Prison Leave in Italy: Legislation and Practical Application Is the Italian Regulation on Prison Leave Ensuring the Constitutional Purpose of Punishment?

Abstract

This paper provides a description of the prison leave regulation in the Italian criminal system in order to bring out critical points and questionable compatibility with the Italian Constitution. The work starts with an analysis of the principles of rehabilitation and the prohibition of inhuman treatments which stem from the Italian Constitution (Article 27, third paragraph) and the Prison Act (Law no. 354/1975). Particularly, Art. 30 of the Prison Act allows prison leave only for woeful events occurring in the life of the detainee. In addition, “bonus leave”—introduced by further provision in Law no. 663/1986—can be granted in order to foster family ties and cultural or work interests, but only to convicts who have maintained good behaviour while imprisoned and are not labelled as “socially dangerous”. Starting from a study of statutory law and its practical application, the paper analyses the main trends in court rulings and the recent Italian prison system reform, entered into force in October 2018.

Introduction: Objectives and Methods of the Analysis

The Italian Constitution¹ (1948) establishes that “Punishment cannot consist in inhuman treatment and shall aim at the rehabilitation of the convicted person”. The same principle is provided by Art. 1 of the Prison Act (hereafter, P.A.), specifying that prison treatment shall conform to humanity and ensure respect for people’s dignity. It also guarantees impartiality, without discrimination in terms of sex, gender identity, sexual orientation, race, nationality, economic and social conditions, political opinions and religious beliefs, and it conforms to models that foster autonomy, responsibility, socialisation and integration.

The purposes of this research are to understand if the rehabilitation through punishment is guaranteed in the Italian prison legislation and to analyse the regulation of the different kinds of prison leave. For prisoners, the prison leave clearly sets up a tool that represents an important step towards their reintegration into society, which is also useful for limiting the negative effects of detention, including social isolation and separation from their family.

It is a complex exploration that imposes, as a starting point, a brief analysis of the constitutional framework regarding human dignity, fundamental rights and deprivation of personal freedom in relation to individuals subjected to the criminal system. We will, therefore, try to apply a method of investigation that combines a normative analysis of prison leave in Italy with empirical insights and the use of statistics. The aim of the paper is to provide an analysis of the constitutionality of prison leave, highlighting the aspects of greater interest for the prisoner’s rehabilitation plan in view of their release.

Rehabilitation Purposes and Safeguards Addressing Inmates in the Italian Constitution

First of all, the Italian Constitution gives strong emphasis to the principles of solidarity and respect for the dignity of every individual² for whom the Republic recognises these inviolable rights that must be guaranteed regardless of the behaviour and choices made by an individual (including criminal ones). In particular, Art. 2 of the Constitution represented a decisive change in the conception of the individual in relation to the public authority. By using the adjective “inviolable”,³ the Constitution affirmed the pre-existence of rights with respect to the public powers, and reversed the individual/State relationship scheme that had characterised the previous decades.⁴ State institutions, therefore, have the constitutional duty to guarantee human rights at every moment of social life—even when the breach of criminal law may have occurred.

Alongside the recognition of the inviolability of rights, the State is required to respect the mandatory duties of solidarity—political, economic and social—that constitutional decisions have included among the fundamental values of life in the community.⁵ The individual, to whom Article 2 of the Constitution refers, then, is not an isolated or abstract subject; quite the opposite, the Constitution protects the person in reference to their relationship with other individuals and public institutions.

The Republic is also given an incisive duty: to remove the economic and social obstacles that reduce the freedom and equality of citizens and prevent the full development of the person.⁶ Therefore, public authorities have a specific, constitutional obligation to ensure that social dignity is effectively recognised for all human beings, without any distinction (not even between free and imprisoned ones).

This is necessarily reflected in the criminal system and in the principles of humanity and rehabilitation through punishment, as well as in the normative provisions on prison leave in Italy. The Italian Constitution requires that public authorities ensure full respect of the inviolable rights and dignity of each prisoner, making any re-educational plan aimed at the prisoner’s social rehabilitation effective.⁷

Rehabilitation is a goal—here a central point—that is not identified with the compulsory repentance or with the moral indoctrination of the prisoner. The rehabilitation purpose shall only aim at re-inserting the person into society, identifying this process with the term “resocialization”.^8,.9

The regulation on prison leave, which allows the detainee to spend a short period in the community—with the obligation to spontaneously come back to the penal facility once the leave has expired—belongs to this constitutional context. It tends towards the gradual return of the prisoner to the society, holding him or her responsible for their actions while pursuing their self-determination. The present analysis aims to discuss whether the current scheme on prison leave in Italy is or is not suitable for the purpose of the prisoner’s reintegration into society.

