prospects of his or her reentry into society.
The issue of intramurals affectivity thus concerns the identification of the concrete limit within which the state of detention is capable of justifying a compression of the freedom to express affection, even in the intimate dimension; a limit beyond which the sacrifice of freedom itself turns out to be constitutionally unjustifiable, resolving itself into an injury to the dignity of the person.
The warning to the legislature addressed by this Court in Judgment No. 301 of 2012 was precisely aimed at promoting the search for a point of balance, which, while not compromising the inescapable security and order in penitentiary institutions, would nevertheless allow the opening of spaces for the manifestation of that basic freedom.
3.2.- Article 18, third paragraph, Ord. penit. provides that "[i]nterviews shall take place in special rooms under the visual and non-auditory control of the custodial staff."
The normative segment censured by the judge a quo, i.e., the requirement of visual control, is reiterated by Article 37, paragraph 5, of Presidential Decree No. 230 of June 30, 2000 (Regulations containing norms on penitentiary order and on measures of deprivation and restriction of liberty), whereby "[i]n any case, interviews shall be conducted under the visual control of the personnel of the Prison Corps."
These provisions do not contemplate exceptions, and even Article 61, paragraph 2 (b), of the same Presidential Decree No. 230 of 2000, where it allows the director of the institution, in function of the preservation of the prisoner's family relations, to authorize visits of longer than ordinary duration, usable in special rooms or outdoors, does not deviate from the on-sight control, holding firm "the modalities provided for in the second paragraph [today: third paragraph] of Article 18 of the law."
Therefore, the interpretative assumption from which the order of remittal moves is correct - moreover confirmed by the jurisprudence of legitimacy (Court of Cassation, First Criminal Section, judgment September 27, 2022-January 24, 2023, no. 3035) - about the absoluteness of the prescription of visual control over the detainee's family interviews and the consequent preclusion of the exercise of intramurals affectivity, including sexual affectivity.
3.3.- The observation of the interview represents an important safeguard of regularity, functional to avoid the instrumentalization of the interview itself for improper purposes (e.g. for the passage of objects intended for illicit exchanges or capable of offending), so as to allow, if necessary, its immediate suspension (Article 37, paragraph 4, of Presidential Decree No. 230 of 2000).
This rationale corresponds to the objective limitation of the control, which indeed, according to the same Article 18, third paragraph, Ord. penit. is "on sight," but "not auditory," the legislator having intended to safeguard - as long as the prerequisites for an interception between those present do not exist - the confidentiality of the communication between the detainee and the family member (Court of Cassation, Sixth Criminal Section, judgment November 28, 2008-January 28, 2009, No. 3932).
So, auditory control over the interview is excluded unless exceptions are made, while visual control is prescribed without exceptions, and it is precisely this absoluteness that exposes the censured provision to a judgment of unreasonableness for lack of proportionality.
3.4.- In guarding the regularity of the encounter, visual control over the conduct of the interview objectively restricts the space for the expression of affectivity, because of the natural intimacy that this presupposes, in all its manifestations, not necessarily sexual.
It is true that this Court has long recognized sexuality as "one of the essential modes of expression of the human person" (Judgment No. 561 of 1987), but the issue of prisoner affectivity cannot be reduced to that of sexuality, since it more broadly involves aspects of personality and modes of relationship that pertain to the indefectible connotations of the human being.
4.- Among the "guiding principles" of the penitentiary system, declined by Article 1 of Law no. 354 of 1975, there is the one whereby "[t]he prison treatment must conform to humanity and must ensure respect for the dignity of the person" (paragraph 1, first sentence), the one whereby it "shall be implemented according to a criterion of individualization in relation to the specific conditions of the persons concerned" (paragraph 2) and also the principle of the "minimum means," whereby "[n]o restrictions may be adopted that cannot be justified by the need to maintain order and discipline and, with respect to defendants, are not indispensable for judicial purposes" (paragraph 5).
These principles correspond to those enunciated by this Court's jurisprudence on the "constitutional face" of punishment, which is suffering insofar as it is legitimate insofar as it is inflicted "to the minimum necessary extent" (Judgment No. 179 of 2017; in the same sense, Judgments No. 28 of 2022 and No. 40 of 2019).
