Court of Cassation

Emotional ties are also permitted for prisoners who married in prison without having lived together beforehand

The right to private visits cannot be denied on the grounds of previous serious offences or the absence of a previous cohabiting relationship

by Patrizia Maciocchi

24 June 2026

4' min read

Translated by AI

Versione italiana

4' min read

Translated by AI

Versione italiana

The fact that there was no previous cohabitation is not sufficient to rule outintimate encounterswith the woman whom the prisoner married whilst in prison. The Court of Cassation has therefore upheld the appeal against the refusal of a private visit requested by the man. With a ruling that upholds the guidance of the Constitutional Court as well as that of the ECHR, the Supreme Court notes that ‘a sentence that prevents the convicted person from expressing normal affection towards their partner results in a detriment to the relationships in which their personality develops, leading to a progressive deterioration until it breaks down, which risks provingunsuitable for therehabilitative purpose towards which prison treatment must necessarily be directed”.

The right to private and family life

The judges of the Court of Cassation point out that the mandatory nature of the visual monitoring of the conduct of interviews is also contrary to Article 8 of the ECHR, due to a ‘lack of proportionality with its objectives, however legitimate, thereby compromising the right to respect for private and family life’, where the necessity of the restrictive measure for the purposes of maintaining public order and preventing crime cannot be verified in practice.

The European Court, whilst ruling out the possibility that the Convention requires Contracting States to provide for long-term visits – as the matter is left to their discretion – nevertheless affirmed the need for the prohibition to be laid down by law and for abalance between the authorities’ interest in prohibitingintimate visits and, on the other hand, the rights of prisonerswhich are protected under the Convention. This balancing act, as is customary, is primarily left to the national authorities, taking into account the specific characteristics of the various legal systems, but is nonetheless subject to European scrutiny regarding the proportionality of state interference.

The Constitutional Court has adopted a more progressive approach. In generally permitting intimate visits (except in the case of special detention regimes), the Constitutional Court has definitively redefined ‘private’ visits as a matter of personal rights, distinct as such from any system of rewards, stating that ‘it is nevertheless necessary to ensure the privacy of the room in which the visit takes place, which, to allow for the full expression of affection, must be shielded not only from internal observation by prison staff – who will therefore only monitor from outside – but also from the view of other prisoners and those visiting them’. Finally, the Court provided for exceptions only where justified by security reasons, the need to maintain order and discipline, or judicial grounds.

Security reasons

The case law of the Court of Cassation, following the lead of the Constitutional Court, has held that requests for ‘private’ visits may specificallybe refused on security grounds, for the purposes of maintaining order and discipline, due to the prisoner’s own misconduct, or for judicial reasons, in the case of a person who is still a defendant.

The decision to refuse visits must therefore be based onnon-abstract assessments of the prisoner’s capacity to commit further offences . These assessments must not be based solely on the prisoner’s criminal record, pending legal proceedings or the seriousness of the offences for which they are serving a sentence, but on a prediction of the current risk, derived from facts; having assessed these, it may be concluded that the requested visit ‘may undermine specific security requirements or, in any event, adversely affect the maintenance of order and discipline within the institution’.

Whereas, in the case of accused prisoners, who are therefore subject to a custodial precautionary measure, as in the case under consideration, specific judicial objectives linked to the criminal proceedings still pending against them apply as grounds for refusal, in addition to those just listed, just as they do for ordinary visits.

A stable emotional bond

The court which refused the visit emphasised the provision stating that, ‘before authorising the private visit, the prison governor, in addition to checking for any judicial prohibitions preventing the prisoner from having contact with the person with whom the visit is to take place, shall also ensure that the condition of a stable emotional bond, in particular the fact that the couple have actually lived together in the past.

However, the Court erred both with regard to the prisoner’s actual dangerousness and the requirement of cohabitation. The former was inferred solely on the basis of his numerous and serious final convictions, whilst only incidental mention was made of the charge for which he is currently awaiting trial. This assessment fails to specify the particular security or preventative reasons that would constitute a genuine obstacle to the conduct of confidential interviews.

As regards the requirement of having previously lived in a stable relationship with the person with whom the interviews were requested, the order is flawed due to a breach of the law resulting from a misinterpretation of the Constitutional Court’s ruling.

The trial judge took into account only the formal fact that the applicant’s marriage was solemnised in prison and, consequently, the absence of prior stable cohabitation between the spouses. However, the Constitutional Court also made specific reference to the scenario in which a prisoner has contracted marriage whilst in prison, clarifying that with the ‘marriages in name only’, the denial of leave or other rights constitutes a violation of the dignity of the spouses, but also an internal contradiction within the legal framework, since an unconsummated marriage is grounds for dissolution or the cessation of the civil effects of the marriage.

The celebration of a marriage in prison cannot, therefore, be regarded as an obstacle to the granting of a private visit. Indeed, the overall interpretation of the Constitutional Court’s ruling excludes the need to assess the existence of prior cohabitation ‘or, in any event, the prior stability of the emotional bond, which is, however, deemed necessary in the case of relationships that are not formalised as more uxorio’.

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