By Anita Bonfiglio (researcher at L’Altro Diritto), Maria Cristina Frosali (researcher at L’Altro Diritto) and Sofia Ciuffoletti (coordinator, L’Altro Diritto).
In Italy, a supervisory judge referred to the Constitutional Court a question concerning the constitutionality of recent amendments depriving prisoners subject to the 41-bis special regime of eligibility for prison leave until the regime has been revoked.
On March 31, 2026, the supervisory judge of Spoleto (Umbria) referred to the Constitutional Court a question concerning the constitutionality of amendments introduced by Law No. 199/2022, which prevent supervisory judges from examining on the merits applications for prison leave submitted by convicted prisoners subject to the 41-bis regime, a highly restrictive special prison regime applied to detainees suspected or convicted of offences linked to organised crime.
The question concerns specifically Article 4-bis, paragraph 2 of the Prison Law (Ordinamento Penitenzario O.P.), which renders such applications inadmissible solely on the basis of placement under this special regime, that is of an administrative measure, as the 41-bis regime is applied and extended by decree of the Ministry of Justice. Consequently, this administrative decision no longer entails only restrictions relating to the day-to-day conditions in which the sentence is served, but also affects a qualitative aspect of the sentence, altering the degree of personal liberty granted to the prisoner, ultimately impacting the constitutionally protected rehabilitative aim of imprisonment. According to the referring judge, such an alteration cannot be imposed outside the constitutional principles governing restrictions on personal liberty, according to which no such restriction is permitted in the absence of a reasoned judicial decision and only in the cases and in the manner provided for by law.
According to the referring judge, the fact that supervisory judges can no longer examine on the merits applications for prison leave submitted by convicted prisoners subject to the 41-bis regime is also significant from the perspective of the rehabilitative function of punishment. A decision on the merits, unlike a mere finding of inadmissibility, “takes on an essential rehabilitative significance” because it explains “the reasons why the requested prison benefit cannot be granted” and thus “engages concretely with the applicant’s circumstances and indicates the pathways through which a rehabilitative process may begin or deepen, fostering that dynamic of dialogue between the convicted person and the supervisory judge which can contribute to the person’s resocialisation, even when they are among the most dangerous.”
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