Preserving Contacts with the Outside World in the Italian Prison System

In order to understand whether the regulation on prison leave in the Italian legislation actually fulfils the constitutional function of social rehabilitation, it is necessary to start from the legislation on the prison system. Before Law no. 354/1975, the Italian penitentiary system did not provide for any kind of leave: from the Fascist period, sentences were served in prison custody and no possibility of leave was granted.

Only since 1975 has the law provided a tailor-made prison treatment tending towards social integration through contacts with the outside world, thus related to the specific conditions of the individuals concerned. With this purpose, rehabilitation treatment is carried out mainly using education; vocational training; work; participation in projects of community work; religion; and cultural, recreational and sports activities, as well as facilitating proper contacts with the outside world and relations with the family.¹⁰ The rationale of this new perspective is to be found in the awareness that a lack of contact with the world outside the prison involves serious psychophysical and behavioural discomforts that inevitably fall on the pathway to social reintegration, the ultimate goal of every punishment.¹¹

In other words, as of 1975, it was clearly pointed out that only a criminal system “heading outside the prison walls”, can guarantee an effective rehabilitation pathway for the convicted person while helping the detainee to gradually readapt to society. This is due to the fact that prison confinement represents a forced removal from society, which almost inevitably results in a strong process of alienation of the person. This new approach, according to the constitutional framework, is, therefore, affirming that the criminal execution in Italy should not necessarily take place “inside” the prison. The prison facility is not a place where convicts are sent to be segregated. Indeed, it is quite the opposite: it is a complex and diversified system entrusted with the constitutional purpose of promoting the rehabilitation of every prisoner in respect of their dignity.

The rules concerning the regulation of prison leave are part of this regulatory context, looking out and beyond the prison walls.

Emergency Leave: Features and Critical Aspects

The original text of the 1975 prison reform was exclusively provided for “emergency leave” (Article 30 P.A.), while the “bonus” or “bonus leave” (Article 30-ter P.A.) was foreseen ten years later.¹² Let us first deal with the characteristics of the first type of leave and its several pragmatic issues.

Emergency leave may be granted by the Supervisory Penitentiary Judge¹³ to allow the convicted person to visit, with the provisions laid down in the regulation, a member of his/her immediate family or close relative who is seriously ill and likely to die soon. It can also be granted for exceptional serious family circumstances.¹⁴

Before ruling on the request, the judge must collect information on the existence of the reasons given with the help of the public security authorities (also at the place where the inmate is allowed to go). The decision is taken with a motivated act that must be immediately communicated to the Public Prosecutor and to the victim of the crime who can, within twenty-four hours, lodge a claim that suspends its effects.¹⁵ The judge, after having acquired summary information, may rule within ten days. The General Attorney at the Court of Appeal is informed about the granted leave and the related outcome with a quarterly report from the bodies that issued the said leave.

We can state that the emergency leave was introduced in the penitentiary system as an exceptional tool, granted to offer prisoners the opportunity to leave prison solely for serious family needs, thereby also attenuating the isolation deriving from detention. Due to its strict applicative set of rules, it has a very limited scope of application. Its allowance is, indeed, subject to the existence of “exceptional and particularly serious situations” whose assessment, in the absence of precise legal indications, is up to the Penitentiary Judge.¹⁶

This kind of leave is not functional to the rehabilitation purposes, neither is it possible for the inmate to use it with continuity—only where the Judge deems it appropriate by evaluating various problems relevant to its enforcement. First, a leave is granted exclusively for purposes related to the emotional dimension: it is not applicable to cultural, work or study necessity (as distinct from the leave granted by Article 30-ter P.A.). The second question concerns the very limited cases in which the article is foreseen.

Italian judges have, for a long time, interpreted the word “seriousness” in the sense of including exclusively “negative” events occurring in the prisoner’s family (funerals, serious illness and so on). Only in the last ten years have courts developed a new interpretation: in some cases, the term “seriousness” has been intended in its broader meaning of “relevance or importance” of the event for the detainee.