For their part, the European Prison Rules, adopted on January 11, 2006, by Recommendation Rec(2006)2-rev by the Committee of Ministers of the Council of Europe, and revised and amended by it on July 1, 2020, contain an application of the principle of the minimum means, where it is stipulated that visits must be conducted in such a manner as to enable prisoners to maintain and develop relationships, specifically family relationships, "in as normal a manner as possible" (Rule 24.4).
4.1.- The requirement of visual control over the conduct of the prisoner's interview with the persons linked to him by stable emotional relationship, insofar as it is stipulated in absolute and mandatory terms, results in a disproportionate compression and unreasonable sacrifice of the dignity of the person, thus in a violation of Article 3 Const, provided that, taking into account the prisoner's behavior in prison, there are no concrete reasons for security or needs to maintain order and discipline, nor are there, with respect to the defendant, specific judicial purposes.
It is recalled, in this regard, what this Court emphasized in Judgment No. 26 of 1999 about the judicial protection of prisoners' rights, namely that "[t]he dignity of the person (Art. 3, first paragraph, of the Constitution) also in this case - indeed: above all in this case, whose distinguishing feature is the precariousness of individuals, resulting from the lack of freedom, in conditions of environment by their nature intended to separate them from civil society - is protected by the Constitution through the baggage of inviolable human rights that even the detainee carries with him throughout the course of penal execution."
4.2.- A further profile of the unreasonableness of the restrictions imposed on the expression of affectivity, such as result from the non-derogation of visual control over family interviews, concerns their reverberation on persons who, linked to the detainee by a stable affective relationship, are restricted in the possibility of cultivating the relationship, even for years.
These are persons unrelated to the crime and conviction, who suffer indirect prejudice from the described normative situation.
As much as to some extent it is inevitable that persons affectively related to the prisoner suffer the factual consequences of the prison restrictions imposed on him, this subjective reflex becomes incongruous when the restriction itself is unnecessary, and therefore, in the present case, when the interview can be carried out in intimate conditions without their having to suffer the security requirements.
These remarks on the injury to the dignity of the third party also apply to affectivity in all its manifestations, and not only to sexuality, although the latter, in the specific perspective of conjugality, assumes a peculiar relevance.
4.2.1.- Indeed, Law No. 354 of 1975 admits that a prisoner's marriage is celebrated in prison (Art. 44), but, when premium permits are not usable, it in fact prevents conjugal affectivity; not even the so-called permit of necessity (Art. 30) helps, since said reason is not considered a serious family reason for the purposes of granting this special permit (Court of Cassation, First Criminal Section, judgments September 29, 2015-January 12, 2016, No. 882, and November 26-December 24, 2008, No. 48165).
This determines the phenomenon usually referred to by the image of "white marriages," which highlights not only an injury to the dignity of the spouses, but also an internal contradiction in the legal framework, since the fact that "the marriage has not been consummated" - pursuant to Article 3, first paragraph, number 2), letter f), of Law No. 898 of December 1, 1970 (Discipline of cases of dissolution of marriage) - is cause for the dissolution or termination of the civil effects of marriage.
4.3.- The inability of the detainee to express normal affectivity with his partner translates into a vulnus to the person in the family sphere and, more broadly, into a prejudice for the same in the relationships in which his personality takes place, thus exposed to progressive impoverishment, and ultimately to the risk of disintegration.
From this point of view, a violation of Article 27, third paragraph, of the Constitution is highlighted, since a punishment that prevents the convicted person from exercising affectivity in conversations with family members risks proving unsuitable for the re-educational purpose.
The intimacy of affection cannot be sacrificed by penal execution beyond the extent of what is necessary, as otherwise the sanction is perceived as exaggeratedly afflictive, so that it cannot tend to the goal of resocialization.
On the contrary, the pursuit of this objective is seriously hindered by the weakening of affective relations, which can even lead to their dissolution, since they are frustrated by the protracted impossibility of cultivating them in the intimacy of confidential meetings, with that outcome of "affective desertification" that is the exact opposite of resocialization.
