Author: Lawyer Enrico Germano

In March 2023, there was an outcry in the Italian media about the constant reports in the metro and on public transport of young serial pickpockets, mostly pregnant and often from nomad camps in the hinterlands of Rome and Milan, who go unpunished precisely because they are pregnant. The political clash in Italy remains heated where the current governing majority, centre-right, would like to reform Article 146 of the Italian penal code, tightening up the measures against pickpockets and also being able to arrest pregnant women or women with children under one year of age. Article 146 of the Italian penal code provides that the execution of a sentence, other than a fine, is deferred if it is to be carried out against a pregnant woman, an infant mother under one year of age, a person suffering from AIDS or a serious immune deficiency.

Italian director Vittorio De Sica’s 1963 film Yesterday, Today and Tomorrow is certainly premonitory, in which an abusive cigarette seller, played by Sofia Loren, resorted to several pregnancies to avoid the risk of being arrested.

In Switzerland, this is not the case since even a pregnant woman, if seriously suspected of a crime, can be arrested and placed in preventive detention due to the risks of absconding, the tampering with evidence or a repeat offence. Under Article 221(1) of the Swiss Criminal Procedure Code (Criminal Procedure Code-CrimPC), preventive or security detention is only permissible when the accused is seriously suspected of a felony or misdemeanour and there is a serious risk that

  1. will evade criminal proceedings or the anticipated sanction by absconding;
  2. will influence people or tamper with evidence in order to compromise efforts

to establish the truth; or

c. will pose a considerable risk to the safety of others by committing serious

felonies or misdemeanours as he or she has already committed similar offences.

Two recent rulings by Switzerland’s highest Court in 2020 dealt, inter alia, with the requests made by a pregnant woman, accused of drug trafficking, during her preventive detention and concerning the granting of authorisation for outside telephone calls, for visiting permits, as well as for permission for the detainee’s partner to attend the birth, under the angle of the fundamental rights of the accused and the principle of proportionality of restraint measures.

The Federal Supreme Court held in this case that there was a real risk of evidence being tampered with if the defendant was granted all her requests. The Federal Supreme Court therefore considered that, in the light of the particular circumstances, namely the imminent birth of the child, a total ban on having any contact with her partner appeared disproportionate and concluded that the accused should exceptionally be allowed to make a supervised telephone call to her partner from prison, with a prohibition on discussing the case in question and on condition that their conversation be recorded. However, in view of the seriousness and concreteness of the risk of tamering evidence, the Federal Supreme Court ruled that there were no grounds to authorise the partner to visit the woman in prison or to attend the birth.

As far as the canton of Ticino is concerned, on 29 March 2023, the project for the creation of an all-female section at the cantonal prison has meanwhile received the agreement of the Council of State, “which envisages 11 cell places reserved for female prisoners, including a mother-child cell, as well as for mothers with children up to the age of three, in order to adequately accommodate the needs of women in closed detention and to limit placements outside the canton” at the Hindelbank women’s prison near Bern.

1 Corriere della Sera, 24 March 2023

2 Il Giornale (of Milan), 24 March 2023

3 Ansa – Agenzia Nazionale Stampa Associata – 23 March 2023

4 Article 146 of the Italian penal code

5 221(1) of the Swiss Criminal Procedure Code (Criminal Procedure Code-CrimPC)

6 Maternité et détention provisoire ne font pas bon ménage. Un regard hybride entre droit pénal et droit des familles, Camille Montavon et Jérôme Saint-Phor, résumé et analyse des arrêts du 20 mars et 26 mars 2020 du Tribunal fédéral, ATF 1B_122/2020 et ATF 1B_148/2020

7 Maternité et détention provisoire ne font pas bon ménage. Un regard hybride entre droit pénal et droit des familles, Camille Montavon et Jérôme Saint-Phor, résumé et analyse des arrêts du 20 mars et 26 mars 2020 du Tribunal fédéral, ATF 1B_122/2020 et ATF 1B_148/2020

8 Corriere del Ticino, 29 March 2023

9 https://www4.ti.ch/tich/area-media/comunicati/dettaglio-comunicato/?NEWS_ID=219551