From: Head of Prison Administration Department, Legislation and International Relations Research Office, Ministry of Justice

Transcription

1 Translation of letter Undated From: Head of Prison Administration Department, Legislation and International Relations Research Office, Ministry of Justice To: DG JUST B.1 Ref: US-INT--2-4/4 Subject: Strengthening mutual trust in the European Judicial Area - A Green Paper on the application of EU criminal justice legislation in the field of detention Please find enclosed the answers to the questionnaire in the above document, drafted by this administration.

2 Enclosure MINISTRY OF JUSTICE PRISON ADMINISTRATION DEPARTMENT Subject: European Union Green Paper on detention and associated questionnaire Within our field of competence, we hereby provide the information requested on this subject. (1) What non-custodial alternatives to pre-trial detention are available? Do they work? Could alternatives to pre-trial detention be promoted at European Union level? If yes, how? The Italian code of criminal procedure (CCP) provides for the following non-custodial alternatives to pre-trial detention: ban on leaving the country (Article 281 CCP); the person charged may not leave the country without authorisation from the court; obligation to report to the criminal police (Article 282 CCP) on the days and at the times specified by the judge; removal from the family home (Article 282-bis CCP); the judge issues an order to leave the family home immediately and not to return to it or have access to it without authorisation; restraining order barring the person charged from places frequented by the injured party (Article 82-ter CCP); this means that the person charged may not approach, beyond the limits set by the court, specific places habitually frequented by the injured party, by the injured party's immediate family or by persons cohabiting with the injured party or intimately associated with the injured party. The court may also use this measure to forbid any communication between the person charged and the injured party; residence ban, which forbids the person charged from living in a specified place or entering it without authorisation from the court. In contrast, the obligation to reside in one place (Art 283(2) CCP) obliges the person charged to reside in one place and not to leave the territory of a given municipality or a ward of that municipality. These measures definitely work when they are in keeping with the case at hand, inter alia the threat to society which the person to whom they are applied represents. They could usefully be promoted at European Union level by publishing reports and descriptions of the measures couched in the legal terminology of the Member States. Reciprocal research into the related statistical data could also represent a significant means of boosting mutual awareness.

3 (2) What are the most important alternative measures to custody in your legal system? Do they work? Could probation and other alternative measures to detention be promoted at European Union level? If yes, how? The major alternatives to custody post trial are laid down in Law No 354 of 1975 on penal measures (legge sull ordinamento penitenziario, hereinafter OP ): placement on probation with the social services (Article 47 OP): this is the most common alternative measure to custody existing in the Italian system and coincides with the notion of a probationary sentence. The general requirement for such placement is for the offender to be liable for a custodial sentence of no more than three years (or subject to no more than three more years of a longer existing custodial sentence). The measure can be granted by the surveillance court (which governs the execution of sentences) if it holds that it may be effective in the rehabilitation of the offender and is sufficient to prevent the risk of them committing further offences. When granting the measure, the surveillance court lays down the rules which the offender is obliged to respect with regard to the following matters: contacts to be maintained with the social services, place of residence, freedom of movement, ban on frequenting specific places and obligation to perform specified activities, in particular work obligations. The local office for non-custodial sentences has the task of establishing, ensuring and co-ordinating control over the offender over the duration of the measure. Special forms of probationary placement exist for drug addicts and alcoholics (Article 94 of Presidential Decree No 309 of 1990). home detention (Article 47-ter OP) is an alternative measure to custody which allows the offender to serve their sentence in their own home. A number of possibilities for granting such a measure exist in law: offender aged over seventy, existence of special family, health or educational reasons and, more generally, in other cases in which a custodial sentence of no more than two years is due to be served, or no more than two more years of an existing sentence, providing that the measure is sufficient to avoid the danger of the offender committing further offences and that they have not been sentenced for particularly serious crimes (e.g. organised crime offences). Recently, with Law No 199 of 2010, new measures were introduced aimed at encouraging the use of home detention for sentences of no more than one year. day release (Article 48 OP): this measure is an alternative to imprisonment only in part. The prisoner on day release is authorised to spend part of the day outside the penal institution in order to work, follow training or engage in activities conducive to their reintegration into society. conditional release (Article 176 CC): a measure consisting of restoring a prisoner s freedom before the normal end of their sentence in such a way as to bring them back into contact with their centres of interest and personal ties with a view to facilitating resocialisation. The following conditions must be met for the measure to be granted: definite indications of the offender s reformed character, completion of at least thirty months and, in any case, no less than half of the custodial sentence, providing that the remaining part of the sentence does not exceed five years, and fulfilment of the