4.4.- The censured provision also violates Article 117, first paragraph, of the Constitution, in relation to Article 8 ECHR.
4.4.1.- It should be premised that by now a large majority of European legal systems recognize more or less ample spaces for prisoners to express their intramurals affectivity, including sexuality.
Mention should be made of family parlors (parloirs familiaux) and family life units (unités de vie familiale), specially designed premises in which the French Penitentiary Code provides that visits by adult family members may take place, of more or less extended duration, "sans surveillance continue et directe"; with a similar function are comunicaciones íntimas, regulated by the Spanish Penitentiary Regulations, and long-term visits (Langzeitbesuche), allowed by the penitentiary legislation of many German Länder.
On several occasions, the EDU Court, while declaring that states are not obliged to recognize conjugal visits, as they enjoy a wide margin of appreciation in this regard, has found the aforementioned legislative orientation to be consistent with the protection of the rights and freedoms provided for in the Convention (EDU Court, Grand Chamber, judgment December 4, 2007, Dickson v. United Kingdom, then EDU Court, judgments July 7, 2022, Chocholáč v. Slovakia, and July 1, 2021, Lesław Wójcik v. Poland).
Notably, the Strasbourg Court does not preclude individual jurisdictions from refusing access to conjugal visits when this is justified by objectives of preventing disorder and crime under Article 8(2) ECHR (judgment April 29, 2003, Aliev v. Ukraine). However, a "fair balance" between the public and private interests involved is required, i.e., a proportionality test of the prison restriction (Dickson v. United Kingdom judgment), and when conjugal visitation is also intended in a reward sense, an appropriate casuistic assessment is required (Lesław Wójcik v. Poland judgment).
4.4.2.- The absolute and indiscriminate nature of the prohibition on the exercise of intramurals affectivity, as derived from the non-derogation of the requirement of visual control over the conduct of interviews, places Article 18 Ord. penit. at odds with Article 8 ECHR, from the standpoint of the lack of proportionality between this radical prohibition and its, albeit legitimate, purposes.
In particular, the right to respect for private and family life, guaranteed by Paragraph 1 of Article 8 ECHR, is compressed without it being verifiable in concrete terms, for the purposes of Paragraph 2 below, that the restrictive measure is necessary for the needs of defense of order and prevention of crimes.
5.- The complaints referred to Articles 3,27, third paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 8 ECHR, must therefore be upheld.
6.- This Court is aware of the impact that today's judgment is bound to produce on the management of penitentiary institutions, as also of the organizational effort that will be necessary to adapt to a new relational requirement structures already burdened by persistent problems of overcrowding.
However, the long time that has elapsed since Judgment No. 301 of 2012, and the warning it brought to the attention of the legislature, makes it necessary to bring back to constitutional legitimacy a rule that is unreasonable in its absoluteness and detrimental to the dignity of persons.
The complexity of the resulting operational problems once again urges the responsibility of the legislature, should it intend to prepare a primary-level regulatory framework on the matter.
It may be recalled in this regard the aforementioned Judgment No. 26 of 1999, in which this Court, declaring the constitutional illegitimacy of Articles 35 and 69 Ord. penit. in the part in which they did not provide for judicial protection against acts of the penitentiary administration that are detrimental to the rights of prisoners, "call[ed] the legislature to the exercise of the regulatory function that is its responsibility, in implementation of the principles of the Constitution."
6.1.- In order to ensure the effectiveness of the principles discussed so far and to safeguard the exercise of legislative discretion, this Court intends to point out some profiles consequent to the ruling it is delivering today.
These are aspects already highlighted by Judgment No. 301 of 2012, as recalled earlier (Section 2.1.), and then regulated for the juvenile detainee by Article 19 of Legislative Decree No. 121 of 2018.
Indeed, they signal problems and needs that arise for the exercise of intramural affectivity of any detained person.
6.1.1.- The duration of intimate talks must be appropriate to the objective of allowing the detainee and his partner a full expression of affectivity, which does not necessarily imply sexual declination, but neither does it exclude it.
