Article 41bis was born in 1986, introduced by the so-called "Gozzini law”, named after its promoter, which also introduces other provisions on imprisonment, including reward permits, house arrest, social services and semi-liberty.
The 41bis regime initially concerns only emergency situations in prisons (for example in the case of riots) and provides for the suspension of the application of “the normal rules of treatment of prisoners”. A suspension “motivated by necessity” and within the limits of the “strictly necessary duration”.
The extension of the regime dates back to 1992, after the Capaci massacre in which Giovanni Falcone, his wife and his escort men lost their lives.
Initially it raises doubts of constitutionality. It aims to prevent bosses in detention from having contact with their families, continuing to command and give orders. Another objective is to push mafiosi to collaborate, introducing additions to the law on collaborators of justice.
Initially temporary, the rule became definitive in 2002, the year in which the harsh prison regime was extended to those convicted of terrorism and subversion and other types of crime (enslavement and human trafficking, child prostitution, child pornography, gang rape, kidnapping for robbery or extortion, criminal association for the purpose of tobacco smuggling or drug trafficking).
It can last four years and extensions can be of two years.
Inmates may meet with first-degree relatives under the age of 12 without glass partitions.
Finally, in 2017, a circular was issued, which I attach, containing ten rules to regulate the life of prisoners under 41bis. In addition to the relationships of prisoners with the outside world and social life in prison, the provision establishes rules for increasing the privacy of prisoners, the right to have books and other material for training purposes and finally the obligation, for prison directors, to respond to requests from convicts within a set time.
Here is the text of article 41 bis of Law 26 July 1975 n. 354 Rules on the penitentiary system and on the execution of measures depriving and limiting liberty
Emergency situations
1. In exceptional cases of revolt or other serious emergency situations, the Minister of Justice has the power to suspend the application of the normal rules of treatment of prisoners and internees in the institution concerned or in part thereof. The suspension must be motivated by the need to restore order and security and has the duration strictly necessary to achieve the aforementioned purpose.
2. When there are serious reasons of public order and security, also at the request of the Minister of the Interior, the Minister of Justice also has the power to suspend, in whole or in part, with respect to prisoners or internees for any of the crimes referred to in the first sentence of paragraph 1 of Article 4-bis, or in any case for a crime that has been committed by taking advantage of the conditions or in order to facilitate a mafia-type association, in relation to which there are elements such as to suggest the existence of links with a criminal, terrorist or subversive association, the application of the rules of treatment and the institutions provided for by this law that may be in concrete conflict with the needs of order and security. The suspension entails the restrictions necessary to satisfy the aforementioned needs and to prevent links with the association referred to in the previous sentence.
In the event of unification of concurrent sentences or concurrence of multiple pre-trial detention orders, suspension may also be ordered when the part of the sentence or precautionary measure relating to the crimes indicated in Article 4-bis has been served.
2-bis. The provision issued pursuant to paragraph 2 is adopted by reasoned decree of the Minister of Justice, also at the request of the Minister of the Interior, after consulting the office of the public prosecutor who is conducting the preliminary investigations or that of the judge in charge of the proceedings and having acquired all other necessary information from the National Anti-Mafia Directorate, the central police bodies and those specialized in the action to combat organized, terrorist or subversive crime, within the scope of their respective competences.
The same provision has a duration of four years and can be extended in the same way for subsequent periods, each of two years. The extension is ordered when it appears that the ability to maintain connections with the criminal, terrorist or subversive association has not lapsed, also taking into account the criminal profile and the position held by the subject within the association, the continuing operation of the criminal association, the occurrence of new incriminations not previously assessed, the results of the penitentiary treatment and the standard of living of the relatives of the subject.
The mere passage of time does not, in itself, constitute a sufficient element to exclude the ability to maintain connections with the association or demonstrate the cessation of its operation.
2-quater. Prisoners subjected to the special detention regime must be confined within institutions exclusively dedicated to them, preferably located in insular areas, or in any case within special sections and logistically separated from the rest of the institution and guarded by specialized units of the penitentiary police.
The suspension of the treatment rules and institutions referred to in paragraph 2 provides for:
a) the adoption of high internal and external security measures, with particular regard to the need to prevent contacts with the criminal organisation to which one belongs or of current reference, conflicts with elements of opposing organisations, interaction with other prisoners or internees belonging to the same organisation or to others allied to it;
b) the determination of one interview per month to be held at regular intervals and in rooms equipped to prevent the passage of objects. Interviews with persons other than family members and cohabitants are prohibited, except in exceptional cases determined from time to time by the director of the institution or, for defendants until the pronouncement of the first-instance sentence, by the competent judicial authority pursuant to the provisions of the second paragraph of Article 11. Interviews are subjected to audition and recording, subject to reasoned authorization by the competent judicial authority pursuant to the same second paragraph of Article 11; only for those who do not conduct interviews can a monthly telephone interview with family members and cohabitants lasting a maximum of ten minutes be authorized, with a reasoned provision by the director of the institution or, for defendants until the pronouncement of the first-instance sentence, by the competent judicial authority pursuant to the provisions of the second paragraph of Article 11, and only after the first six months of application, and subject to recording. The provisions of this letter do not apply to interviews with the lawyers, with whom a telephone call or a conversation of the same duration as those planned with the family members may take place up to a maximum of three times a week;
c) the limitation of the sums, goods and objects that can be received from outside;
d) exclusion from the representation of prisoners and internees;
e) the censorship of correspondence, except that with members of Parliament or with European or national authorities having jurisdiction in matters of justice;
f) the limitation of outdoor stay, which cannot take place in groups of more than four people, to a duration not exceeding two hours per day, without prejudice to the minimum limit referred to in the first paragraph of Article 10. All necessary security measures will also be adopted, including through logistical measures on the detention premises, aimed at ensuring that the absolute impossibility of communication between prisoners belonging to different social groups, exchanging objects and cooking food is ensured.
2-quinquies. The prisoner or internee for whom the application of the regime referred to in paragraph 2 has been ordered or extended, or the defense attorney, may lodge a complaint against the application procedure. The complaint is presented within twenty days of the communication of the provision and the supervisory court of Rome is competent to decide on it. The complaint does not suspend the execution of the provision.
2-sexies. The court, within ten days of receiving the complaint referred to in paragraph 2-quinquies, decides in chambers, in the forms provided for by Articles 666 and 678 of the Code of Criminal Procedure, on the existence of the conditions for the adoption of the provision. At the hearing, the functions of public prosecutor may also be performed by a representative of the office of the public prosecutor referred to in paragraph 2-bis or of the national anti-mafia prosecutor. The national anti-mafia prosecutor, the prosecutor referred to in paragraph 2-bis, the general prosecutor at the court of appeal, the prisoner, the internee or the defense attorney may, within ten days of its communication, file an appeal in cassation against the order of the court for violation of the law. The appeal does not suspend the execution of the provision and is transmitted without delay to the Court of Cassation. If the appeal is accepted, the Minister of Justice, if he intends to issue a new provision pursuant to paragraph 2, must, taking into account the decision of the supervisory court, highlight new elements or elements not assessed in the appeal";
2-septies. For the participation of the prisoner or internee in the hearing, the provisions of article 146-bis of the implementing, coordination and transitional provisions of the code of criminal procedure, pursuant to legislative decree 28 July 1989, n. 271, shall apply.
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