Credits to
Carmelo Minnella

Coronavirus and prison emergency

The insufficient measures adopted by the converted “care Italy” decree and substitute for the surveillance judiciary

Issue 4/2020

Abstract. Within the measures to counter the pandemic of COVID-19,the decree-law 17 march 2020, number 18, so called Italian care decree, has provided for an expansion (at least on paper) of the perimeter of the execution of the penalty at home (according to the model already started of law number 199 of 2010) and licenses to semi-free. These are too “timid” measures which, if applied widely, can constitute a, certainly not decisive, first step to protect the already fragile balances of penitentiary life that the emergence of the Coronavirus risks to blow up. It was hoped that, improvements could be made in the conversion of the decree law, to widen access to prisons empty measures; first of all, the one relating to the elimination or at most the optional nature of the electronic bracelet for home executions whit a residual sentence of more than six months and the extension of the roof penalty to access the measure. Instead, on April 24, 2020, the Chamber definitively approved the decree law 18 of 2020 without making any significant changes to the relevant regulations. In the meantime, the surveillance judiciary is exercising a delicate role of substitute that will continue to exercise in absentia of the legislator. However, it must be noted that there is no clarity of the direction to follow.

This article was submitted anonymously for evaluation by two expert reviewers, with a positive outcome.


SUMMARY: 1. The first government strategy: is to close prisons by avoiding outside access. – 2. “The courage to dare”: the request for measures of “automatic” application by the surveillance judiciary. – 3. The recommendations of the European Committee for the Prevention of Torture. – 4. The change of course of the government: from closure the timid opening of the prison. – 5. Reporting execution at home on its own track of mere execution of the criminal penalty. – 6. The new execution of the residual penalty at home: application conditions. – 7. The derogation from the new home execution: the supervisory judge’s assessment of the danger of escape and recidivism disappears. – 8. The electronic bracelet for sentenced persons over 18 with a residual criminal penalty of more than six (rectius seven) months. – 9. Hypotheses that prevent the execution at home (notwithstanding law 199 of 2010). – 10. Procedure relating to home execution notwithstanding for convicted prisoners. – 11. Procedure relating to home execution notwithstanding for free convicted. – 12. The extension of the award license application area. – 13. Forgotten prisoners in pre-trial detention in prison. – 14. Too many obstacles to accessing the new execution at home. – 15. The role of substitute for the surveillance judiciary. – 16. Follows: the widespread use of humanitarian home detention. – 17. The valuable contribution of the European Court of Human Rights. – 18. The opportunity to rethink the prison and get out of the prison-centric vision.


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