Wine and beer in prison are not part of a prisoner’s inalienable rights
Alcoholic drinks are not covered by the right to a healthy diet, despite a decree by the President of the Republic permitting their consumption in moderation
Key points
The consumption of alcoholic drinks does not fall within the right to healthy nutrition , nor within any other subjective right that can be enforced before a court. It is merely the desire for a non-essential or non-indispensable life good. On the basis of this principle, the Court of Cassation upheld the appeal lodged by the prison and the Ministry of Justice against the supervisory judge’s authorisation for the purchase and consumption of alcoholic beverages – as requested by a prisoner – within the limits permitted by a decree of the President of the Republic from 2000.
The Presidential Decree opening up the market to wine and beer
Under Article 14, in fact, whilst the presidential decree prohibits the bringing of alcoholic drinks into prisons from outside, it permits their purchase within the prison. Consequently, prisoners are permitted to consume up to half a litre per day of wine with an alcohol content not exceeding 12 per cent, and one litre per day of beer. The prisoner considered this provision to have been breached by the restriction imposed in the maximum-security prison where he was being held. For the Supreme Court, however, the refusal is legitimate and correctly justified. The President of the Republic’s provision in fact permits consumption in communal areas – barring security reasons – whilst in this specific case there were no such reasons; meals were therefore consumed in the cells.
The risks of consumption
This situation made it impossible to ensure effective control over the consumption of alcohol. The possibility of alcohol being brought into detention cells may, in the Administration’s view, lead to a build-up of alcoholic drinks, thereby putting the health of prisoners at risk, particularly for those taking medication. This not only jeopardises security, as it may compromise the ability to control prisoners, increase the risk of aggressive and violent behaviour – which is particularly dangerous in a high-security environment – but also undermines the effectiveness of treatment programmes, interfere with therapies and increase the risk of self-harming behaviour.
Supervisory judge rules that the blanket ban is unlawful
The Court of Cassation considered these to be valid grounds and therefore departed from the decision of the supervisory judge, who had upheld the prisoner’s complaint, stating that Article 14 enshrines a subjective right that may be restricted only for specific reasons relating to individual prisoner. A right that cannot be affected by organisational difficulties.
Furthermore, the blanket ban violates the principles of reasonableness and proportionality, amounting to a sacrifice of the prisoner’s right, in the absence of the adoption – or even the mere trialling – of organisational measures capable of overcoming it. According to the Supreme Court, however, the Supervisory Court did not even have the power to examine the matter, as it did not concern ‘serious and current prejudice to a subjective right’. An appeal to the supervisory judge is, in fact, only admissible to protect ‘subjective legal positions that can be characterised as “rights”, affected by conduct on the part of the Administration from which the prisoner or internee suffers a current and serious prejudice’.
