DOSSIER
A few days ago, the announcement of the Egyptian Ministry of Interior proclaimed the imminent release of 530 detainees, with a decree of grace of President al-Sisi, to decongest the prisons and counter the spread of covid-19. The procedure for evaluating the files of the restricted population in order to identify those entitled to amnesty, launched in a country where prisons frequently represent places of torture, abuse and violation of human rights, fertile ground for processes of radicalisation and extremism, can only emphasise how overcrowding is not only one of the main problems of the Egyptian penitentiary system, but is also an element that characterises more democratic realities and models of judicial order that are constitutionally founded, common to the Member States of the European Union, whose seriousness emerged with the explosion of the SARS-CoV-2 pandemic in the first months of 2020. Worldwide, 102 countries reported crowding levels in prisons above 110 %.[1] It is widely believed that the health emergency has only exacerbated previous systemic weaknesses, not only in relation to the prison context, leading to more alarming consequences than ever. The well-known presence, even in European prisons, of detainee numbers evidently higher than those foreseen by the regulatory capacities, coupled with the resulting promiscuity, often aggravated by precarious sanitation conditions and structural deficiencies, could have been the fuse of a spread of the infection difficult to control, if it had not been readily curbed. Although some outbreaks have occurred in France, Spain and Italy, as will be seen in particular below, the situation has also been governed by the adoption of extraordinary measures to reduce the number of inmates through the application of alternative measures to detention, expressly requested by the UN High Commissioner for Human Rights, Michelle Bachelet, and delaying the execution of sentences, as happened in the French and Iberian penitentiaries. The Council of Europe study on population trends, conducted from the beginning of 2020 to 15 April[2] showed a release of 118,000 inmates from 20 prison administrations out of 43 as a strategy to prevent the spread of infection. The examination of the measures taken by the European States in accordance with the criteria of social distancing reveals homogeneous procedures.[3] In particular, France has simplified the practice of issuing certain categories of detainees and provided for benefits of reductions in sentences or specific protective measures; Great Britain has considered the possibility of issuing perpetrators of certain offences, temporary licences and transferring detainees pending trial from prison to alternative locations, and elderly or those with serious health conditions to their homes; the Czech Republic, Sweden, Finland and Norway postponed the commencement of prison sentences and Denmark suspended the freedom to receive prisoners. A specific mention must be reserved for Italy which, by the end of February had already registered two outbreaks in the northern regions of Lombardy and Veneto, which rapidly extended to the whole national territory, placing it at the top of the list of European countries affected by the virus. It was immediately clear that the rapid spread of the contagion would not have spared the citizens detained in prisons and the professionals who serve them, especially in light of a crowding rate equal to almost 130 % [4] of the detention locations available, among the highest in Europe, together with France and Belgium. Before the outbreak of the pandemic, in fact, there were 63,932 detainees with a regulatory capacity of 50,931 places, now further reduced due to the damage caused during the riots at the beginning of March, which made entire institutes and sections unusable. To aggravate the situation, more than half of the detainees in Italian penitentiary institutions suffer from at least one illness. Measures taken by the government[5] to deal with the emergency include home detention and electronic bracelet surveillance for detainees with a residual sentence of less than 18 months, deferral of the sentence based on health conditions, and licences for persons admitted to semi-freedom. On the occasion of the annual report presented on 26 June, the National Supervisor of persons deprived of freedom stated “Even with rather limited direct effects, the new legislation has prompted a general approach by the judiciary that has helped to reduce the population in prisons in a consistent manner between March and June“. The data show that there were 53,527 detainees last June, with a decrease of about 8,000 in[6] about four months. The reduction recorded in the first month saw a trend of about 95 fewer people per day, rising to 158 by April 16, thanks to the decree “Cura Italia”. However, since that date the trend has been reversed again due to the scandal linked to the release of restricted persons for organised crime crimes, leading to a falling trend of about 77 detainees per day.[7]
Despite the fact that, today, the data on infections in Italian prisons is not a particular concern, the launch of the so-called “Phase 3” represents a possible threat for both free society and for the prison world. The resumption of face-to-face meetings, albeit with the precautions taken synergisticly between the Penitentiary Administration and the healthcare authorities involved, and the reinstating of the rehabilitation activities with the external contacts that these involve, do not justifying relaxing the level of attention. Moreover, during the planning phase of the gradual reactivation of penitentiary institutions until complete implementation of the system (which hopefully will occur in a short time, in order to avoid, or at least reduce, the detainees’ perception of further segregation and detachment from the external community), an important phenomenon occurred that should not be overlooked: during the month of March there was a noticeable decrease in crimes (-66.6 % at national level), with peaks in Veneto and Lombardy, where limited freedoms of movement[8] were taken immediately. A few weeks after entry into Phase 3, this trend seems to have already faded, causing an increase in the number of prisoners under detention in prison and consequent difficulties in the management of prison spaces. It is sufficient to recall the data from March 2019, when 146,762 crimes had been committed nationwide in Italy, compared with 52,596 in the same period in 2020. But how does the increase in arrests affect the current state of the administration of detention spaces? In this regard, it should be noted that among the main precautionary health measures adopted, not only in Italy but also in Greece, the Czech Republic, Latvia, Poland, Estonia, Lithuania, Bulgaria, Slovakia, Luxembourg, Turkey and in almost all EU Member States, there are 14 days of isolation in a single room for each arrested person who enters a detention space from the external community. The above-mentioned percentage of overcrowding, combined