In Italy, little is known or spoken about the supervisory magistrate. It is a difficult job that begins when a prisoner starts serving his sentence. For the general public, the punishment and the prison are sufficient, but what happens next, and how difficult but also rewarding it is to make the Constitution’s mandate that the sentence is not only an expiation but also a path to reintegration into society a reality? We live in an era when a newspaper headline is all that is required to define a guilty person, pronounce a sentence, and turn the page. Nonetheless, there are complex realities that belong to the law and the Constitution, which define the concept of Justice as a whole.
The Eurispes online magazine’s pages feature an interview with Dr Giovanna Di Rosa, President of the Supervisory Court of Milan, on the issue of the Supervisory Magistracy. She was a member of the Superior Council of the Magistracy from 2010 to 2014. She was appointed speaker at the Scuola Superiore della Magistratura after authoring numerous articles on detention issues.
President, what is the role and identikit of a Supervisory Magistrate? A straightforward question to try to understand one of the Judiciary’s less discussed roles.
The Surveillance Magistrate, like all others, is a magistrate whose primary duties are defined in the Penitentiary Regulations Law No. 354 of 1975, which closely governs rules and rights of prison life. In some cases, he decides alone, such as on prisoners’ leave of absence in cases of necessity, provisional applications of alternative measures, compensation requested by prisoners in cases of imprisonment contrary to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, he protects the rights of prisoners inside the detention centre, deciding on complaints relating to their violations, supervises the prison and its compliance with the rules, while informing the Minister of Justice of any organisational needs and weaknesses and deals with security measures.
The Supervisory Court is the collegial body, competent for the most delicate issues, and the second instance judge of the Supervisory Magistrate’s decisions, who, in the latter case, will be unable to personally compose the panel due to obvious incompatibility issues. In addition to the two Surveillance Magistrates – one of whom chairs the panel – two expert members are chosen from among sociologists, psychologists, criminologists, and doctors to provide professional input into the decision making.
Its task is to determine the most appropriate method of carrying out the sentence in all of its aspects and declinations, following the constitutional principle outlined in Article 27, paragraph 3 of the Constitution, which states that punishment cannot consist of treatment that is contrary to the sense of humanity and must aim to re-educate the convicted person. By sentence I mean not only imprisonment, but also financial penalties. Furthermore, the Supervisory Magistrate decide on the applications from convicts who report being in financial distress and unable to pay the costs of their trial – which may amount up to millions of euros – as well as the costs of keeping them in prison.
The Supervisory Magistrate’s range of competencies is thus extensive. It covers the entire field of the outcome of criminal proceedings, up to and including rehabilitation, which falls within the competence of the Supervisory Court and allows the removal of offences from the convicted person’s criminal record.
As a result, the Supervisory Magistrate, not the administrative Authority, decides on a prisoner’s fate.
Precisely, the legislative system desired to entrust to a magistrate, rather than the administrative Authority, every decisional aspect concerning the content of the conviction sentences – with none being excluded. This explains the profound significance that the then-legislator attributed to this function. The Supervisory Magistrate’s role is thus critical in giving meaning and context to the imposed sentence in all of its contents, which has not actually concluded the path of the convicted person because has not yet been executed. Alternative measures can be used to serve prison sentences of less than four years. Still, favourable external conditions (a home and, in some cases, a job, or at least economic autonomy) and prognostic evaluations by the Supervisory Magistrate are required before the measure can be granted. Other, more severe sentences impose legal time limits on the length of time served to qualify for so-called prison benefits. Once these limits have been exceeded, it is necessary to verify the concrete treatment of the convicted person, taking into account the time since the commission of the offence, to reach a decision on the exclusion of social dangerousness and the merits of what is requested.
This is a very detailed assessment because it is obviously challenging to objectively evaluate a person’s inner journey to understand whether they have made progress to begin external rehabilitation.
Therefore, the Supervisory Magistrate is in charge of overseeing the prisoner’s reintegration into society, with the sentence served only being a part of the process.