6.1.2.- As aimed at the preservation of stable affective relations, the visits in question must be able to take place in a manner that is not sporadic (if, of course, the prerequisites remain in place), and such that the encounters cannot prevent them from achieving the overall goal of preserving the stability of the affective relationship.
6.1.3.- Numerous supranational texts point to the provision of appropriate places as a basic condition for the exercise of the prisoner's intramurals affectivity: thus, in particular, Recommendation No. 1340 (1997), on the effects of imprisonment on the family and social level, adopted by the Parliamentary Assembly of the Council of Europe on September 22, 1997 (point 6.6.), and Recommendation No. 2003/2188 (INI), on the rights of prisoners in the European Union, adopted by the European Parliament on March 9, 2004 (point 1, letter c).
It may be assumed that visits to protect affectivity will take place in specially equipped housing units within institutions, organized to allow for the preparation and consumption of meals and to reproduce, as far as possible, a home-like environment.
It is necessary, however, that the confidentiality of the room where the meeting takes place be ensured, which, in order to allow for the full manifestation of affectivity, must be removed not only from internal observation by the prison officers (who will therefore only watch outside), but also from the gaze of other inmates and those who converse with them.
6.1.4.- Unlike the provisions of Article 19, paragraph 3, of Legislative Decree No. 121 of 2018 for the prolonged visit of the juvenile detainee, for the adult detainee, the co-presence of more than one person should not be allowed, given the possibility of a sexual declination of the meeting, which must therefore take place only with the spouse, the party to the civil union or the person permanently cohabiting with the detainee himself.
6.1.5.- Before authorizing the confidential interview, the director of the institution, in addition to the existence of any prohibitions of the judicial authority that prevent the detainee's contacts with the person with whom the interview is to take place, will also take care to verify the existence of the prerequisite of the stable affective bond, in particular the effectiveness of previous cohabitation.
6.1.6.- In the use of the premises set aside for the exercise of affectivity (which are likely to be, at least at the beginning, a "scarce resource") "prolonged visits are favored for inmates who do not take advantage of premium leave" (provided that this does not depend on reasons that also hinder the exercise of intramurals affectivity).
Provided by Article 19, Paragraph 6, of Legislative Decree No. 121 of 2018 with respect to the juvenile detainee, the special consideration with respect to those who cannot take advantage of premium leave may extend to the discipline of the adult detainee, the rationale for the subsidiarity of intra moenia affectivity being similar with respect to that more physiologically expressible "outside the walls."
7.- In the formulation of the petitum, the Supervisory Magistrate of Spoleto envisages only "security reasons" as obstacles to intimate talks.
This approach does not give due prominence to the guiding principle set forth in Article 1, paragraph 5, Ord. Penit. where, as the basis of intramurals restrictions, the "need to maintain order and discipline" and, with respect to defendants, "judicial purposes" are indicated more broadly.
The removal of the custodial staff's visual control, which is functional to allow the conduct of the interview in the intimacy necessary for the expression of affectivity, can thus be denied when, taking into account the prisoner's behavior in prison, security reasons or the need to maintain order and discipline, or even, with regard to the defendant, judicial reasons preclude it.
Thus, they can detect in an obstructive sense - not only the social dangerousness of the detainee, but also - irregularities of conduct and disciplinary record, in an overall assessment that belongs in the first instance to the administration and secondly to the supervisory magistrate, on the basis of the ordinary form in Articles 35-bis and 69, paragraph 6 (b), Ord. penit.
For the defendant, the appreciation of the procedural reasons, first and foremost the assessment of the need to safeguard the evidence, is the responsibility of the prosecuting judicial authority, until the pronouncement of the judgment of first instance, after which admission to the confidential interview falls under the competence of the director of the institution, as established, for interview permits in general, by Articles 18, paragraph 10, of Law No. 354 of 1975 and 37, paragraphs 1 and 2, of Presidential Decree No. 230 of 2000.
8.- Consistent with the subject matter of the main judgment, instituted by the complaint of a prisoner in the ordinary medium-security regime, it should be specified that today's judgment does not concern special detention regimes.
