Security measure of forced hospitalization in REMS for mentally-ill offenders: no to a return to the past!

Issue 6/2020

Abstract. The essay addresses the issue raised by the Judge of Preliminary Investigations of Tivoli concerning the constitutional legitimacy of articles 206 and 222 of Italian Criminal Code as well as of Art. 3-ter Decree Law n. 211/2011, since they exclude the Minister of Justice’s management of the security measures of forced hospitalization in REMS, established for mentally-ill offenders. The Judge’s claim criticizes the Regional health-care management of the REMS and links to it the inefficiencies, which are present in some Regions of Italy, related to the lack of places in the facilities and the very long waiting lists. The following work faces these problems and does not minimize them; nonetheless, it argues that we should not return to a Department of Penitentiary Administration management of the psychiatric security measures. In fact, such management would inevitably be characterized by the prevalence of a segregant-custodial approach at the expenses of the care-needs of mentally disordered offenders. On the contrary, it is necessary to loudly defend the principles of the reform in the field of the treatment of offenders with mental disorder, completed by Law No 81/2014, and to act to improve its implementation, but always within the law framework.

SUMMARY: 1. Preliminary considerations. – 2. Issue of constitutional legittimacy of the law: the exclusively health-care management of psychiatric security measures. – 3. The current system: limits, issues and solutions.

To read the Reflection, click on “open file”.

To read the Tivoli Judge of Preliminary Investigations’s order, issued on May 11, 2020, here discussed, click here.