Let us recall that the sense of the function of surveillance is the reintegration of the person through re-education so that the sentence serves and helps return a different person to society. We use the reading of all the documents present to carry out this function, beginning with the ruling, the penal certificate and the pending charges, the police information, and anything else provided for by law. Still, then we come to the reading and study of the documents that trace the inner path of the person, including any path made for the victim and as reparation, as With the presence of experts within the prison, who conduct repeated interviews with prisoners and observe them throughout their journey, the prison compiles scientific observation reports of the personality. The combination of these elements, combined with direct knowledge and verification by the Supervisory Magistrate entrusted with the prisoner’s individual case, leads to a decision that, once again, is highly complex.
Why one choose this position in the Magistrates’ Court? What are the motivations for embracing such a complex world?
I personally decided – after working for a long time in other judicial functions – to call the Surveillance Court because of my experience during an application, which I found very interesting.
It is a role that necessitates a constant challenge, one that is linked precisely to the commitment that it absorbs and that concerns the achievement of an ideal of effective justice, the one that leads to the erasure of the caused evil, even very serious evil, restoring the State’s victory without the loss of another life, that of the convicted. The interconnection with other human sciences such as psychology, criminology, and so on is another feature that piques people’s interest.
There have been many talks recently about 41 bis and life imprisonment; what are the daily difficulties that a Supervisory Magistrate faces in this context?
The most challenging aspect is verifying the personal situation to truly understand the re-educational path taken by the individual convict. In some cases, the rules in force do not permit the admissibility of petitions, so one cannot enter on their merits. In the grand scheme of things, acquiring all of the investigation documents is a significant contribution. Still, restorative justice could also be entrusted as a possible response channel for the decision on the man’s actual change, in addition to the more careful observation carried out in prison. The real issue is the legislator’s strategy for dealing with these situations, taking into account the cultural debate over the effectiveness of re-education in some cases and, as I mentioned before, the existence of the constitutional provision.
Is the possibility of re-education an illusion, or is it a definite possibility that a democratic State must provide first for itself before providing for the convicted person?
Without a doubt, the second. It is mandated by the Constitution, and it alone ensures social peace following a crime. Entrusting society’s response to the offence to mere detention without caring to provide an alternative committed to preventing the recurrence of the crime is not solving a problem but simply removing it. To give peace to the victims of crime, it is necessary to think from the perspective of re-education: the new answers of restorative justice will allow the victims to make peace with the same society, which thus commits itself to them, and lasting attention from the State, which is not that of vengeance. Of course, commitment, investment, and resources are required in both probation offices and penitentiary institutes, as well as the UEPE (External Criminal Execution Office).
What is the story that has struck you the most, both positively and negatively, in the world of Italian prisons, and what can we do to ensure that this world is not forgotten, based on your extensive experience in this field?
There are many good stories, but they are unknown because the good is not heard, it does not make noise and thus does not make headlines, and it is not published in newspapers.
This is why our supervisory function, which represents the ‘good face’ of justice, the one of reconstruction, which comes after the sword that cuts in the classical depiction of justice, is so little known. However, the recoveries are very numerous, the revocations of alternative measures are very low (in the order of 3-4% yearly, and some of them for not guilty events), and the absence of recidivism is very high (around 80%), but only if the option of serving a sentence in an alternative measure is offered, essentially proposing a model of legal life. A recent example is a Bollate inmate who invented a method to trace waste and encourage differentiated waste collection, demonstrating talent and providing usefulness to society, thus drawing enrichment from all of its components and always. Starting with the recognition of man’s good nature and the pursuit of this nature, it is then up to the institutions’ commitment to ensure a system that ensures that everyone, including those who have not had the opportunity and have thus made mistakes, can make an honest living from their work and live in decent human conditions. The negative stories are those I see when I observe the behaviour of outsiders and third parties who are prejudiced simply because they are in contact with a prisoner during contacts and meetings with prisoners. This demonstrates that there is still a preconception that needs to be overcome. How else will people who have committed crimes be able to reintegrate once they have served their sentences?