SCARCERATION AT THE TIME OF CORONAVIRUS: Home detention under Decree Law no. 18/2020 (so-called Cure Italy Decree)

The need to introduce extraordinary measures to contain the Covid-19 health emergency prompted the government to include regulations to intervene in the prison system as well.

The model considered is the one already provided in Decree Law no. 199/2010 (so-called Empty Prisons Decree) that is, the possibility of executing prison sentences, even if constituting a residual part of a greater sentence, in places outside prison (at home or other public or private place of care or assistance).

With the decree under comment, the government has thus introduced a measure of sentence enforcement at home that differs from the model provided by Decree Law no. 199/2010 for shorter duration of the sentence to be executed, for the procedure and for the prerequisites for access to the institution, so that it can be considered that a different measure of execution of the sentence has been introduced (albeit temporally and aimed at the current contingency).

First, with regard to the remaining sentence, the measure stipulates that those convicted with a remaining sentence of eighteen months to serve are eligible for the benefit of serving the sentence at home or other public or private place of care, assistance or shelter.

With reference to the procedure, the decree provides for the application of the measure by the Supervisory Magistrate of the place of execution of the sentence, at the request of the convicted person, including through his or her defense counsel.

In order to simplify the tasks as much as possible, the decree stipulates that the Supervisory Magistrate must rule by order adopted in chambers, without the presence of the parties, with the time limit for ruling reduced to five days (Decree Law No. 199/2010). In addition, the prison administration is relieved of duties and activities where it is dispensed from preparing the report on conduct while in custody and only has to indicate the external place of detention after verifying the suitability of the offender, the attestation of all the prerequisites that the law introduces, as well as the actual consent given by the offender to the application of the control procedures.

After the Supervisory Magistrate’s decision, the Chancellery of the probation office shall, within forty-eight hours, notify the correctional institution of the order, which shall arrange for release.

Individuals convicted of certain serious crimes (mafia crimes, family abuse, stalking acts), habitual, professional or trendy offenders, inmates under special supervision and inmates without actual domicile are not eligible for the measure.

Likewise, inmates who have been sanctioned for certain disciplinary infractions in the past year and those who have been involved in riots and disturbances in correctional institutions as of March 7, 2020, are not eligible.

In the case of juvenile offenders or individuals with sentences to be served of more than six months, the procedure of control by electronic means shall be arranged.

Finally, due to the temporal nature of the measure, the institute applies only from the effective date of the decree until June 30, 2020.