Judgment No. 18 of 2020

Marta CARTABIA, President, Marta CARTABIA, Author of the Judgment

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The Court declares unconstitutional a number of provisions on special house arrest, insofar as they only apply to female inmates having children under the age of ten, and do not apply to incarcerated mothers with severely disabled children of any age. In fact, the Court considers that the limit of ten years of age violates the constitutional principles of equality, reasonableness and protection of the fundamental rights of the human person (Articles 2 and 3 of the Constitution), along with those laid down in Article 31(2) of the Constitution (also invoked by the referring court), which provides for the protection of maternity, that is the bond between mother and child, which cannot be considered to end after the initial stages of the child’s life. These principles require providing for alternative measures to detention having the principal purpose of protecting the child, an innocent third party requiring daily relationship with and care from the inmate; principles that must also apply to situations involving a severely disabled child, who is always in a particularly vulnerable physical and psychological state irrespective of his or her age. In fact, experience shows that the life circumstances and health of persons with a severe disability tend to deteriorate further as they advance in age. As a result, making the prison benefit concerned conditional upon a parameter related only to age is unconstitutional where a severely disabled person is involved. It must also be noted that according to the Constitutional Court’s case law, human relationships, including in particular family ones, are decisive factors in the full development and effective protection of the most vulnerable people. In fact, this Court has consistently held, in a rich line of settled case law, that “ensuring full protection for weaker individuals” also requires “continuity within the constitutive relationships of the human personality” (Judgment no. 203 of 2013). Moreover, it has also reiterated that the right of a disabled person to “receive assistance within the context of his or her life community” constitutes “the fulcrum of the protections established by the legislator, with the aim of removing the impediments liable to prevent the full development of the human person” (Judgment no. 232 of 2018). It need hardly be added, the Court notes, that the declaration of unconstitutionality does not impinge upon the further prerequisites for granting the measure according to which female inmates will be eligible for house arrest in their own home, in another private residence, or within a facility offering care, assistance or hospitality only “if there is no tangible risk of the commission of further offences”.