The Italian penitentiary system, governed by Law No. 354/1975, is based on and aimed at the social and re-educational rehabilitation of prisoners and at their enhancement as persons and citizens, achieved not only through intramural activities but also, and above all, through broader social reintegration. In the aftermath of the Second World War and the Universal Declaration of Human Rights, the essential features that modern penitentiary systems were expected to assume gradually emerged: the humanisation of punishment, the recognition of prisoners’ rights, the scientific study of the offender’s personality, and the provision of individualised treatment, in contrast with a reality historically characterised, continuously since the liberal State onwards, by segregation, violence, and a rigid and hierarchical organisation of the penitentiary administration.

The 1975 Penitentiary Act primarily sought to implement the principle enshrined in Article 27(3) of the Constitution, according to which “punishments may not consist of treatment contrary to human dignity and must aim at the re-education of the convicted person.” This constitutional principle, which may be read as a corollary of the broader principle of solidarity enshrined in Article 2 of the Constitution, constitutes not only the defining element of the enforcement phase of criminal law but also the cornerstone upon which the entire Italian criminal justice system is built. Punishment is understood, within the constitutional order, both as an instrument for safeguarding the inviolable rights of members of society and as a mechanism for fostering the development of the individual and their successful reintegration into the social fabric. This could hardly be otherwise in a legal system grounded in the primacy of the person and their rights, as affirmed by the Constitutional Court in Judgment No. 26/1999 and recently reaffirmed in Judgment No. 10/2024.

Within the Penitentiary Act, the individual and their personal trajectory are placed at the centre of the system, which—at least in theory—must be facilitated through the recognition of specific tools and rights granted to convicted persons, while also setting clear limits on public authority. The conceptual framework underlying the penitentiary system is set out in Article 1(1) of Law No. 354/1975, which provides that “penitentiary treatment must be in accordance with humanity and must ensure respect for the dignity of the person. It is based on absolute impartiality, without discrimination on grounds of sex, gender identity, sexual orientation, race, nationality, economic and social conditions, political opinions, and religious beliefs, and is structured in ways that promote autonomy, responsibility, socialisation, and integration.” Furthermore, paragraph 2 of the same provision states that “treatment aims, also through contacts with the outside world, at social reintegration and is carried out according to a criterion of individualisation in relation to the specific conditions of the persons concerned.”

Treatment is addressed in particular in Chapter III of Law No. 354/1975 (Methods of treatment), whose provisions set out in detail its implementation modalities, related rights, and institutional prerogatives. It is precisely within this section that the first relevant legal reference to religion in detention contexts is found. Alongside education and, above all, work, religion represents one of the historically essential pillars enabling prisoners to rehabilitate and reform themselves. Both in the 1891 and 1930 Prison Regulations, provisions had already been included concerning the (mandatory) participation of prisoners in Catholic religious services and the role of chaplains within the institutional structure of penitentiary establishments. Article 15(1) of the Penitentiary Act therefore includes religion among the elements of the treatment programme, whereby it departs from its traditional functions of social control and authority to assume a more properly spiritual role connected with personal development.

Law No. 354/1975 abolished the compulsory nature of Catholic religious practice: Article 26(1) provides that prisoners “are free to profess their religion, to be instructed in it, and to practise its worship,” thereby reaffirming Article 19 of the Constitution, which guarantees freedom of religion to all individuals (citizens and non-citizens alike, in all circumstances, including persons deprived of liberty). Religious affiliation no longer constitutes, as under the Fascist regime, an element for assessing prisoner conduct.

In continuity with the Italian penitentiary tradition, Article 26(2) ensures the celebration of Catholic rites, while Article 26(4) protects the corresponding right of members of non-Catholic denominations, who may also receive, upon request, assistance from their own ministers of religion.

However, the situation of Catholic prisoners and those belonging to other religious denominations differs significantly: the chaplain remains fully integrated into the penitentiary staff, albeit deprived of administrative functions, and his presence is guaranteed in every prison pursuant to Article 26(3) of the Penitentiary Act and Article 58(4) of Presidential Decree No. 230/2000 (the regulation governing the penitentiary system and custodial measures). Moreover, under Article 67, last paragraph, of the Penitentiary Act, Catholic ministers of religion other than those permanently assigned to an institution may also access prisons, meaning that Catholic inmates may choose between institutional chaplains and other clergy.