In decision no. 36329 of November 2015, the Court of Cassation specified that: “among the particularly serious family events to which the granting of leave is subject (...) fall not only tragic events, but also exceptional events, which are not usual, but are particularly significant in the life of a person, because they are capable of profoundly affecting prisoner’s life plan and therefore the degree of humanity of detention and the importance of their rehabilitation pathway”. Therefore, according to the Court, the emergency leave can also be applied to positive events, provided they are exceptional as assessed from time to time by the judge. Following this direction, a court decision has recently granted a detainee under a special detention regime¹⁷ an emergency leave, allowing him to witness the birth of a child conceived through medically assisted reproduction.¹⁸

However, this is a minor and not a consolidated case law.

In different cases (the possibility for an inmate to attend his son’s wedding day,¹⁹ to procreate within the marriage²⁰ or to make a declaration of paternity at the municipal offices²¹), judges have denied emergency leave. According to these decisions, the nature of a happy event excludes “that charge of exceptional emotional tension which must—normatively—characterise the family event of particular gravity”.²²

Therefore, judges have recently confirmed the restrictive interpretation: granting ordinary leave remains subject only to the occurrence of negative events in the family life of a prisoner, such as grief or serious illnesses.

The narrow range of application of the emergency leave raises several issues. The impossibility of including positive events appears to be in contrast with the importance given to family ties in the prisoner’s social reintegration.²³

In particular, the penitentiary law establishes that during the execution of the sentence, particular care is dedicated to maintaining, improving or re-establishing relations between prisoners and internees and their families.²⁴ It has, therefore, expressed an absolute pre-eminence of the protection of the emotional dimension of the prisoner’s social reintegration, becoming an element on which to adjust the treatment plan. Particular attention is also dedicated to the crisis resulting from the removal of the subject from the family unit, to make it possible to maintain a good relationship with the children, especially if of younger age, and to prepare the family, next environment of life and the subject himself to get back to the social context.²⁵ Even when arranging transfers, the subjects are destined to the institutions closest to their home or to that of their family or to their social community of reference.²⁶

Many other provisions are dedicated to the maintenance, improvement or restoration of detainees’ emotional ties. Consider, for example, the right to promptly inform family members of a custody order, or in case of a prisoner’s transfer, to provide economic assistance to families and the possibility for detainee’s relatives to request penitentiary benefits and alternative measures.

The Court of Cassation clearly stated that the maintenance of family relations is an unavoidable right of the prisoner, functional to the re-educational process imposed by the Italian Constitution.²⁷ Granting emergency leave only for negative family events does not seem, therefore, in line with the rehabilitation purpose given by the Italian prison regulation and international principles of the protection of the prisoner’s right to family. Since its origins (1975), the regulation has been conceived without also assessing the need to guarantee the reintegration (especially within a family) of the offender, and this, not only when parental bonds are compromised by grief or serious illness but also when they could be strengthened by positive changes.

Trying to draw some general conclusions, it may be said that the regulation regarding emergency leave appears, in the phase of its concrete application, as an exceptional instrument completely unsuitable to concretely foster the prisoner’s rehabilitative needs. This circumstance is also ascribable to the obvious indeterminacy of the same regulatory framework that does not allow the identification, even in general terms, of what are the “serious family events” that allow the granting of emergency leave.

Another important problem concerns the case law which subordinates the leave allowance to the investigation of good conduct of the condemned in the course of his/her detention. These findings are unrelated to the rationale of an institution that, unlike the bonus leave (Article 30-ter P.A.), does not have the nature of a reward. As also noted by the Court of Cassation, in cases of emergency leave, any security need can be duly guaranteed with various securing devices—such as the possibility of an armed escort for the prisoner—and “with every other safeguard that makes the exit from the institution compatible with the requirements of the order and public security”.²⁸

Based on the foregoing considerations, we can deduce that the emergency leave presents, in the Italian legal system, an essentially marginal nature, which results in a strictly limited application of such provision. In this way, the humanitarian and rehabilitative purposes imposed by the Italian Constitution are disregarded, hence the need for a profound rethinking of the law.²⁹

The Failure of Some Recent Reforms

Concerning these serious problems, a reform of the emergency leave has been attempted. The “Giostra Commission”, called to work on a draft decree to reform the penitentiary system,³⁰ had proposed the granting of emergency leave—with the exception of prisoners subject to a special detention regime—for “particularly important” family events.

