COVID-19 emergency, overcrowding and the right to health also of the prisoner subjected to the regime pursuant to article 41-bis of the Italian Penitentiary System

Abstract

The first phase of the health emergency linked to the Coronavirus was characterized, as far as criminal matters are concerned, by a “great legislative confusion”. No exception was the legislation on the execution phase of the sentence and the meager interpolation of the penitentiary system which had a sudden legislative jolt after the ‘discussed’ concessions of ‘humanitarian’ home detention to prisoners subjected to the rigorous treatment provided for by art. 41- bis o.p., and the felt need to partially intervene here. Since “the prison emergency is not a fire across the river”, it was necessary (and necessary) to act immediately. The difficult role of substitute which the supervisory judiciary was called upon to play, took the form of granting prison-emptying measures to ease prison pressure, along various paths. A ‘courageous’ surveillance jurisprudence has used some institutions already present in the penitentiary system, rereading the related application requirements: first of all the serious prejudice of the protraction of the status detentionis, provided for by articles 47, paragraph 4 and 47-ter, paragraph 1-quater o.p. for the provisional application of probation assignment to social services and home detention. A separate issue concerns convicts with health problems. In some cases, these were guaranteed release from prison in the first emergency phase through the optional deferment of the sentence (art. 147 paragraph 1 n. 2 of the criminal code), accompanied by home detention ‘as an exception’ or ‘in subrogation’ or ‘humanitarian’ ‘ (as it is not bound by statutory limits in the event of serious physical and mental illness, which can also be granted to prisoners for impedimental offenses pursuant to article 4-bis o.p., even if subjected to the regime pursuant to article 41-bis o.p. and to those who in the past have suffered the revocation of alternative measures) in the presence of a serious clinical picture, even if considered by the doctors not incompatible with the prison regime.