While the guaranteed presence of at least one chaplain in each prison institution demonstrates the State’s effective commitment to safeguarding the religious freedom of Catholic prisoners, it also reveals a clear disparity of treatment vis-à-vis adherents of other faiths, who must actively arrange for access by their own ministers of religion. The procedure further varies depending on whether the relevant religious denomination has concluded an agreement (intesa) with the State. In general, access by non-Catholic ministers of religion is subject, upon request by the prisoner or their family, to an ad personam authorisation issued by the Office for Religious Affairs of the Ministry of the Interior (Article 26(4) Penitentiary Act; Article 58(6) Presidential Decree No. 230/2000). Where an agreement has been concluded between the State and a religious denomination, ministerial authorisation is no longer required: denominations provide lists of authorised ministers, territorially organised, who may freely access penitentiary institutions. This regime, which derogates from Article 67 of the Penitentiary Act, was introduced with the first agreement concluded with the Waldensian Church in 1984 and reaffirmed in subsequent agreements.

The same regulatory asymmetry concerns places of worship within penitentiary institutions: while Article 58(4) of Presidential Decree No. 230/2000 provides for at least one chapel for Catholic worship in all prisons, for other religious denominations the allocation of suitable spaces for worship is left to the discretion of prison administrations (Article 58(5)).

This framework appears to generate tensions with Article 8(1) of the Constitution, which establishes the equal freedom of all religious denominations before the law. As in other legal domains—such as the regulation of places of worship and the allocation of public funding—the existence or absence of an agreement (intesa) becomes a preferential factor that, in practice, advantages denominations that have concluded such agreements.

This disparity becomes even more evident when considering statistical data from the Ministry of Justice on the prison population: as of 31 May 2026, out of a total of 64,741 prisoners, 20,350 were foreign nationals. This represents a particularly significant share, accounting for over 30% of the total prison population, within which Moroccan nationals (22.5%) prevail, followed by Tunisian (11.2%) and Albanian nationals (9.6%). In such a heterogeneous context, it is evident that the sole provision of Catholic chaplains in all institutions is insufficient to guarantee adequate religious assistance to all inmates.

Although precise data on religious demand are lacking, it can reasonably be inferred that Muslim prisoners are those most affected by the difficulties described in exercising worship and accessing ministers of religion, given the absence of an agreement regulating relations with the State. In order to facilitate access by Muslim ministers of religion, in 2015 the Department of Penitentiary Administration of the Ministry of Justice (DAP) signed a pilot protocol with UCOII (Unione delle Comunità e Organizzazioni Islamiche in Italia), involving eight prison institutions. The agreement provided that UCOII would communicate to the General Directorate for Prisoners and Treatment the names of volunteers authorised to enter penitentiary institutions. The prisons concerned were also encouraged to organise the provision of suitable spaces to ensure the effective implementation of the protocol.

In 2020, the protocol was confirmed and expanded with the Islamic Cultural Centre of Italy – Grand Mosque of Rome, extending its application to the entire national territory rather than the initial eight pilot prisons.

This experience represents the most recent nationwide initiative aimed at facilitating the entry of Muslim ministers of religion into prisons, as well as the only attempt involving a religious denomination without an agreement with the State. The latest data published on the Ministry of Justice website were updated on 15 January 2020.

Following the outbreak of the SARS-CoV-2 pandemic, the virtuous mechanisms that appeared to have initiated a process of renewal of infrastructures and safeguards for intramural religious pluralism were effectively interrupted, leaving prisoners belonging to non-Catholic faiths without adequate instruments to receive the religious assistance guaranteed not only by Law No. 354/1975 but also by Article 19 of the Constitution.

The current framework highlights the persistent fragility of the Italian penitentiary model in managing religious freedom, which remains deficient in ensuring the effective protection of pluralistic claims and is largely dependent on contingent dynamics, the sensitivity of individual administrations, and the availability of local actors. This makes the structural difficulty of the penitentiary system in translating the principle of equal freedom enshrined in Article 8(1) of the Constitution into effective, uniform, and nationwide administrative practices clearly apparent.