According to the Explanatory Report, the change was motivated by the need to prepare concrete implementation of the rehabilitation goals of punishment through the granting of this type of leave. In this sense, it is stated that the increase in the scope of application of the emergency leave would be aimed at comprehending a vast series of situations that today are not adequately addressed by the Italian system. In support of the proposal, the Commission emphasised that the amendment had long been advocated by many well-known legal experts,³¹ as well as some others from the judicial system, in order to allow a wider application of the provision in relation to family situations of particular relevance which are not necessarily serious in the sense of “mournful”, but still important for the prisoner’s relationships.

Also very relevant, the proposal for a modification suggested by the Panel no. 6 of the General Consultation on the penal execution,³² dedicated to “family relationships and the local enforcement of punishment”, proposed the introduction of a further type of leave called “emotional prison leave”, not exceeding ten days every six months of detention, in order to specifically cultivate family bonds and to spend some time with those close to the prisoner. The leave could not be granted when there was a danger that the convict, during the period of leave, may commit new crimes or when, once the leave expired, the detainee might not return to prison.

It is evident that this proposal was aimed at introducing an “extraordinary leave” to improve the emotional and sexual sphere of the prisoner. This latter aspect is particularly problematic in the Italian system which, unlike most European countries,³³ does not safeguard the right to conjugal visits with the loved one while in prison.³⁴

These proposals were aimed at improving prisoner rehabilitation by strengthening the connection with the outside world and the emotional dimension, a link which must necessarily take into account each treatment programme, varying according to the situation and personal history of the prisoner. However, when approving the recent prison system reform,³⁵ the Government did not include the mentioned proposals: the granting of the emergency leave remains subordinated only to the occurrence of exceptional events of particular gravity, without solving the problems discussed above.³⁶

Bonus Leave: a Step Towards Social Reintegration

Available statistics testify a gradual increase in the granting of bonus leave in recent years, as shown in Table 1.

Table 1 Bonus leave in Italy: years 2015–2018

In spite of these numbers, prison leave still has a limited range of application with respect to its potential. Let us analyse why.

As anticipated, it is only from 1986 that Italian legislation is providing the prisoner with an instrument that is actually pursuing the inmate’s social reintegration: the bonus leave described in Article 30-ter P.A.³⁷ For those who have displayed “good behaviour” and who are not socially dangerous, the Penitentiary Judge, after hearing the prison governor, can grant a “reward” leave, lasting a maximum of fifteen days each time, for the purpose of allowing the prisoner to cultivate family, cultural or work interests.³⁸ The duration of the leave cannot exceed a total of forty-five days per year spent in detention.³⁹

The behaviour of the convicted persons is considered “good” when the person, during the detention, has expressed a constant sense of responsibility and correctness in personal behaviour in the activities organised in the prison and in any work or cultural activities. It is a provision undoubtedly connected with the prisoner’s rehabilitation because the experiences lived in the community are an integral part of the treatment programme that is followed by the rehabilitation officers and the prison social workers in collaboration with the local social services.

The link of the bonus leave with the rehabilitation programme was also enhanced by the Constitutional Court, according to which the bonus leave represents an incentive for the prisoner’s collaboration within the prison institution and, at the same time, “a re-education device, allowing an initial reintegration of the condemned in the society, being therefore an integral part of the rehabilitative treatment”.⁴⁰ For these reasons, the use of bonus leave is monitored by the rehabilitation officers and the prison social workers in collaboration with the local social services; therefore, a contact point is created between the prison and the community outside, allowing the intervention of the latter, through the appropriate territorial authorities, in the prisoner’s rehabilitation.

From a historical, regulatory point of view, bonus leave, having a broader nature compared with the emergency leave, had already emerged during the drafting of the penitentiary reform of 1975, taking concrete form in two positions. Some felt there was a need to grant short leave to cope with unexpected family needs; others felt there was a need to mitigate the emotional isolation resulting from detention. The granting of short periods of freedom intended to favour the maintenance of family bonds and to reduce the effects of sexual deprivation was thus proposed. Both instances were not accepted in the 1975 reform, which, as mentioned, only codified the prison leave for “particularly serious family events”. The introduction of the bonus leave came ten years later through the aforementioned Law no. 663 of 1986.

Since 1986, therefore, it has been possible to identify two kinds of prison leave: those that respond to a function of humanisation of punishment alone (the emergency leave) and those that, as part of the individualised treatment of the convicted, perform a gradual reintegration into society (bonus leave). The characteristics of the two forms of leave are, therefore, completely different: emergency leave is provided exclusively to cope with serious and exceptional family events that are independent from the behaviour of the prisoner; bonus leave, on the contrary, implies the “goodness” of the condemned person’s conduct and the prognosis that can be foreseen in the free environment.

