With the support of the World Organisation Against Torture (OMCT)
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Solitary confinement is regulated by Article 33 of the penitentiary law and by Article 72 of the penal code.
The first allows three types of solitary confinement: for health reasons, for disciplinary reasons, and for judicial reasons. The second allows the imposition of isolation on life-sentenced inmates.
Several issues concerning solitary confinement can be reported.
First of all, even if the detainee should undergo the measure of disciplinary solitary confinement in his own cell (40), this is almost never the case and it has been reported that there was an established custom consisting in the holding of people in disciplinary isolation in so-called “smooth cells”, which are cells lacking all furniture except from a bed. (41)
Placement in these cells favors mistreatment by the penitentiary police and enhances the risk of suicide among inmates, as it was widely documented by Antigone. (42)
Another issue concerns the composition of the disciplinary council in prisons, which is formed by the prison director, the prison doctor and an educator. Through a specific delegating law (D.P.R. June 23, 2017, n. 103) the Parliament has delegated to the Government the task to modify some parts of the penitentiary law; the modification of the law is aimed at excluding the prison doctor from the disciplinary council. Moreover, in order to execute the disciplinary council’s sanction, the medical staff will have to certify that the inmate is fit to sustain and will have the duty to monitor the inmate’s health daily.
The current law allows up to 15-day isolation as a disciplinary measure.
Furthermore, the imposition of subsequent orders of 15-day disciplinary solitary confinement is not prohibited by law and it has been documented by the National Guarantor as a practice that led to months-long solitary confinement. (43) Several issues regarding the current procedure for disciplinary measures must also be emphazised.
First of all, during the hearing in front of the disciplinary council, the inmate does not have the possibility to defend himself by presenting evidence and witnesses. Furthermore, inmates often don’t receive a copy of the decision itself but only an oral notification of the sanction, and the possibility to appeal against the measure is often not communicated.(44) Another critical issue is that solitary confinement can also be imposed as a disciplinary measure on minors in juvenile institutions.
Solitary confinement for judicial reasons can be applied during the preliminary investigations by the judge of the preliminary investigations; however, the law fails to establish a specific time limit for pre-trial detainees to spend in confinement, leaving this determination to the discretion of the judge.
With regard to solitary confinement of life-sentenced detainees it is important to point out that it is a real penal sanction that stems from Article 72 of the Penal Code s. Solitary confinement is applied in this case during the day, and during the night the detainee is housed either alone or with other inmates. The detainee should be allowed to participate to communal life through work and educational activities, practical trainings, and freedom to take part in religious practices.
However, the common interpretation of this type of solitary confinement is the total exclusion of the inmate from all kinds of communal activities, especially when the inmate is also detained under the 41-bis regime.(45)
Protective solitary confinement is not prescribed by Italian Law. It is however frequently used informally, in order to protect those detainees who have committed grave crimes (e.g. violence against children) or belong to a particular category (e.g. police forces).
LGBTQ detainees are often detained in sections either dedicated to inmates who committed particularly grave crimes, or in dedicated sections, where a single inmate might find himself in a de-facto solitary confinement because no other detainee is hosted there. In both cases, they are often excluded from all activities.(46)
The CPT has addressed these issues in more than one report.(47)
Article 14 bis of the penitentiary law The e special regime 14-bis, “sorveglianza particolare” (particular surveillance) is a regime of preventive nature, that can be imposed by the penitentiary administration for six months, renewable every three months. Detainees under the 14 bis regime are not allowed to work, and restrictions can be imposed on their participation to educational programs, sports, cultural and recreational activities. The imposition of all these prohibitions can create a de facto solitary confinement regime, which the Surveillance Tribunal of Bologna declared to be “without any legal basis” in 2011.(48) Moreover, the 14 bis regime is often combined with the 41 bis regime and is sometimes also used in combination with solitary confinement for sentenced inmates. In these cases, it has been observed that the final result is a de facto total isolation of the inmate, sometimes for prolonged periods of time.
Another issue of concern is the fact that detainees under special regimes (including that of 41-bis) or undergoing a combination of measures are often held in so-called “aree riservate” (reserved areas), particular areas inside maximum-security sections, where the conditions are stricter than under the normal prison regime. Often, inmates detained in these sections have access to very small outdoors areas, which are also closed by a net covering the sky and lacking any equipment. (49)
According to the data collected by the association “Ristretti Orizzonti”, forty-five suicides had been reportedly committed in Italian prisons by the end of 2016, Forty-four cases of suicide were reported from the beginning of January to late September 2017.. Even though, particularly in the last three years, the rate of prison suicides has decreased, it is still a serious phenomenon, which has served to illustrate the inaptitude of the Italian prison regime to deal with the discomfort of the people who live behind bars. Most suicides are committed in the institutions with the worse living conditions, in particularly the ones with old and crumbling structures; with high rates of overcrowding; with few recreational activities and with a low volunteers’ presence. In some cases, the victims were affected by physical or psychiatric conditions. Many suicides happen in solitary confinement cells. These deaths underline the urgency of better detention. conditions and the necessity of alternative solutions for those who are incompatible with the prison regime. Here below two relevant cases are reported.