The prison system, far from constituting a neutral space with respect to religion, continues to represent a privileged and critical laboratory for testing the actual resilience of confessional pluralism within the Italian constitutional order.

 

(Focus by Martina Palazzo)

 

Selected bibliography:

 

S. Angeletti, L’accesso dei ministri di culto islamici negli istituti di detenzione, tra antichi problemi e prospettive di riforma. L’esperienza del Protocollo tra Dipartimento dell’Amministrazione penitenziaria e UCOII, in Stato, Chiese e pluralismo confessionale, 2018, 1 ss.

 

E. Di Somma, La riforma penitenziaria del 1975 e l’architettura organizzativa dell’amministrazione penitenziaria, in Rassegna penitenziaria e criminologica, 2005, pp. 1 ss.

 

A. Fabbri, L’esercizio della libertà religiosa in carcere, tra garanzie di sicurezza e finalità rieducative: l’esperienza islamica, in Democrazia e Sicurezza, 2021, 89 ss.

 

E. Fassone, Religione e istruzione nel quadro del trattamento, in V. Grevi (a cura di), Diritti dei detenuti e trattamento penitenziario, Bologna, 1981, 120 ss.

 

G. Fiandaca, Art. 27 3° comma, in G. Branca, A. Pizzorusso (a cura di), Commentario della Costituzione. Rapporti civili, Bologna, 1991, 222 ss.

 

N. Marchei, Il «diritto al tempio». Dai vincoli urbanistici alla prevenzione securitaria. Un percorso giurisprudenziale, Napoli, 2018.

 

N. Marchei, D. Milani (a cura di), Freedom of religion, security and the law. Key challenges for a pluralist society, Torino, 2023.

 

D. Milani, Sicurezza, carcere e religione, in D. Milani, A. Negri (a cura di), Sguardi incrociati nel labirinto della radicalizzazione di matrice religiosa: il progetto Future, Soveria Mannelli, 2024, 135 ss.

 

A. Negri, Radicalizzazione religiosa e de-radicalizzazione laica. Sfide giuridiche per l’ordinamento democratico, Roma, 2022.

 

M. Parisi, La figura dei ministri di culto acattolici delle confessioni “senza Intesa”: Gli orientamenti del Consiglio di Stato tra consistenza numerica dei gruppi religiosi e discrezionalità della Pubblica Amministrazione’, in Quaderni di diritto e politica ecclesiastica, 2014, pp. 373 ss.

 

M. Ruotolo, Diritti dei detenuti e Costituzione, Torino, 2002.

 

M. Venturoli, L’assistenza religiosa nel sistema penitenziario italiano: profili teorici e pratico-applicativi, in L’indice penale, 2008, 529 ss.

 

S. Zambelli, La religione nel sistema penale e tra le mura del carcere, in Quaderni di diritto e politica ecclesiastica, 2001, 455 ss.

 

Selected sitography:

 

Carceri, l'UCOII sigla il rinnovo del protocollo con il DAP del Ministero della Giustizia: https://www.ucoii.org/news/carceri-lucoii-sigla-il-rinnovo-del-protocollo-con-il-dap-del-ministero-della-giustizia

 

Circolare 2 dicembre 2015 - Protocollo d'intesa tra il Dipartimento dell'Amministrazione Penitenziaria e L'Unione delle Comunità ed Organizzazioni Islamiche in Italia (U.CO.I.I.): https://www.giustizia.it/giustizia/it/mg_1_8_1.page?facetNode_1=1_1(2015)&facetNode_2=0_2&contentId=SDC1252173&previsiousPage=mg_1_8

 

Confessioni religiose: https://www.giustizia.it/giustizia/it/mg_2_3_0_5.page

 

Statistiche prodotte dall’amministrazione della giustizia – Detenuti stranieri presenti al 31.05.2026: https://www.giustizia.it/giustizia/it/mg_1_14_1.page?contentId=SST1506501