Not my problem

Francesco Martin
Current Events

«I was in prison and you came to visit me» Matthew, 25, 36.


Giving an ear to the readers’ ideas and suggestions allows the author to improve their work, as well as to analyze subjects that, maybe, were never thought about.
Two are the subjects that have been reported to us that, I consider very important: Mental Health and the theme of Justice.
Therefore, I have decided to address them both by highlighting the current justice and regulatory landscape, given the current news also considering the recent news involving suicide in penitentiary institutes.

If according to public perception, a prison is a dark and ostracized place, ostracized, and of which, all things considered, nobody wants to speak or know about, everyday reality depicts a mirror of fragility and problematics, including mental conditions.
The law governing the Penitentiary System (L. 26 July 1975, n.354), includes the so-called alternative measures as an option to detention (i.e., assignment to social services, etc…) that, in the presence of certain conditions, allow the convict to serve their sentence outside of  prison.
Of these, ordinary house detention deserves a special mention, disciplined by article 47-ter O.P., introduced with L. 10 October 1986, n. 663, which allows the convict to expiate their sentence, or what is left of it; not in the penitentiary, but their household, in another place of a private residence or a public place of cure, assistance, or care.
However, with a mere reading of the combined laws (art. 47- ter, sub. 1, lett. C and articles 146 and 147 of the Penal Code), such a measure can be granted only to prisoners affected with severe physical infirmity who are not socially dangerous.
In other words, there is no precise reference to psychological conditions.
The Supreme Court and the Constitutional Court intervened in the matter by offering a constitutionally oriented interpretation of the norm.

According to the Supreme Court, the optional deferment of the sentence is ruled by art. 147 of the Penal Code, applies in the existence of a pathological state within the prisoner that configures an imminent end-of-life prognosis, or in presence of a condition that, with good probability, causes harmful consequences to the subject, which could be eliminated or procrastinated in the correct conditions of treatment. Or in the case in which health conditions are so severe put atonement in contrast with the sense of humanity, or, in any case, don’t consent the condemned to consciously participate in the re-educational process.
The Constitutional Court has also considered it possible to grant house detention in cases in which psychical infirmity is of such consistency and severeness that, in the case of protraction of prison detention, it causes a supplement to the sentence that is contrary to the sense of humanity.
It has been referred to as humanitarian detention, which can be modelled by the judge allowing them to safeguard the health of the sentenced person as well as the need for protection of the community.

In detail, the Court’s thought highlights that: «If the psychological condition causes suffering not inferior to a physical desease and, in the case in which the psychological patology can worsen because of reclusion (“the suffering that the imprisonment unavoidably causes alone to any convicted person can escalate and amplify in people with such conditions, in a way that determins, in extreme cases, a true incompatibility between prison and mental condition”), until it becomes a real inhuman treatment or degrading or a treatment contrary to the sense of humanity, according to the expressions used in art. 27 Cost., paragraph 3, (among others, Corte EDU, section II, 17 November 2015, 2 Bamouhammad vs Belgium, p.119, and Corte EDU, Grand Chambre, 26 April 2016, Murray vs Netherlands, § 105), it becomes necessary to restore an adequate balance between the necessity of protection of the community, which has to be protected by the potential dangerousness of who is affected by certain types of psychological condition, and the necessity to grant the health of the inmates (art. 32 Cost.)».