with the necessary compliance with the parameters set out in Article 3 of the ECHR relating to the minimum number of square metres available to each detainee in overnight rooms, makes it possible to understand how we are faced with a puzzle of arduous resolution, which seems to force a harrowing choice between safety and health protection. For a more operational and immediate analysis it seems appropriate to pass at a micro (regional) level, drawing inspiration from the above-mentioned case of Veneto. Although the region has been badly affected by the spread of covid-19, like Lombardy and Emilia Romagna, with high alert levels, the North-East Region has since suffered much smaller damages, so much so that it can be set up as a management model. The timely actions put in place, first and foremost the supply in advance and the self-production of reagents for the carrying out of large-scale testing, also reflected positively on the epidemiological incidence in the nine Venetian prisons. In almost all the institutes, there has been no case of contagion, but in the realities in which only one case has been positive when a test was carried out following suspected symptoms, the Regional Health Service has promptly intervened, subjecting all detainees and penitentiary and health professionals to investigation within a few hours. The management of the emergency that broke out in the Correctional Facility of Verona, one of the most exposed institutes on the national territory, with 29 inmates, about twenty prison officers and some health professionals testing positive, was exemplary. What could have proven to be a severe outbreak, has become extinct within a few weeks thanks to the awareness that we were not faced with a simple health emergency, but an event that required synergistic interventions from all the actors that animate the prison reality, crystallised in lines of address from time to time updated according to ministerial and regional guidelines, epidemiological trends and scientific evidence. However, today the fall from 29 February to 30 June to about 350 detainees in the region, and the results of the efforts made by the Penitentiary Administration to identify a sufficient number of detention rooms in each facility to be assigned to the health isolation, seem no longer able to meet the needs in terms of capacity of the structures in the face of the increase in the cases for which it is necessary to allocate in a single room for a period of 14 days. The precautionary process, originally provided for new prisoners entering from the external community, even if asymptomatic, and for those coming from other penitentiary institutes or returning from external health facilities following specialist visits, diagnostic investigations or hospitalisation, or from courts for judicial reasons and premium permits, needs a review determined precisely by the impossibility of obtaining sufficient spaces. This remodelling, which provides for the possibility of abolishing the isolation period for some of the cases described, involves the taking of a clinical risk, albeit moderate, which would, on the other hand, allow the rights of prisoners to be balanced, with particular reference to the possibility of benefiting from premium permits outside. Otherwise, the predestined scenario is that many institutions will not accept new arrests, making it necessary to allocate them elsewhere on the basis of the temporary availability of holding posts, or to continue to suspend the granting of premium permits, with the risks that this option may entail. Even day-to-day mapping of available posts would not be useful for planning an effective management of the procedures, as it could easily be disrupted by multiple arrests with the application of the pre-trial detention measure in prison and the exhaustion of rooms. It should not be forgotten, however, that the prison remains a powder keg which calls for further measures to reduce the number of restricted prisoners — the only measures that would really make it possible to reconcile multiple needs, not only in the light of the crisis caused by coronaviruses. It was, as stated by the National Supervisor of Persons deprived of freedom “a first step, which would have to be followed by others more incisive also to address a systemic criticality that requires an overall rethinking of the execution of sentences and the uniqueness of prison sentence as a response system to the commission of a crime”. Similarly, one of the curators of the Council of Europe research on prisons in the 47 countries of the Council of Europe[9], Professor Marcelo Aebi, highlighted the positive effects of reducing prison sentences on society: “We know that detention has harmful effects in itself, it also makes it difficult to reintegrate into the world of work at a later stage and into family and social relationships in general. Since the ’70s these arguments have been repeated until nausea without having had a great impact on the reduction of the prison population”. On the same front stands the President emeritus of the Constitutional Court, Valerio Onida, when, thinking about the penitentiary overcrowding, he says that “even without the coronavirus, we should have and still should take charge of it: but the health emergency should nevertheless give the impetus to take decisive and not provisional measures in this direction. The use of penalties as a response to antisocial behaviour should only be the last resource; And above all, prison sentences should be reserved for the most serious cases of social danger, while extending the use of alternative penalties”.
“You can accept compromises for strategies, not principles,” a statement articulated in the film “Brubaker”, which was based on a true story of the criminologist in charge of reforming the Arkansas penitentiary system. If we have been able to adequately manage the health emergency thanks to moderate solutions, it is really time to intervene on what has been the most pervasive emergency in long time, with an approach that is deeply curative of an organism that has long been begging to be healed.
[1] Https://www.penalreform.org/resource/global-prison-trends-2020/
[2] The SPACE II survey was published together with a special SPACE I report on Prisoners in Europe in Pandemic Times. This report includes an evaluation of the short-term impact of the covid-19 pandemic on European prison populations up to 15 April 2020.
[3] https://www.ars.toscana.it/2-articoli/4281-emergenza-coronavirus-carceri-paesi-europei-confronto-misure-straordinarie-prevenzione-covid-19-detenuti.html
[4] Department of Prison Administration – Office of the Head of the Department – Statistical Section – February 29, 2020
[5] D.L. No. 18 of 17 March 2020
[6] Antigone Association – XVI report on detention conditions
[7] Ibidem
[8] Report “Defeat of crime in March 2020” published by the Ministry of the Interior
[9] Prisons and Prisoners in Europe in Pandemic Times: An evaluation of the short-term impact of the covid-19 on prison populations
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