More generally, it can be said that there are two elements that structurally differentiate this type of leave from emergency leave: first, the value of “reward” given to its function; second, the fact that bonus leave is provided as an integral part of the rehabilitative treatment, individualised and in constant transformation.⁴¹

The Constitutional Court has also accepted a “plurifunctional” conception of the bonus leave. In judgement no. 296 of 1997, the Court affirms that such leave, as well as an incentive for the collaboration of the prisoner with the prison institution, is a rehabilitation instrument, allowing a gradual reinsertion of the detainee in society; in fact, its concession is subject to “the absence of particular social danger, as a consequence of the so-called “good behaviour”.

Subjects and Application Requirements

Bonus leave can only be granted to convicted prisoners; remand prisoners are excluded, together with those who are subjected to alternative measures of home detention and are assigned to the probation service. In relation to prisoners on semi-liberty,⁴² the function of the bonus leave is absorbed in the prisoner’s so-called licence, which can always be granted by decree motivated by the Judge as a reward for a duration not exceeding forty-five days a year. During semi-liberty, the person is subjected to the probation regime and, if the obligations imposed are violated, the measure may be revoked.

If at the end of the day in semi-liberty, or after its revocation, the detainee does not return to the facility without a justified reason for no more than twelve hours, she or he shall incur disciplinary actions and the judge may revoke his/her semi-liberty. If the absence continues for longer than 12 hours, the person is punishable for being guilty of escape; this crime results in the automatic suspension of the semi-liberty and the judge imposes its revocation.

Specific limits are also established with respect to the length of the conviction. The granting of bonus leave is allowed⁴³:

• a) For those sentenced “to arrest” or detention not exceeding four years;

• b) For those sentenced to detention exceeding four years after having served at least one quarter of the sentence;

• c) For those sentenced to life imprisonment, after having served at least ten years of their sentence.

Further limitations on the granting of bonus leave are provided in the case of particular offences:

• a) Convicted offenders for association crimes may only have the right to have the bonus leave granted if they collaborate with the judicial authorities;

• b) Convicted offenders for other serious crimes (committed for the purpose of terrorism, murder, aggravated robbery, aggravated extortion, aggravated drug trafficking) may have the right to a bonus leave only if there is no evidence to suggest that there are links with organised crime or subversive groups.

• c) Convicted offenders who escaped, or who had a revocation of an alternative measure, cannot have access to the “benefit” for two years.

Reporting these categories is very important for the purpose of our analysis. As can be easily understood, the granting of bonus leave is very limited, based on the type of crime committed and the length of the sentence. This inevitably reduces the application of such measure, significantly compressing its rehabilitation purpose.

Granting a bonus leave depends on three requirements. First of all, the judge must evaluate the “good” behaviour displayed by the prisoner. This condition occurs when the person, during detention, has expressed a constant sense of responsibility and correctness in the activities organised within the prison facility and in any work related or cultural activity. The Judge shall therefore evaluate, through a dialogue with the prison officers, whether the convicted person has behaved positively towards other prisoners and prison staff, as well as the participation of the person in the organised activities, with particular regard to those related to education, work, culture and sport.⁴⁴ In conclusion, the existence of the assumption of “good” behaviour must result from the overall assessment of the conduct held by the subject during his sentence. The opinion, mandatory but not binding, of the prison governor becomes decisive for the assessment of this first condition on which, as will be said shortly, several circulars of the Penitentiary Administration were issued.

The second requirement concerns the absence of social danger. The judge must make a probability judgement on the presumable conduct of the person in the community, granting the permission if she/he assesses that no new offences will be committed. In order to ascertain the lack of social danger, the Supervisory Judge collects information from the police authorities of the place where the prisoner is detained and asks to be reinserted.

As anticipated, the Department of Penitentiary Administration has intervened several times to clarify some applicative and interpretative aspects in view of a correct management of bonus leave. With circular no. 3191/5641 of 29 December 1986, the Ministry of Justice repeated that the decision regarding the adoption of the leave is under the responsibility of the Judge who identified the criteria that the prison directors must follow in order to express their mandatory but nonbinding opinion. In order to assess the “good conduct” requirement, the director must also consider the time in detention served in other facilities; in relation to the requirement of the absence of social danger, it is necessary to evaluate criminal history and records. The same document emphasised the need to verify the existence of both conditions: “The existence of good conduct cannot imply in itself the absence of particular social danger. There may be prisoners who, although maintaining a formally good conduct, are nevertheless to be considered particularly dangerous”.

