Violence and mistreatment in prison are not an inevitable consequence of detention. If you have suffered injuries, humiliations, threats, unjustified use of force, or degrading material conditions, it is natural to wonder whether the State should be held liable and what remedy can lead to a concrete result. This doubt also arises because apparently similar situations follow different paths: physical assault does not coincide with overcrowding or the prolonged absence of adequate hygienic conditions.
I want to help you distinguish between remedies without confusing them. We will see when the mechanism provided for detention contrary to human dignity can operate, when instead it is necessary to establish a true claim for compensation for injuries or other personal consequences, and which facts make the request verifiable. The choice of path matters as much as the gravity of the episode, especially if the violation is still ongoing.
Violence and Inhuman Conditions: Two Damages That Do Not Coincide
Detained persons retain their fundamental rights. Article 1 of the penitentiary administration act requires treatment compliant with humanity, imposes respect for human dignity, and prohibits any physical or moral violence against those deprived of their liberty. Custody limits freedom of movement, but it does not create a space exempt from fundamental safeguards. You can consult the text of the penitentiary administration act.
An act of violence requires reconstructing a precise episode. For example, the contested behavior, the people present, the injuries reported, any request for medical care, and the relationship between that episode and the claimed damage all matter. The use of force does not become lawful merely because it occurs within a penitentiary institution: a distinction must be made between measures necessary for security and conduct that exceeds the limits imposed by law and human dignity.
Degrading conditions instead have a different structure. They may depend on insufficient space, inadequate hygiene, persistent lack of hot water, inadequate ventilation or lighting, or a combination of factors that makes detention incompatible with the minimum level of respect owed to a person. In this case, it is not essential to identify a single material author of the suffering, but it is necessary to describe the conditions, their period, and their concrete impact.
The Remedy under Article 35-ter for Detention Conditions
Article 35-ter of the penitentiary administration act concerns a specific situation. It applies when detention conditions violate Article 3 of the European Convention on Human Rights, meaning they reach the threshold of inhuman or degrading treatment. Therefore, occasional discomfort or isolated poor service is not enough: the judge must ascertain sufficiently serious conditions in light of the concrete context and their persistence.
For those still detained, the primary remedy is the reduction of the remaining sentence. If the prejudice has lasted for at least fifteen days, the surveillance magistrate may order a reduction of one day of the sentence yet to be served for every ten days spent under the ascertained conditions. The application may be filed personally or through a defense counsel equipped with a special power of attorney. The content and consequences of the remedy are governed by Article 35-ter of Law No. 354 of 1975.
The sum of 8 euros per day applies in the cases established by the rule. The surveillance magistrate liquidates this amount for the period that cannot be offset by the deduction because the remaining sentence is insufficient. The same monetary criterion applies when the period of detention under non-compliant conditions is less than fifteen days. It is not a general tariff for every hardship experienced in prison, nor does it automatically measure the damage caused by personal injury.
After detention ceases, the competent judge changes. Anyone who has finished serving a sentence in prison, or has undergone pre-trial detention not computable in the sentence to be served, may bring an action before the court of the capital of the district in which they reside. For this action, Article 35-ter provides for a forfeiture period of six months from the cessation of detention or pre-trial detention: it is a special time limit, which must not be confused with the ordinary statute of limitations for other compensation claims.
If the Prejudice is Ongoing: Stopping the Violation
Compensation does not replace immediate protection. If a harmful condition continues in the present, the first issue is to stop it or reduce its effects: obtaining medical assistance, reporting a concrete risk to safety, or describing a condition incompatible with health or dignity. Waiting solely for future financial relief may leave the most urgent problem unanswered.
The judicial complaint serves to intervene in an ongoing and serious prejudice. Article 69, paragraph 6, letter b), of the penitentiary administration act assigns to the surveillance magistrate complaints concerning the administration's non-observance of the rules of the administration and regulations when serious and current prejudice derives therefrom in the exercise of the detained person's rights. The relative procedure is governed by Article 35-bis.
This complaint is not a generic claim for money. It can be useful for a violation still in progress, whereas Article 35-ter has a compensatory function for conditions contrary to Article 3 of the Convention. The Ministry of Justice distinguishes the complaint for unlawful conduct by the administration from the compensatory remedy for inhuman detention on the page concerning the rights of detained persons. If there is also physical violence or individual threats, the complaint does not exclude the need to evaluate a report and an autonomous compensation claim.
For Injuries and Assaults, a Fact-Based Damage Claim is Required
Violence or injury does not automatically fall under the calculation of Article 35-ter. That remedy is designed to compensate detention conditions that reach the threshold of inhuman or degrading treatment. If the damage derives from beatings, unlawful restraint, threats, omissions in the protection of the person, or an unprevented assault, it is necessary to prove the fact, the damage, and the link between the two elements.
Civil liability can extend to the State. Article 28 of the Constitution establishes that public officials and employees are directly responsible for acts committed in violation of rights and that, in such cases, civil liability extends to the State and public bodies. This principle does not produce automatic compensation: it is necessary to ascertain which right has been violated, who held the conduct or which protective obligation was omitted, and what harmful consequence derived therefrom. The constitutional reference is available in the text of Article 28 of the Constitution.
