Prison, urgent leave with easier complaint

Contrasts with the right of defence a term of only 24 hours available to the detained person to challenge the refusal to a request for leave. This was affirmed by the Constitutional Court in sentence no. 78 filed yesterday and written by Francesco Viganò. The question of legitimacy raised by the Court of Surveillance of Sassari was upheld.

In the case at hand, the probation magistrate had rejected a prisoner's request for leave to visit his sister, who was suffering from cancer. The detainee had lodged complaint with the supervisory court on the same day he was notified of the decision, reserving the right to formulate his reasons later. A few days later, his defence counsel had resubmitted the complaint, together with the grounds, after having obtained a copy of the medical documentation that the magistrate had acquired ex officio. The defence counsel's complaint should have been declared inadmissible because it was lodged beyond the twenty-four-hour time limit from the communication of the decision, established by Article 30 bis of the Prison Order Act.

According to the Constitutional Court, this provision is in clear conflict with the right of defence guaranteed by Article 24 of the Constitution: in 24 hours it is difficult for a detained person to obtain assistance from a lawyer, just as it is practically impossible to obtain all the documentation on which the supervising magistrate based his decision.

The Court then took a further step by replacing the 24-hour time limit with the 15-day limit already provided in general for any complaint against decisions affecting a prisoner by Article 35a of the Prison Ordinance. This is without prejudice to the possibility for the legislator to set a different time limit, provided that the new limit does not collide with the right of defence.

It was precisely the centrality of respect for the latter, in the Court's thinking, that led instead to leaving the 24-hour time limit for the prosecutor's appeal unchanged. On the other hand," the judgment emphasises, "the extension of the time limit for the public prosecutor's complaint, in the opposite case in which the prisoner's request is granted, would determine the suspension of the execution of the measure pending the entire new time limit for appeal (...), at least with reference to permits for family events of particular gravity". With an obvious negative consequence for the detained person who would see the urgent reasons underlying the request overlooked.