8.1.- In particular, it does not concern the special detention regime set forth in Article 41-bis Ord. penit., since it, pursuant to paragraph 2-quater, letter b), of the same provision, entails the application of radically derogatory regulations on interviews, as regards the control, even auditive, over the interviews themselves and the conformation of the premises in which they take place.
8.2.- This decision does not even concern detainees subject to special supervision, since, although the restrictions associated with this regime cannot relate to interviews with spouses and cohabitants (Art. 14-quater, para. 4, Ord. penit.), the prerequisites for its application, defined by Art. 14-bis, para. 1, Ord. penit, are antithetical to those for admission to the intimate interview, dealing with inmates who "by their conduct compromise security or disrupt order in the institutions" (letter a), "by violence or threat impede the activities of other inmates or internees" (letter b) or who "in prison life take advantage of the state of subjection of other inmates to them" (letter c).
Moreover, the temporary nature of the special surveillance regime (lasting no longer than six months, extendable to an extent no longer than three months each time) and the immediate submission of the application measure to the control of the supervisory magistrate--according to the provisions of paragraphs 1 and 6 of the same Article 14-bis--ensure that the restrictions have a continuous and current basis of necessity.
8.3.- As for inmates for so-called obstructive offenses, in principle there are no regulatory impediments that preclude the exercise of affectivity intra moenia, given that the obstructiveness of the offense title is inherent to the granting of prison benefits and does not concern the modalities of interviews.
Moreover, the significant reduction in the number of allowable interviews, which Article 37, paragraph 8, of Presidential Decree no. 230 of 2000 establishes "[w]hen it concerns detainees or internees for one of the crimes provided for in the first sentence of the first paragraph of Article 4-bis of the law and for whom the prohibition of benefits provided for therein applies," indicates a clear legislative orientation in the direction of greater control over the encounters of these persons, and this can only result in a more stringent verification of the conditions for admission to the exercise of intramurals affectivity.
9.- This is, of course, without prejudice to the possibility for the legislature to regulate the matter by establishing terms and conditions different from those enunciated above, provided that they are suitable for guaranteeing the exercise of affectivity by prisoners, in the sense made proper by this pronouncement.
It is also appropriate to emphasize here the contribution that to an orderly implementation of today's decision can be made - at least during the lateness of the legislature's intervention - by the administration of justice, in all its articulations, central and peripheral, not excluding the directors of individual institutions.
With this decision, the non-derogation of visual control over encounters ceasing to exist, it may be possible to hypothesize the creation within penitentiary institutions - where the material conditions of the individual facility permit, and with any necessary gradualness - of special spaces reserved for intimate conversations between the detained person and the person affectively related to him or her.
In this perspective, the combined action of the legislature, the supervisory judiciary and the penitentiary administration, each within their respective competencies, may accompany an important stage in the path of reversing the constitutional face of punishment.
10.- For all the above, with reference to Articles 3,27, third paragraph, and 117, first paragraph, of the Constitution, the latter in relation to Article 8 ECHR, the constitutional illegitimacy of Article 18 Ord. penit. must be declared, insofar as it does not provide that a detained person may be allowed, under the above terms, to conduct interviews with his or her spouse, the party to the civil union or the person with whom he or she is permanently cohabiting, without the visual supervision of the custodial staff, when, taking into account the behavior of the detained person in prison, no security reasons or needs to maintain order and discipline, nor, with regard to the defendant, judicial reasons, preclude it.
Issues referring to the additional parameters referred to in the order of referral are absorbed.
For these reasons
the Constitutional Court
Declares the constitutional illegitimacy of Article 18 of Law July 26, 1975, no. 354 (Norme sull'ordinamento penitenziario e sulla esecuzione delle misure deprivative e limitative della libertà), insofar as it does not provide that a detained person may be allowed, under the terms set forth in the grounds, to conduct interviews with his or her spouse, the party to the civil union or the person with whom he or she is permanently cohabiting without visual supervision by the custodial staff, when, taking into account the behavior of the detained person in prison, security reasons or the need to maintain order and discipline do not preclude, nor, with regard to the defendant, judicial reasons.