Damage from injury requires proof different from mere discomfort. Medical certificates, medical reports, photographs taken in verifiable ways, health records, the names of those who witnessed the events, and requests presented to the institution can help reconstruct what happened. If damage to health is claimed, the clinical path matters: a diagnosis, the care received, the possible persistence of consequences, and their traceability to the reported fact.
The civil claim can follow two paths that are not identical. If criminal proceedings are initiated for the facts, the injured party may evaluate joining as a civil party to seek restitution and compensation within the criminal proceedings. Alternatively, they may act before the civil court with an independent liability claim. The choice must not be made as if they were two copies of the same remedy: the parties, the procedural moment, the available evidentiary material, and the relationship with any criminal proceedings change.
Facts That Make the Claim Verifiable
Chronology is often the decisive point. For a single assault, it is useful to establish the day, time slot, location, people present, subsequent interventions, and the moment when injuries appear or assistance is requested. For degrading conditions, however, it is necessary to indicate the periods of stay in the various cells or sections and precisely describe what happened every day, rather than merely using formulas like “uninhabitable prison”.
Documents must be linked to a concrete fact. A medical report proves that a medical visit took place and describes what the healthcare professional detected; by itself, it does not necessarily identify the perpetrator of the injury. A complaint submitted to the administration proves that a report was formulated, but it does not replace the ascertainment of the violation. The value of each element increases when dates, locations, and contents coincide with one another.
Proof of damage must not be confused with proof of liability. A photograph can make an injury visible, but it is necessary to understand when it was taken and what it represents. A medical certificate can attest to a diagnosis, but the cause of the injury requires further elements. For detention conditions, cell capacity, the actual number of occupants, the duration of stay, access to facilities, and reports already made may be relevant.
Choosing Steps Without Overlapping Remedies
The first alternative concerns what you want to achieve immediately. If the danger or harmful condition is still current, priority must be given to protecting health and safety and to the remedy aimed at stopping the violation. If the violation has now ended, the problem instead becomes identifying the claim that corresponds to the damage suffered and respecting any special time limits.
The second alternative depends on the nature of the prejudice. For inhuman detention conditions, Article 35-ter finds space, with the forms and amounts predetermined by law. For a violent event with injuries, or for a failure to protect that caused personal damage, the center of the claim is liability for that fact and the concretely proven damage. The two events can coexist, but they must not be treated as if one automatically absorbed the other.
A criminal complaint alone does not determine compensation. It may be necessary to activate the criminal ascertainment of facts that may constitute a crime, but the claim for damages follows its own rules. Article 74 of the Code of Criminal Procedure allows the party injured by the crime to exercise the civil action in criminal proceedings against the defendant and any civilly liable party; the Ministry reports its content in the circular on civil action in criminal proceedings. Before choosing, it is essential not to miss the six-month time limit provided solely for the remedy under Article 35-ter after release.
Frequently Asked Questions
Can I ask for 8 euros for every day spent in prison?
No, not for every day of detention. The sum of 8 euros per day is the criterion provided by Article 35-ter for detention conditions that violate Article 3 of the European Convention, in the cases indicated by the rule. It can concern periods of less than fifteen days, insufficient remaining sentence, or persons who are no longer detained, but it does not replace compensation for personal injury.
Can I use Article 35-ter if I was beaten in prison?
It is not the remedy that automatically quantifies damage from assault. Article 35-ter concerns inhuman or degrading detention conditions. For beatings, injuries, or unjustified use of force, it is necessary to reconstruct the fact, prove the damage, and evaluate the compensation action and any criminal proceedings. Detention conditions and the violent episode may both be relevant, but they remain distinct issues.
If I am still detained, can I ask for the situation to change?
Yes, if the prejudice is current and serious. The judicial complaint provided for by Articles 35-bis and 69 of the penitentiary administration act can concern the non-observance of rules from which serious prejudice derives in the exercise of rights. It is a remedy aimed at removing the ongoing violation; it does not eliminate the need to document injuries, threats, or other individual facts.
Can I take action after being released from prison?
Yes, but for the remedy under Article 35-ter there is a special forfeiture period. Anyone who has finished detention can ask for relief for inhuman conditions before the competent court within six months from the cessation of detention or pre-trial detention. For different damages, such as those from injuries or violence, the rules and time limits do not necessarily coincide with this special rule.
Do I have to wait for a criminal conviction to claim damages?
No, a conviction is not the only path to seek compensation. If criminal proceedings exist, the injured party may evaluate joining as a civil party; an autonomous civil action also remains possible. In any path, however, the violation, the damage, and the causal link between the fact and the claimed consequences must be proven.
A Useful Guidance Before Taking Action
The right claim depends on the damage you want to have recognized. For inhuman detention conditions, the six-month time limit after the cessation of custody requires special attention. For violence and injuries, instead, the central point is preserving a precise reconstruction of the facts and health documentation, without mistaking the lump-sum remedy of Article 35-ter for full compensation for personal damage. If you need to distinguish the possible actions regarding facts that have already occurred or are still ongoing, you can contact me.