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Italy / Constitutional Court / 76/2017

Surveillance Court of Bari (Tribunale di Sorveglianza di Bari) v Italian Government

Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Decision date:

Key facts of the case:

The Surveillance Court of Bari questioned the constitutional legitimacy of art. 47 of the Law No. 354 of 26 July 1975, on “Dipositions concerning the penitentiary system and on the execution of measures depriving people of their personal freedom”, which excludes those mothers condemned for specific criminal offences – such as terrorism – from the possibility of serving their sentence outside the prison in order to adequately take care of their children. According to the Court of Bari this disposition violates the principle of the child’s best interest protection and arts.3, 29, 30 and 31 of the Italian Constitution.  

Outcome of the case: 

The Constitutional court – considering that the principle of the protection of the child’s best interest is guaranteed both by the Italian Constitution and by many international legislative dispositions Italy is bound to – decided that the above-mentioned legislative disposition does not allow a proper balance between the need to protect children and families and the need to protect public security because it completely excludes from the possibility to serve part of the sentence outside the prison facilities for those mothers who are condemned for specific criminal offences. According to the Constitutional Court, each case should be assessed on an individual basis: prisoner mothers whose children are aged less than 10 should be guaranteed the possibility to serve part of their sentences outside prison without considering the type of criminal offence they are condemned for, in case the Court considers that there is not an actual possibility of repetition of the offence or of absconding. For these reasons, the Constitutional Court considered the above-mentioned legislative disposition as illegitimate because it violates art. 31.2 of the Italian Constitution.