Right to affection

Are security and affection at odds within prison walls? Not anymore. A recent ruling by the Constitutional Court, after many years of debate, supports the right to affectivity as a sign of civility. Reading the sentence, the Court's position clearly emerges: «The punishment cannot be contrary to the sense of humanity» because «a punishment characterized by the subtraction of a significant portion of free availability of one's body and of one's expression of affection would also be contrary to the sense of humanity and incapable of carrying out the re-educational function, with consequent violation of article 27 of the Constitution" which provides that punishments cannot consist of treatments contrary to the sense of humanity and must aim at the re-education of the convicted person. "The impossibility - continues the sentence - to fully cultivate emotional relationships could also negatively impact the continuity and strength of the prisoner's family ties". A right to affectivity already recognized in various European systems, but which will not have a short term in our country, where too many prison prisons succumb to overcrowding, where prisoners do not have adequate medical care, access to education and work. It is the Court itself that admits that it is aware of the impact that the sentence will have on penitentiary institutions, as well as "the organizational effort that will be necessary to adapt to a new relational need". The possibility of keeping an emotional family relationship alive will be an element that will reduce the risk of recidivism, instead creating the conditions for real reintegration into society once the sentence has been completed. According to the Court, therefore «it can be assumed that visits to protect affectivity take place in specially equipped housing units within the institutions, organized to allow the preparation and consumption of meals and reproduce, as far as possible, a domestic-type environment .

It is however necessary that the confidentiality of the room where the meeting takes place is ensured, which, to allow full expression of affectivity, must be removed not only from internal observation by the custodial staff (who will therefore only monitor from the outside), but also to the gaze of the other inmates and of those who talk to them". Not everyone will be able to benefit from this right to privacy, among others those restricted by article 41 bis will be excluded, or for reasons of security and public order, or for judicial needs.


Chiara Genisio
NP February 2024