Hence the evolution of jurisprudence of the Supreme Court and the Constitutional Court is considered to include, in the hypothesis of infirmity, not only in the mere physical condition but in the psychological as well that, in some cases, is cloaked with the same severeness, if not worse.
In this manner, there was the will to recognize, in mental pathologies, that degree of disability that makes the necessity of care of the person incompatible with the permanence within a penitentiary.
Therefore, if jurisprudence decides to extend the sphere of application of such an alternative measure, the actual penitentiary system suffers another problem, often connected to the first.
As a matter of fact, the situation in detention centres shows a picture not properly in line with the principle of ri-education of the sentence, nor with the concept envisaged by art. 3 of CEDU.
In addition to this issue, which could be merely juridical and jurisprudential, only regarding the normative profiles of concession of house arrest to an individual affected by a psychological condition. The recent facts highlight a constant surge in suicides among detainees, sometimes because of the atonement of a sentence, sometimes, in other cases (and this is even worse), because they are undergoing a precautionary measure and still waiting for judgment.
Statistics are indeed not lying: what emerges is that, up until September 12, 2022, suicidal detainees are 59, compared to of 57, throughout the whole of 2021.
Most of the suicides come from young people between 20 and 30 years old (16 suicides) and subjects affected by psychological conditions, that are not adequately treated in penitentiary structures.
Is is worth mentioning, we do not want to conduct a mere and gruesome statistic, but these records can not be ignored.
When a 27-year-old girl or a 24-year-old boy takes their own life it is clear that the system has failed.
It has failed because it was not able to intercept the discomfort and problems that preceded such an action. It has failed because it has not implemented the principles of our Constitution and, it has failed because it was not able to give hope to these people who, even if they have committed a crime, must have the possibility of redemption, ri-education and integration into society.
And, let me add, we have also failed when we think about detainees simply being subjects to closing in a cell and throwing the key away as if not deserving compassion, a kind word, or some comfort, even psychological, to reconduct them to understand their mistakes and crimes and to return within the social fabric more conscientiously.
As some associations involved in detainees’ rights suggested, small changes are needed: the possibility for detainees to freely access phone calls to hear the voice of a relative, a friend, or a loved one; or even a stronger presence of a psychologist (who already exists in such structures, but only within certain days and hours) which could immediately warn the personnel of concrete and grave danger.

In this sense the Department of Penitentiary Administration, the department of the Ministry of Justice – has the task of granting order and safety within penitentiary institutes, the implementation of tasks inherent to the execution of the precautionary measures in the incarceration, of the sentences and detentions, of the measures alternative to detention – has enacted the guidelines to prevent suicide.
Every institute must verify that Regional and Local plans of prevention are in line with the National Plan for the prevention of suicidal conduct in adults. A multi-disciplinary task forces is required to be formed with the assignment of monitoring and evaluating risky situations.
The purpose of the equipe is to identify operational protocols useful to highlight sentinel events.
The staff will be brought to attention to events and specific circumstances that could be a sign of a marked discomfort of detainees. These signals can be intercepted by members of the division Office, legal and educational officers, the personnel of the Penitentiary Police operating in all the different departments, the volunteers, and by the teachers.
Therefore, the problems regarding justice, mental health, and suicides intertwine in a sort of laconic spiral that suffocates the present penitentiary system and provides a significantly alarming picture of the situation.
The Cartabia Reform, currently under approbation, includes modifications to the penitentiary system and, in general, a greater application of the measures alternative to detention leaving the incarceration as an extrema ratio.
However, what is important, along with a concrete reform of justice, is a serious recognition of the current situation of detainees and the Italian prisons by us all; the problem can not be ignored, but it has to shake us as humans, and it can not be dismissed with a plain and simple ‘not my problem’.
When a detainee commits suicide it is not a criminal that dies, but a person; and this must always be kept in mind.

[1] Cass. Pen., Sez. I, 22.02.2022, n. 6300; Cass. Pen., Sez. I, 12.07.2022, n. 26851.

[2] Cort. Cost., 19.04.2019, n. 99; Cort. Cost., 31.03.2021, n. 56.

[3] Si veda in tal senso il seguente link

[4] Per l’esame del tasso di suicidi nelle carceri dei singoli Stati UE si veda il seguente link

[5] P. Maciocchi, Una task force per prevenire i suicidi in carcere: ecco le linee guida, in IlSole24ore, 08.08.2022.

Illustration by Nicolas Magnant, portfolio 2022_eng

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