The right to cultivate family affection: commentary on judgment no. 46809 of 2024

The Court of Cassation, with judgment no. 46809 of November 21, 2024, addressed a highly relevant issue in the field of criminal law and criminal execution: the right of the inmate to maintain affective ties with family members, even when they are also subjected to a special detention regime, such as that provided for by Article 41-bis. This article analyzes the content of the judgment, highlighting the legal and practical implications.

The differentiated prison regime and the right to affection

The differentiated prison regime referred to in Article 41-bis of Law of July 26, 1975, no. 354, was established to ensure public safety in particularly sensitive situations. However, the Court emphasized that the right to cultivate affection with family members is an essential element of the inmate's rights. This right cannot be denied, even when the family member with whom one wishes to communicate is also subject to this regime.

Differentiated detention regime pursuant to art. 41-bis of the prison regulations - Right to cultivate family affection - Existence - Visual visits with relatives subject to the same regime - Admissibility - Conditions. Regarding the differentiated prison regime pursuant to art. 41-bis of Law of July 26, 1975, no. 354, the right to cultivate family affection through visual visits pertains to the essential core of the inmate's rights, and therefore can be recognized even when the family member to be met is also subject to the special regime. However, a concrete balancing judgment must be made between the affective needs of the detained person and public safety requirements, which, if deemed prevalent, do not allow this right to be satisfied, not even through audiovisual means.

Balancing affection and security

The judgment highlights the need for careful balancing between the inmate's affective needs and public safety requirements. Although the right to affective communication is a fundamental right, it must be exercised in compliance with safety regulations. This means that, in some cases, safety requirements may prevail, limiting access to visual visits. It is crucial that the supervisory judge assesses the circumstances on a case-by-case basis, considering both the inmate's rights and safety needs.

• The right to have visual visits is essential for the inmate's psychological well-being.
• The balancing must be carried out on a case-by-case basis, based on specific conditions.
• The judgment is part of a broad jurisprudential context that recognizes the importance of inmates' rights.

Conclusions

In conclusion, judgment no. 46809 of 2024 represents a significant step towards recognizing the right of inmates to cultivate affection, even in high-security contexts. While respecting public safety needs, it is essential to ensure that inmates can maintain family ties, which are crucial for their social reintegration and psychological well-being. Italian jurisprudence continues to work towards a balance between individual rights and collective security, a matter of fundamental importance for our legal system.