The Ministry of Justice returns to the topic with another circular no. 3246/5696 of 30 May 1988. To verify the existence of the requirement of “good conduct”, the circular specifies that any element upon which the prisoner can be concretely and reasonably deemed to deserve great trust because of their positive behaviour must be considered. The circular also precisely defines the second requirement concerning social danger: This is based on the fear that the detainee will not reenter the facility when the leave expires, may commit new crimes or maintain links with a criminal organisation or may act as a link between prisoners and the outside world. In order to carry out this delicate task, the director must always evaluate the attitude of the subject, the seriousness of the crimes committed, the duration of the incarceration suffered and the existence of links with criminal associations. Further, indications contained in the same document concern the attention that must be paid to any social alarms that could derive from the granting of the leave, as well as due respect for the victims of crime and for their relatives and loved ones. To fulfil this task, prison directors must acquire information from law enforcement, expressing an opinion that is always well articulated in its motivations.

The third and last requirement concerns the necessity that the bonus leave allow the convict to cultivate family, cultural or work interests. This list must not, in any way, be considered as exhaustive: The Judge can also grant permission to allow the convict to cultivate interests of different kinds than those expressly indicated by the law, provided they are useful for his/her rehabilitation purposes. Particularly relevant are emotional reasons that allow offering a solution to the aforementioned problem of the Italian system’s failure to guarantee the right to conjugal visits in prison. This is not only a partial solution, but one which does not exempt the prison administration from protecting prisoners’ right to family contacts, conjugal visits and sexuality for every prisoner, not only the ones who are granted the leaves.

To be noted, finally, is how the Judge has included in the purpose of “cultivating cultural interests” the issues related to the right to study (let us think, for example, to the possibility to take university exams outside prison). The Ministry of Justice first circular no. 3191/5641 of December 1986 specifies that the success of the bonus leave also depends on the ability to provide local welfare services to the prisoner, inviting rehabilitation officers and the local social workers to identify “those the prisoner can contact in case of emergency”.

Bonus Leave Grant Procedure and Duration

The duration and the procedure to grant the bonus leave are two aspects that must be analysed in order to understand if the bonus leave really tends to socially reintegrate the prisoner. To grant a bonus leave, the judge adopts a motivated decision stating the existence of three criteria required by the law. As stated above, the opinion of the prison governor, assessing the existence of “good” conduct by the interested subject, is of great importance: It is not a binding opinion, but it must be taken into serious consideration by the judge in relation to the need to appropriately assess granting conditions.

The magistrate, immediately and without formality, transmits the provision to grant or refuse the prison leave to the Public Prosecutor and to the interested party, who, within twenty-four hours, may lodge a complaint with the Supervisory Court which will meet within ten days. The decision of the Supervisory Court can be appealed to the Court of Cassation within fifteen days from the date of notification. This appeal does not suspend the execution of the order that is immediately enforceable unless otherwise decided by the Court.

If the bonus leave is granted, the prison director shall send it to the competent social service and, in the eventuality that the measure is to be carried out in a different location from the one in which the prison is based, documentation is sent to the competent social service centre that will report on the interventions.⁴⁵ From these considerations, it can be seen how the regulation of bonus leave in the Italian system is connected with local services. In order for the leave to be genuinely aimed at the prisoner’s rehabilitation, direct cooperation among all the administrations is needed.

The total duration of the bonus leave cannot exceed forty-five days within each year spent in prison; the single leave duration cannot exceed fifteen days. The provision of such a short time limit represents a critical aspect for the enforcement of bonus leave in Italy. In consideration of its link with rehabilitation, it would rather be preferred to leave the timing choices to the Judge. This would make it possible to modulate each leave on the needs of the individual, also assuring the individualisation of the sentence.

In order to fulfil law enforcement’s demands, as in the case of an emergency leave, the Judge may take certain precautions. In particular, if some element emerges that may lead to the presumption of failure to return to the prison institution or of a risk to perpetrate crimes, the judge may arrange the escort of the convict for all or part of the prison leave and provide prescriptions about the observance of particular times, presentation before law enforcement authorities and obligations of permanence at the domicile for a fixed time.

