Judicial Jurisdiction over Appeals in Prisoner Disciplinary Cases in Modern Penal Legislations (A Comparative Study between the Legislations of France, Italy, and Portugal)

Abstract

In the past, prisoners were viewed with contempt, considered human beings without rights and freedoms. the prevailing view was that disciplining prisoners was the sole prerogative of the penal institution's administration, exercised with full discretionary authority, without oversight or interference from anyone.    

With development, it became necessary to restrict the authority of the penal administration to discipline prisoners, and to surround the system for this discipline with a degree of safeguards that would preserve prisoners' rights and prevent the arbitrariness of the penal administration toward them. This can only be achieved by extending judicial oversight over disciplinary decisions by receiving and adjudicating appeals against these decisions.

Comparative legislation differed regarding the judiciary entrusted with the task of receiving appeals against prisoner disciplinary decisions. While the French legislator assigned this task to the administrative judge, both the Italian and Portuguese legislators tended to assign it to their specialized penal enforcement judiciary.

Comparative legislation also does not agree on the extent of the powers granted to the judiciary when considering appeals against prisoner disciplinary decisions. In France, the administrative judge does not have the authority to amend the disciplinary decision in accordance with the nature and severity of the violation committed. The judge is limited to overturning the decision if he determines that one of two conditions exists: first, the illegitimacy of the disciplinary penalty in terms of its nature and severity, or second, the existence of a disproportionate balance between the penalty and the disciplinary violation committed. In Italy, the powers of the probation judge extend to reviewing the effectiveness of some disciplinary sanctions, in addition to his ability to amend the disciplinary decision. In Portugal, the powers of the Penal Enforcement Court are more expansive. It has broad discretionary power to annul or change the contested disciplinary decision, either immediately or retroactively. It also has the authority to decide what it deems appropriate, including changing, replacing, or modifying the decision in whole or in part.