Credits to

Issue 1/2022

Abstract. The prison regime, in particular that referred to in art. 41 bis L. n. 354/1975, today clashes with the bursting (re) affirmation of the individual sphere and of the rights of those who are restricted. The execution of the judgement in accordance with the basic needs of the human person is a fundamental step in which the degree of tension of the legal system towards the constitutional and supranational values ​​to which it adheres is measured. And in fact, the centrality of the detainee’s person in the rehabilitation process not only fulfills special prevention needs, but also satisfies the general interest in a gradual reintegration of the detainee in the community of reference, thus also enhancing the potential of the treatment. This clearly emerges when discussing the relationship between the protection, even minimal, of the fundamental rights of persons subjected to the special prison regime and the adoption of restrictive measures by the competent administrative authority. The study of this relationship allows us to analyze the degree of proportionality with which the state authority affects the enjoyment and exercise of rights, including that of sexuality.

SUMMARY: 1. The detainee’s right to sexuality: what discipline? – 2. The right to sexuality and the practice of the administrative power. – 3. The decision of the Court and the legal implications: the practice of the administrative power. – 3.1. Continues: the assessment of the illegality of the conduct of the Penitentiary Administration. – 4. Right to sexuality and relationship with the special prison regime (pursuant to art. 41 bis o.p.): is there a solution to the paradox?


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