If the detainee does not return to the penitentiary institution at the end of the leave, it is provided the same as for the emergency leave: disciplinary sanctions if the absence continues beyond three hours; if the absence, instead, exceeds twelve hours, the detainee can be charged with escape.

Finally, it is particularly important that the law provides that the time spent by the detainee on leave or under licence is counted for all purposes in the duration of the sentence, confirming the strong link between rehabilitation treatment and the granting of bonus leave, which becomes a real individualised measure (also for the purpose of calculating the prisoner’s early release).⁴⁶ For the purposes of this analysis, this last consideration is of great importance. It is confirmed that the bonus leave represents an important measure that accompanies convicts towards their gradual reintegration into society and limiting the negative effects of prison—also requested by the European Court of Human Rights (ECtHR) in the Boulois v. Luxembourg judgement.⁴⁷

Conclusions

From the above considerations, it clearly emerges how prison leave, allowing the convicted to maintain a relationship with the outside world, represents an indispensable tool for the rehabilitation purpose imposed by Article 27 of the Italian Constitution. In this perspective, the original text of the Prison Act was largely inadequate, especially considering the impossibility for the Judge to grant emergency leave for positive events happening in the life of an inmate.

To avoid a residual application of ordinary leave, the 1986 reform established a clear link between the rehabilitation purpose and a new benefit by introducing the bonus leave. From then on, the possibility is granted that a person permanently deprived of personal liberty may spend a short period in the community, under certain conditions and with the obligation to spontaneously return to the penitentiary institution at the end of the leave.

The Penitentiary Administration has welcomed with great favour this news, by expressing the hope that the 1986 reform would be applied by all “with the maximum conviction, commitment and enthusiasm”.⁴⁸ From these words, a very favourable opinion about the reform has emerged.

Statistics and data reported below—divided by Italian regions—also testify to a gradual increase in the granting of bonus leave in recent years: 32,617 in 2015/2016, 34,105 in 2016/2017 and 35,912 in 2018/2019. However, in spite of these numbers, prison leave still has a limited range of application with respect to its potential.

This is primarily due to its inapplicability towards prisoners awaiting trial who represent almost 20% of the Italian prison population. Out of 60,348 inmates living in one of the 190 Italian prisons, 19,610 are not convicted and cannot, therefore, benefit from semi-liberty.⁴⁹ The scope of application of the bonus leave is further reduced due to its inapplicability towards the categories of prisoners deemed as most dangerous by the legislature; think about the impossibility of accessing it for those convicted for especially heinous crimes that refused to cooperate with justice authorities.

Even if it is certain that bonus leave is an important instrument for appreciation of the progressive implementation of treatment programmes—allowing it to reduce the negative effects resulting from imprisonment⁵⁰—it is equally true that, today, the present legislation on prison leave in Italy does not show its full potential.

A greater use of prison leave would make it possible to solve, at least in part, the main problem of the Italian penitentiary system: prison overcrowding. This is an important issue, as Italy has been repeatedly condemned—with the well-known judgments Sulejmanovic (2009)⁵¹ and Torreggiani (2013)⁵²—by the ECtHR for violating Article 3 of the European Convention on Human Rights that forbids torture and inhuman or degrading treatments. A wider application of prison leaves could relieve the pressure on the administration, allowing them to commit more resources to rehabilitation-focused activities for those who cannot be granted any leave. Still, overcrowding is a structural problem that should be faced by the Parliament with a strongly blended approach, reducing the use of prison confinement as a response to illegal behaviours and fostering nonjudicial pathways (i.e. restorative justice), rather than just being “mitigated” through partial solutions.

On this aspect, as indicated before, the recent law reforming the Italian prison system did not meet these expectations. It is unquestionably a missed opportunity in view of a broader implementation of the constitutional principles regarding humanisation and the prisoner’s social reintegration through greater enhancement of semi-liberty.

Tables 2, 3, 4 and 5 show the trends in prison leave in Italy during the last three years. Even though a slight rise can be appreciated, it is probably due to a correspondent rise in the prison population (see Table 2): In other words, the rise can be linked to the increased number of beneficiaries, more than to a more widespread application of this instrument by Italian judges.

Table 2 Prison population in Italy: years 2015/2018

Table 3 Bonus leave granted to detainees: years 2017/2018

Table 4 Bonus leave granted to detainees: years 2016/2017

Table 5 Bonus leave granted to detainees: years 2015/2016