ANNEX - CASE STUDIES ON GOOD PRACTICES
different institutions: the Ministry of Justice
had 750 people on the waiting list, while the
Conference of the Regions and Autonomous
Provinces had 568 on the same date, and a
further 103 people who could not be placed
in REMS because they were in prison or
because they could not be found. While this
might appear a mere numerical difference,
in reality, it is a more general indicator of a
communication difficulty (that becomes a
management one) between the institutional
actors involved. The average time spent on
the waiting list is indicated in the Report
as 304 days; however, further clarification
is needed. The REMS system, belonging
exclusively to the National Health Service, is
organised on a regional and provincial basis
(for the autonomous provinces); it follows as also stated in the Report - that the 304
days of waiting represent a national average,
since there are very deep differences from
Region to Region. In some regions the
phenomenon of waiting lists seems to be
marginal, while five regions (Sicily, Apulia,
Campania, Calabria and Latium) seem to
have the longest waiting times and also the
largest numbers (172 people waiting in Sicily
alone). It is worth noting the existence of
the requirement of territoriality with regard
to placement in REMS, which means that it
is unlikely that a person will be placed in a
REMS in a Region other than their Region
of residence (as of 31 July 2021, only 19
out of 596 persons were in this condition).
As of 31 July 2021, there were 61 persons
in prison on the waiting list for a place in
an REMS, none of whom according to the
DAP were placed in hospital psychiatric
services (ex Art 286 CPP). In the Report,
as cited in the Court's judgement, there is
also a significant decrease in the number of
prisoners waiting for a place in the REMS
from 98 on 28 October 2020 to 35 on 25
October 2021. Between 20 June and 25
September 2021, according to the DAP 15
probation orders were issued in favour of
people on the waiting list for placement in
REMS and previously detained in prison.
In the Report, the Ministries identified some
of the difficulties encountered by the system up to that time; the Ministry of Justice
summarised the limitations of the system
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in the lack of places in the REMS and the
difficulty of communication between the
actors involved. For the Ministry of Health,
the limitations were to be found in the
culture of the operators (health workers,
judiciary and prison workers).
Following the reception of this report, the
Constitutional Court, in Judgment No. 22
of 2022, while recognising the constitutionality of Law No. 81 of 2014 and therefore
judging positively the path of abolition of
the OPG, nevertheless indicated some
friction points with the constitutional
principles. It indicated in particular the need
to promptly execute the judicial measures
andto address the problem of the waiting
list, thus referring detailed analyses and
solutions to the various institutional actors
and not excluding, indeed hoping for a new
legislative intervention.
Indeed, the Court calls for a comprehensive
and urgent reform of the system, which
would ensure that the admission to REMS
'has an adequate legal basis', ensuring at
the same time 'the development and proper
functioning, throughout the national territory, of a sufficient number of REMS to
meet the real needs, in the framework of
an overall and equally urgent development
of facilities on the territory able to ensure
alternative interventions adequate to the
needs of treatment and to those, equally
essential, of protection of the community'.
A critical passage of the Court's motivations concerns the nature of the custodial
security measure that currently combines
deprivation of liberty and coercion of
treatment. An interpretation that raises
many perplexities because for the offender
with an intellectual or psychosocial disability the Laws No. 180 of 1978 and No.
219 of 2017 do not apply, but even more
so because on the psychiatric medical
level there can be no treatment without
consent, participation, responsibility
and the prospect of freedom. If such an
interpretation of the security measure
were to persist, it would open a question
mark over the meaning of the Health care
management of REMS.
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