in February 2017, Valerio Guerrieri, a twenty-two year old man detained in the Regina Coeli prison in Rome committed suicide by hanging himself in his cell. In September 2016, the young man was placed in a Rems (Residence for the Execution of Security Measures – institutions that replaced psychiatric hospitals) in Ceccano (Frosinone). After three escape attempts, the judge ordered he be placed under custody in jail, and put under special surveillance for a couple of months. The tribunal’s psychiatric expert sustained that Valerio suffered from a serious psychiatric disorder and had clear suicidal tendencies. The judge revoked the measure of pre-trial detention and ruled that Guerrieri was to be transferred to another Rems. However, the structure was full and Valerio was forced to stay in Regina Coeli while awaiting a vacancy. He was detained on an illegal base. Antigone, which closely followed the Guerrieri case, stated that he should not be in prison, that suicide could have been avoided and claimed that i you cannot treat a sick person by sending him/her behind bars. In order to properly treat a person, especially if it is a young person, he/she should be afforded the medical, social and psychological supports present on the territory. On October 2017, the Prosecutor of Rome requested the indictment of two prison officers, because, on the day of Valerio Guerrieri’s suicide, they had been a few minutes late on their rounds of surveillance of o the inmate, a special regime of surveillance having been instituted because of his suicidal tendencies.. Antigone claimed that the officers’ delay was not the main problem behind Valerio Guerrieri’s demise and that this accusation was just minimizing the real issues of prison suicides. It stated: “the only thing we do not want from this investigation is a mere search for scapegoats and that everything ends with an issue on the lack of surveillance. It is not with a strict supervision, nor depriving prisoners of t-shirts, belts or sheets that the suicides issue can be solved. The risk, indeed, is to make the prisoner’s lives even more tiring and difficult than they already are”.
Prison of Monza: on 14 September 2017, a 30-year-old prisoner hanged himself while he was in the infirmary of the prison of Monza. It was the second suicide committed in the Lombard structure in a few days and the sixth in less than one year. The situation in the Monza prison is particularly problematic. According to the data collected by Antigone, the detention site is highly overcrowded with 626 prisoners for a capacity of 423 people.
40 Circolare DAP 21 April 1998 n. 148339/4 -1, Regime penitenziario – L’isolamento.
41 Garante Nazionale dei Diritti delle Persone Detenute e Private della Libertà Personale, Relazione al Parlamento 2017, 2017, http://www.garantenazionaleprivatiliberta.it/gnpl/resources/cms/documents/bc9d71fe50adf78f32b68253d 1891aae.pdf , (2017), p. 70.
42 Antigone, Ecco perché l’isolamento fa male (2016), http://www.associazioneantigone.it/upload2/uploads/docs/isolamentofamale.pdf .
43 Garante Nazionale dei Diritti delle Persone Detenute e Private della Libertà Personale, Rapporto sulla visita nelle Regioni di Veneto, Trentino Alto Adige, Friuli Venezia Giulia, http://www.garantenazionaleprivatiliberta.it/gnpl/resources/cms/documents/9958ac6c553f6e5037634149b372605b.pdf (2016), pp. 70-72.
44 Garante Nazionale dei Diritti delle Persone Detenute, Rapporto sulla visita nelle Regioni di Veneto, Trentino Alto Adige, Friuli Venezia Giulia, pp. 70-72. CPT, Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 25 May 2012, CPT/Inf (2013) 32, §95.
45 Garante Nazionale dei Diritti delle Persone Detenute e Private della Libertà Personale, Relazione al Parlamento 2017, p. 71.
46 Garante Nazionale dei Diritti delle Persone Detenute, Relazione al Parlamento 2017, pp. 76-77.
47 CPT, Rapport au Gouvernement de l’Italie relatif à la visite effectuée par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) en Italie du 15 au 27 mars 1992, CPT/Inf (95) 1. CPT, Rapport au Gouvernement de l’Italie relatif à la visite effectuée en Italie par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants (CPT) du 21 novembre au 3 décembre 2004, CPT/Inf (2006) 16. CPT, Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 25 May 2012, CPT/Inf (2013) 32. CPT, Report to the Italian Government on the visit to Italy carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 21 April 2016, https://rm.coe.int/pdf/16807412c2
48 Tribunale di sorveglianza di Bologna, Ordinanza, 27/09//2011, 2011/1690.
49 Garante Nazionale dei Diritti delle Persone Detenute, Relazione al Parlamento 2017, pp. 71, 145