4 civil obligations deriving from the offence, unless the prisoner can demonstrate their inability to fulfil them. Where the measure is granted, the offender is subject to the rules of the supervised freedom scheme. While on conditional release, the offender remains under the supervision of the public security authorities and receives support from the Office for non-custodial sentences. Conditional release can be revoked in two cases: if the offender commits an offence of the same type or if they fail to abide by the obligations of their conditional release. These measures work fairly well as forms of punishment which are significantly less of a burden than imprisonment both for the person concerned and for society as a whole. Clearly, however, they are all the more effective when a careful individual evaluation of the offender is made at the time of granting them. It is also very important for the performance of such measures to be closely linked to participation in a precise and measurable re-education programme by the convict. In the Italian system supervised freedom is a non-custodial public order measure rather than an alternative to imprisonment. The promotion of alternative measures to custodial sentences is already carried out at European level by the European Organisation for Probation, a body of which the Italian Prison Administration Department is a member. (3) How do you think that detention conditions may have an effect on the proper operation of the EAW? And what about the operation of the Transfer of Prisoners Framework Decision? Given that the whole system of the European Arrest Warrant is based on mutual trust among the Member States, the fact that a country incurred frequent rebukes and penalties from the international bodies guaranteeing prisoners rights could obviously undermine this foundation. In this respect it is worth recalling what is laid down by Article 18(1)(h) of Law No 69 of 2005 concerning the possibility of refusing to surrender a person if there is a serious risk that the wanted person may be subjected to inhuman or degrading treatment or punishment.

5 We agree with the humanitarian objective and the aim of enhancing the possibilities of reintegrating the offender into society of the 2008 Transfer of Prisoners Framework Decision. (4) There is an obligation to release an accused person unless there are overriding reasons for keeping them in custody. How is this principle applied in your legal system? Custodial measures can be ordered by the court, at the request of the public prosecutor s office, only in those cases and circumstances laid down by the law. By law, there are only three general conditions in which it is possible to order pre-trial detention: the offence in question must be punishable by a maximum sentence of at least four years' imprisonment, the offence with which the accused is charged is in practice punishable and there are serious indications of guilt. In addition to these general conditions, the existence of at least one of the following reasons for such a provisional measure must be shown to exist for pre-trial detention to be maintained: an imminent risk of interference with evidence, a real risk of the accused person absconding and a risk that the person, if left at large, might commit further specific serious offences. The principle according to which the accused must be released from pre-trial detention in prison in the absence of one of the above preconditions is applied fairly strictly in the Italian system. Indeed, the court must immediately withdraw the measure or replace it with a more favourable one as soon as the general conditions of applicability or the requirements for the provisional measure are missing or diminished. Release from detention or the replacement of the measure in melius mutari can be requested not only by the lawyer for the defence but also by the public prosecutor's office, or decided ex officio by the court. (5) Different practices between Member States in relation to rules on (a) statutory maximum length of pre-trial detention and (b) regularity of review of pre-trial detention may constitute an obstacle to mutual confidence. What is your view? What is the best way to reduce pre-trial detention? Given that all Member States are without doubt democratic polities in which the fundamental rights of citizens are upheld, we do not view any statutory differences regarding the length of pre-trial detention or the procedure for review of custodial measures as a problem. (6) Courts can issue a EAW to ensure the return of someone wanted for trial who has been released and allowed to return to his home State instead of placing him in pre-trial detention. Is this possibility already used by judges, and if so, how? This matter lies beyond the scope of competence of the Prison Administration Department.

6 (7) Would there be merit in having European Union minimum rules for maximum pre-trial detention periods and the regular review of such detention in order to strengthen mutual trust? If so, how could this be better achieved? What other measures would reduce pre-trial detention? They might prove useful, but they would have to be introduced on a very gradual basis and, at least initially, not be too strict. It is clear that too rapid an introduction of rules of this nature could give rise to problems in countries with greater organisational problems or where, owing to the existence of large and far-reaching criminal organisations, extremely complex cases involving a significant number of defendants have to be tried. In terms of how such rules could be introduced, an agreement might be reached at Community level to make amendments to the legal system of each Member State of the Union. The main, and preferable, means of reducing pre-trial detention in the Italian system consists of adopting legal and organisational changes capable of reducing the time taken for justice to be done. (8) Are there any specific alternative measures to detention that could be developed in respect of children? This matter lies beyond the scope of competence of our Department. (9) How could monitoring of detention conditions by the Member States be better promoted? How could the EU encourage prison administrations to network and establish best practice? (10) How could the work of the Council of Europe and that of Member States be better promoted as they endeavour to put good detention standards into practice? In response to both questions, we are of the opinion that it is very important to organise visits and exchanges of experience between the personnel of the institutions concerned systematically. It could be particularly useful to disseminate knowledge more widely through the specialist journals published in each country. To this end, our Department, with its journal Rassegna penitenziaria e criminologia, has an ideal medium for publicising examples from other European systems.