Information Note on the Court’s case-law 230

June 2019

Marcello Viola v. Italy (no. 2) - 77633/16

Judgment 13.6.2019 [Section I]

Article 3

Degrading punishment

Inhuman punishment

Reducibility of a whole-life prison sentence imposed for leadership of a Mafia organisation depended on cooperation with the police: violation

Facts – In 1999 and in 2002 (on appeal) the applicant was sentenced to life imprisonment for m embership of a Mafia-type criminal organisation. The fact that he was the organisation’s leader was considered an aggravating factor. The regime applicable by default was that of “whole-life” imprisonment. Under domestic law, any prospect of release for su ch prisoners was conditional on their cooperating with the police. The person concerned had to provide the authorities with decisive information for the purposes of preventing further consequences of the offence or helping to establish the facts and identi fy the perpetrators of criminal offences (except where such cooperation was impossible or unenforceable and the person concerned could prove that he or she had severed all ongoing links with the Mafia-type group).

The applicant refused to cooperate in this way, citing his genuine belief in his innocence and the fear of reprisals against himself or his family. As a result, despite having built up entitlement to a potential five-year remission of his sentence by participating in a rehabilitation programme, he was deprived of that remission in practice.

In refusing the applicant’s application for release on licence the sentence supervision court noted his lack of cooperation with the judicial authorities, but did not conduct any assessment of the progress the a pplicant claimed to have made since being convicted.

Law – Article 3 ( substantive aspect )

(i) Prospect of release and possibility of applying for release on licence – In the present case the domestic legislation did not impose an automatic blanket ban on access to release on licence or other adjustments of sentence, but made such access contingent on “cooperation with the judicial authorities”. Owing to the existence of aggravating circumstances linked to his role as head of the Mafia-type group to which h e had belonged, cooperation by the applicant with the authorities would not be considered “impossible” or “unenforceable” for the purposes of domestic law.

While it was true that the domestic regime offered convicted prisoners a choice as to whether to coo perate with the judicial authorities, the Court had doubts as to the free nature of that choice and the appropriateness of equating a lack of cooperation with the prisoner’s dangerousness to society. Failure to cooperate was not always the result of a free and deliberate choice, nor did it necessarily reflect continuing adherence to “criminal values” or ongoing links with the organisation in question.

A refusal to cooperate could be attributable to other circumstances or considerations (such as the fear of reprisals against the person concerned or his or her family); conversely, the decision to cooperate might be based on purely opportunistic reasons. I n such scenarios, equating a lack of cooperation with an irrebuttable presumption of dangerousness to society failed ultimately to reflect the individual’s actual progress towards rehabilitation.

Under Article 5 of the Convention the Court had previously held that a legal presumption of dangerousness could be justified, especially where it was not absolute, but was liable to be contradicted by proof to the contrary. This was particularly true in relation to Article 3 of the Convention, the absolute nature of which did not permit any exceptions. Regarding cooperation with the authorities as the only possible indication that a prisoner had broken off contact with criminal circles and been rehabilitated failed to take any account of other indicators that could be used to assess his or her progress.

In the instant case the Italian prison system offered a range of progressive opportunities for contact with society – such as outside work, prison leave, a semi-custodial regime and release on licence – designed to e ase the prisoner’s resocialisation. However, the applicant had not been granted these opportunities for social reintegration, despite the fact that various items of evidence in the domestic case file pointed to a positive change in his personality and prog ress towards resocialisation.

A convicted prisoner’s personality did not remain unchanged from the time of commission of the offence: it could evolve in the course of his or her sentence, as reflected in the resocialisation process. In the present case the lack of “cooperation with the judicial authorities” gave rise to an irrebuttable presumption of dangerousness which deprived the applicant of any realistic prospect of release. It was thus impossible for the applicant to demonstrate that his detention was no longer justified on legitimate penological grounds; by continuing to equate a lack of cooperation with an irrebuttable presumption of dangerousness to society, the regime in place effectively assessed the person’s dangerousness by reference to the time when the offence had been committed, instead of taking account of the reintegration process and any progress the person had made since being convicted.

This irrebuttable presumption effectively prevented the competent court from examining the application for release on licence and from ascertaining whether the person concerned had, in the course of his her detention, changed and made progress towards reha bilitation to such an extent that his or her detention was no longer justified on penological grounds. The court’s involvement was limited to finding that the conditions of cooperation had not been met, and it could not assess the prisoner’s individual his tory and his or her progress towards rehabilitation.

It was true that the offences of which the applicant had been convicted concerned a particularly dangerous phenomenon for society. Furthermore, the prison reform which had given rise to the regime in iss ue had been adopted in 1992, in the context of an emergency following an episode that had marked Italy deeply. However, efforts to tackle that scourge could not justify derogating from the provisions of Article 3 of the Convention, which prohibited in abso lute terms inhuman or degrading treatment. Thus, the nature of the offences of which the applicant had been accused was irrelevant in the present context. Moreover, the ultimate aim of resocialisation was to prevent reoffending and protect society.

(ii) O ther domestic remedies by which to obtain a review of sentence – As to the possibility of obtaining a pardon or release on humanitarian grounds (for reasons such as advanced age or ill-health), the Court had previously held that this type of remedy was not what was meant by a “prospect of release” as the term had been used since the Kafkaris v. Cyprus judgment ([GC], 21906/04, 12 February 2008, Information Note 105 ). Moreover, the Government had not p rovided any examples of convicted prisoners in a similar situation who had obtained an adjustment of their sentence by means of a presidential pardon.

(iii) Conclusion – The regime applicable to the applicant restricted his prospects for release and the p ossibility of review of his sentence to an excessive degree. Accordingly, his sentence of life imprisonment could not be regarded as reducible, in breach of the principle of respect for human dignity inherent in the Convention and in Article 3 in particula r. However, the Court specified that this finding could not be understood as offering the applicant the prospect of imminent release.

Conclusion : violation (six votes to one).

Article 46: The nature of the violation found was such that the State should und ertake a reform of the life imprisonment regime, preferably by introducing legislation, in order to guarantee the possibility to review the sentence. This should allow the authorities to determine whether, in the course of his or her sentence, the prisoner had changed and made progress towards rehabilitation, to the extent that his or her detention was no longer justified on legitimate penological grounds, while enabling the convicted prison to know what he or she had to do in order to be considered for rel ease and what conditions were attached. The severing of ties with Mafia circles could be expressed in ways other than cooperation with the judicial authorities and the automatic mechanism provided for under the current legislation. Nevertheless, the Court specified that the possibility of applying for release did not necessarily prevent the authorities from rejecting the application if the person concerned continued to pose a danger to society.

Article 41: finding of a violation sufficient in respect of non -pecuniary damage.

(See also the Factsheet on Life imprisonment )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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