Prison treatment must be guaranteed that does not conflict with the sense of humanity as established by article 27 of the Constitution. However, the Court does not impose a rigid choice by excess or by default on the specific needs of the individual case
In the presence of a legal provision that clearly indicates the objective of preventing the passage of objects during interviews between prisoners subjected to the prison regime of article 41-bis and their family members, the solutions to achieve it must necessarily be adapted to the concrete situation , taking into account both the rights of the prisoner and those of the minor family member. Under the 41 bis regime, a punctual, adequately motivated derogation from the rule of the glass partition cannot be prevented, even for interviews with minors over twelve; on the other hand, and conversely, no intangible claim is attributed to sharing the same free space, not even during interviews with under-twelve-year-old minors. It was established by sentence n. 105 of 2023 (editor Nicolò Zanon), declaring groundless, in the sense of which in the justification, the questions of constitutional legitimacy raised by the Supervisory Magistrate of Spoleto.
The referring judge considered that article 41-bis, paragraph 2-quater, letter b) of the prison system required that the interviews of the prisoner under special regimes, even with minor family members, always take place with the of the “full height” dividing glass. For this reason, he doubted that the provision violated the Constitution (in particular Article 27), the European Convention on Human Rights and the one on the rights of the child. The ruling clarifies that it is instead possible to provide a constitutionally oriented interpretation of the text of the law, which guarantees prison treatment that does not conflict with the sense of humanity, also to protect the pre-eminent interest of minors.
In fact, a regulation that totally excludes the possibility of maintaining physical contact with family members during visual interviews, even those of a younger age, would be in conflict with the provisions of article 27 of the Constitution. The Court is also aware that interviews with family members or with third parties represent one of the moments at the highest risk for the objective pursued by the differentiated prison regime, i.e. that of preventing the links between members of criminal organizations and with members of these who are at liberty. For this purpose, therefore, it is legitimate, during the talks, to adopt rigorous measures to prevent the passage of objects. The legislator, however, did not specify the pertinent technical solutions, limiting itself to requesting that the premises intended for interviews be “equipped” in such a way as to prevent this passage.
The sentence, therefore, clarifies that the use of dividing glass, while being the most suitable solution for achieving the objective of the law, is not imposed by the text of the provision. It follows, in particular, that the circular of the penitentiary administration, which allows unshielded interviews with family members in a direct line under the age of twelve, is not illegitimate. The Court also states that the indication contained in the circular does not in turn impose a rigid choice, which may not be adequate, by excess or by default, for the specific needs of the individual case. On the one hand, this indication cannot prevent a punctual, adequately motivated derogation from the rule of the dividing glass, even for interviews with minors over the age of twelve; on the other hand, and conversely, he does not attribute an intangible claim to sharing the same free space, not even during interviews with under-twelve-year-old minors.