Court of Cassation

It is not up to the prisoner to prove that the prison is overcrowded

But it is up to the authorities to prove otherwise. To claim compensation, the prisoner simply needs to state the period and the name of the facility. Data from Antigone

by Patrizia Maciocchi

12 August 2026

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Man in prison hands of behind hold Steel cage jail bars. offender criminal locked in jail. Getty Images

4' min read

Translated by AI

Versione italiana

Key points

Hygiene and health standards
Barrier-free access to compensatory measures
Is what the prisoner claims the truth?
The case of the prisoner punished for opposing a reduction in his living space is before the Constitutional Court

4' min read

Translated by AI

Versione italiana

It is not for the prisoner – who is seeking compensation for inhuman and degrading treatment - to prove overcrowding; rather, it is the prison administration that must demonstrate compliance with the parameters set out by the ECHR, starting with the minimum living space of three metres. According to the Court of Cassation, it is a duty to facilitate access to compensatory remedies by reducing the situation of objective disadvantage in which those in detention find themselves when seeking to assert their rights.

The Supreme Court has thus upheld an appeal lodged by a prisoner against the decision by which the supervisory judge had, without carrying out any investigation, labelled his claim for compensation as inadmissible, because he had not specified the particular conditions of his prison treatment which had been in breach of Article 3 of the European Convention on Human Rights, concerning the prohibition of torture and inhuman or degrading treatment.

Hygiene and health shortcomings

The Court of Cassation has upheld the defence counsel’s argument. The application referred, in fact, both to the period of detention, in respect of which the claim for compensation had been made, and to the prisons in which the appellant had been held. This claim for compensation was justified not only by the failure to comply with the minimum square metre requirements for prison cells, but also by the lack of the most basic hygiene and sanitary conditions. Added to this were poor lighting, the lack of heating and hot water and the absence of healthcare staff.

Barrier-free access to compensation schemes

A situation which neither the prisoner nor his defence counsel could describe in detail, as they lacked the evidence to prove the breaches. This information, however, is held by the Prison Service. It can therefore forward it to the supervisory judge, who, in any case, has the power to obtain it of their own accord. The prisoner need only state the dates and the location. The Court of Cassation points out that a breach of Article 3 of the ECHR entitles the prisoner to compensation, calculated on the basis of the period spent in conditions not in accordance with the Convention’s standards, or to a reduction in their sentence. The prisoner must have access to these remedies without undue obstacles.

Is the prisoner’s claim true?

The judges of the Court of Cassation therefore state that there is a presumption of truth regarding the statements made by the detainee, by virtue of which it is incumbent upon the prison authorities to provide evidence to the contrary. This burden of proof must take into account ‘on the one hand, the interests at stake of a constitutional nature and, on the other, the position of procedural disadvantage in which the prisoner finds themselves’. Consequently, the court must take steps to verify compliance with the obligations which the appellant considers to have been breached.

The decision of the Court of Cassation is consistent with the principles established by the European Court of Human Rights, which not only urged Italia to take action to reduce the prison population by making greater use of alternatives to imprisonment, but has also called on it to introduce procedures that prisoners can initiate to remedy conditions of detention or treatment in prison that contravene Article 3 of the ECHR, which must be accessible and effective. This call sets out the criteria to be followed: the prisoner has the right to obtain the remedies provided for by law, without encountering obstacles that are difficult to overcome.

Data on overcrowding

The Supreme Court’s ruling comes just a few days after the Antigone report, which dramatically highlighted the problem of overcrowding, which has reached record levels. As at 30 April this year, there were 64,436 people detained in Italian prisons, compared with a statutory capacity of 51,265 places, which is reduced to just 46,318 places actually available. The actual overcrowding rate has thus reached 139.1%. There are now 73 prisons with an overcrowding rate of 150 per cent or higher, whilst in 8 prisons the rate even exceeds 200 per cent. There are just 22 non-overcrowded prisons in the whole of Italia.

Although the government has announced a Prison Plan, the number of available places has fallen by 537 since the plan was launched. Within the detention wings, “the shortage of fans and fridges and the complete lack of air conditioning in the cells make prison an experience bordering on survival for both the prison population and staff”, writes Antigone in its report. ‘Over the last 12 months, the Association’s Observatory – as stated in the report – has carried out 72 visits to Italian prisons. This work revealed that 9.3 per cent of prisoners have serious psychiatric diagnoses, 20.5 per cent regularly take mood stabilisers, antipsychotics and antidepressants, and 46 per cent use sedatives or hypnotics. Mental distress and the use of psychotropic drugs are extremely widespread.”

The case of the prisoner punished for opposing a reduction in his living space is before the Constitutional Court

Meanwhile, news has emerged in recent days that the case of a prisoner at the Due Palazzi prison in Padua has been referred to the Constitutional Court; the prisoner had been punished with 10 days’ exclusionfrom recreational and sporting activities for having protested and opposed the management’s decision to place a second bunk bed in his single cell, thereby reducing his living space below the legal limits. The man appealed to the court, but the sanction was enforced immediately due to automatic legal provisions, bringing the case to the attention of the Constitutional Court because the disciplinary penalty had not been suspended pending the judgement.