Abstract

Prison is a setting where violence occurs. It is necessary therefore to investigate "prison in the facts" to understand how the total and separate institution foster the genesis and the concealment of violent actions. This contribution aims to analyze the relationship between prison and torture on the basis of the ongoing talks between knowledge of the positive jurist and the sociological point of view. From this approach can be moved to assess the real effectiveness of the new Italian legislation that made torture a crime as well as the correspondence of the latter to the indications of the Convention Against Torture, of the European Convention of Human Rights, of the Italian Constitution. It is believed that the new legislation does not affect effectively the prevention and repression of torture, as it does not confront itself with the structural characteristics of prison system: asymmetrical interpersonal relations between custodians and guardians, isolation, removal from legal controls. This food of thought starts from the analysis of judicial cases to highlight the areas and relationships of the penitentiary penalty most exposed to the danger of inhuman and degrading treatment and torture. Our idea is to bring out from this analysis the fundamental characteristics of the crime of torture that can be profitably used in the judicial response. Along with significant elements that highlight the particular need (imprescriptibility of the crime) it is deemed necessary to complement the legislation with procedural elements (identifying agents and public officials, suspending them from the functions during the trial) crucial from a probative and procedural point of view.