The prison drama is incontrovertibly: to solve it, a pardon is needed. Perhaps to be combined with a reform of preventive detention, in the rejection of double standards legislation.
On July 10th, the Chamber of Deputies repealed the crime of abuse of office. Thus, after 12 hours of uninterrupted work, the Nordio reform. A highly questionable result, achieved by also optimizing the massive propaganda, focused on the need to protect the mayors who were afraid of being investigated for abuse and on the few convictions that would have marked the life of the penal model. That it was propaganda, is clear.
Abuse of office does not only concern mayors, but all public officials, responsible for abuses: magistrates who favor or harm someone, doctors who do not respect waiting lists, especially administrators of public or para-public bodies – of party designation – who facilitate the entrepreneur or the professional of the same political party. It is above all the need to ensure impunity for this category of subjects that, together with the reduction of illicit influence peddling, has inspired the barbaric abrogation of the crime in question. With all due respect to the historical rationale of this penal model, as well highlighted in the words reported below by Professor Padovani: “Abuse of office is a safeguard of the rule of law; it was born with the French Revolution to protect the citizen against abuses of authority. Eliminating it means regressing to a pre-modern stage; it means transforming public power into an arbitrary discretion of the public official who will be able to boast of having transgressed (…)” – without – “no one will be able to say anything”.
Moreover, if we look closely, the criticised legislative license also runs the serious risk of running into questions of constitutional legitimacy from the perspective of the art. 11 e 117 Cost., noted that the death of abuse of office seems to violate the Merida Conventiondesigned to combat all forms of corruption. More precisely, its Article 19, which does not oblige, but nevertheless encourages, the introduction of this crime into the legal systems of the States party to the Convention that did not contemplate it. Unlike, therefore, ours, in which it was already included: hence also the contextual derived violation of theart. 31 from the Vienna Convention, which requires interpreting in good faith the International treaties ratified. In any case, it is undeniable that the new legislation, in practice, has led to the issuing of a disguised amnesty, hastily decided, valid for over 3,000 people definitively convicted.
In parallel, there is the neglected tragedy of prisons. As of August 18, there were 61,464 inmates in 46,898 regularly available places: that is, 14,566 more inmates and an average overcrowding rate of 131.06%, with peaks that exceed 150% in 50 institutions, 190% in 5 institutions. Significant overcrowding also in prisons for minors. In the face of over 14,500 more inmates, there are 18 thousand fewer penitentiary police officers than the planned staffing plan. In 2024 alone, as of August 31, 67 inmates took their own lives. There were also seven suicides among the penitentiary police. This is the summary of the unlivability of prisons, lacking space and hygiene. And yet l’art. 27 Cost. wants that punishments cannot consist of treatments contrary to the sense of humanity and must tend to the re-education of the convicted. Principles that the current Keeper of the Seals, in 2023, claimed to ensure with the recovery of the abandoned barracks; today, with new prison building, with the sorting of the “toxic” in community and with the repatriation of foreigners in vinculis. It is a pity that, having forgotten the project of the barracks, it is not explained how to make the timing of the realization of the new solutions coexist – if practicable – with the explosion of the penitentiaries.
In the meantime, it is not cultivated Giachetti’s proposal, which would raise the period to 75 days per semester early release. Nor is restorative justice implemented in the executive phase, written on ice by the Cartabia Conversely, one tries to introduce with the safety package two new penal models, which regulate acts committed in prison and in reception centers, qualifying as revolt even passive resistance or refusal to an order (even to return to the cell). Order and discipline, enforceability of the sentence are the dogmas to be complied with, regardless. Lightning attention, to repress abuse of officeto water down the illicit influence peddling and to eliminate the related sentences, is “something else”. The drama of prisons is however, incontrovertibly, “the thing”: and to solve it you need to the pardon, which guarantees immediate solution effects. Perhaps to be combined with a pretrial detention reformto be reduced to the bone. In the restoration of the guaranteeism. And in the rejection of double standards legislation.
*President of the Criminal Chamber of Terni