FIRST SECTION
CASE OF MARCELLO VIOLA v. ITALY (No. 2)
(Application no. 77633/16)
 
 
 
 
 
 
JUDGMENT
 
 
STRASBOURG
13 June 2019
 
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Marcello Viola v. Italy (no. 2),
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
 Linos-Alexandre Sicilianos, President,
 Ksenija Turković,
 Guido Raimondi,
 Krzysztof Wojtyczek,
 Armen Harutyunyan,
 Pauliine Koskelo,
 Gilberto Felici, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 30 April 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 77633/16) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Marcello Viola (“the applicant”), on 12 December 2016. 2. The applicant was represented by Mr A. Mascia, a lawyer practising in Verona, and by Ms B. Randazzo and Mr V. Onida, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their former Agent, Ms E. Spatafora, and by their co-Agent, Ms M. Aversano. 3. The applicant alleged that he had been sentenced to an irreducible term of life imprisonment, which he considered inhuman and degrading. 4. On 30 May 2017 the Government were given notice of the complaints under Articles 3 and 8 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5. Third-party comments were received from the L’altro diritto onlus documentation centre of the University of Florence, the European Prison Litigation Network, and a group of academics and experts coordinated by the University of Milan, all of whom had been given leave by the President to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a) of the Rules of Court). THE FACTS
The CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1959 and is currently detained in Sulmona Prison. 7. Between the mid-1980s and October 1996 (a period known as the seconda faida di Taurianova) he was implicated in a series of events involving the Radicena mafia clan (la cosca Radicena) and the rival Iatrinoli clan (la cosca Iatrinoli). The criminal proceedings against the applicant
8. The first set of criminal proceedings against the applicant and other defendants, known as the “Marcello Viola + 24” trial (criminal case no. 144/92), covered events between January 1990 and March 1992. In particular, it identified the perpetrators of four killings that had taken place on 3 May 1991 (“Black Friday”) and shed light on the networks of two mafia clans that were competing for control over the town of Taurianova and the surrounding areas. 9. On 16 October 1995 the Palmi Assize Court sentenced the applicant to fifteen years’ imprisonment for membership of a mafia-type criminal organisation. The fact that he was the head of the mafia group and the instigator (promotore) of its criminal activities was taken into consideration by the court as an aggravating circumstance. With regard to the nature of the links to mafia organisations, the Assize Court highlighted several factors including “the close ties between members, the internal hierarchy, the different roles and tasks assigned to members, the control over territory, the unspecified criminal design, the practice of intimidation and, in a more modern approach, not just the harassment of businesses but also direct participation in the area’s economy through effective control over legal economic activities.”
10. In judgment no. 3 of 10 February 1999 (deposited with the registry on 29 March 1999), the Reggio Calabria Assize Court of Appeal upheld the applicant’s conviction but reduced the sentence to twelve years’ imprisonment. The applicant did not appeal on points of law. 11. The second set of proceedings against the applicant and other defendants, known as the “Taurus trial” (criminal cases nos. 1/97 – 12/97 – 18/97) concerned other facts relating to the criminal activities of the two Taurianova clans. On 22 September 1999 the Palmi Assize Court, in judgment no. 10/99, sentenced the applicant to life imprisonment. The judgment was upheld by the Reggio Calabria Assize Court of Appeal on 5 March 2002. In particular, the applicant was found guilty of the offence of membership of a mafia-type criminal organisation within the meaning of Article 416 bis of the Criminal Code, and of other offences (murder, abduction and false imprisonment resulting in the victim’s death, and unlawful possession of firearms), aggravated by “mafia-type” circumstances as set out in section 7 of Decree-Law no. 152 of 13 May 1991, converted into a Law on 12 July 1991 (Conversion Law no. 203/1991). The applicant’s role as head of the criminal organisation and the instigator of its activities was also taken into consideration as an aggravating circumstance in his case. Applying the rules concerning a “continuing offence” (reato continuato), the Assize Court of Appeal sentenced the applicant to life imprisonment, with two years’ daytime isolation. 12. The applicant lodged an appeal on points of law which was dismissed on 26 February 2004. 13. After the applicant had submitted a request for fresh determination of the overall prison sentence, based on the alleged continuity between the facts giving rise to the “Marcello Viola + 24” trial (judgment of 10 February 1999) and those in issue in the “Taurus” trial (judgment of 5 March 2002), the Reggio Calabria Assize Court of Appeal, in a ruling of 12 December 2008, found that the criminal design was one and the same, and recognised the continuity between the facts in issue in the two sets of proceedings. The overall sentence was therefore recalculated and set at life imprisonment, with daytime isolation for a period of two years and two months. The applicant’s detention
14. Between June 2000 and March 2006 the applicant was detained under the special prison regime provided for in section 41 bis, subsection 2, of Law no. 354 of 26 July 1975 (hereafter “section 41 bis”). That provision gives the prison authorities the power to suspend application of the ordinary prison regime in whole or in part for reasons of public order and safety. 15. In particular, on 14 December 2005 the Ministry of Justice issued an order extending the “41 bis” regime for one year in the applicant’s case. The applicant appealed against the order to the L’Aquila Sentence Supervision Court, complaining of a lack of reasons for the order, which he alleged was based on information that did not reflect his actual situation at the time, and maintaining that he had severed his ties to the mafia organisation. 16. In an order of 14 March 2006 the Sentence Supervision Court allowed the applicant’s request and ended the application of the special prison regime in his case. The court reiterated that the “41 bis” regime did not require the prisoner to prove that he or she had severed links to the mafia organisation, as the burden of proof lay with the authorities. In the court’s view, it was for the latter to provide reasons, based on detailed, specific and current factual information, indicating that the prisoner in question still had contact with the mafia organisation. The Sentence Supervision Court found that in the instant case the authorities had simply observed that the criminal organisation in question was still active and that the applicant had not shown any signs of striving for rehabilitation, nor had he displayed any willingness to cooperate with the judicial authorities. The court noted that the authorities had not provided any specific evidence that the applicant was able to maintain contact with the organisation in question, and found that the order had not taken sufficient account of the progress he had made towards rehabilitation. 17. The applicant subsequently made two requests for prison leave (permesso premio), a measure granted to prisoners in specific circumstances (see paragraph 34 below). 18. His first request was refused by the L’Aquila post-sentencing judge on 13 July 2011. In the reasoning of his decision, the judge observed that prison leave could not be granted to individuals sentenced to life imprisonment for one of the offences referred to in section 4 bis of Law no. 354 of 26 July 1975 (hereafter “section 4 bis”) in the absence of “cooperation with the judicial authorities” within the meaning of section 58 ter of the same Act (hereafter “the Prison Administration Act”). 19. The applicant lodged an appeal against that decision with the L’Aquila Sentence Supervision Court, citing the progress he had allegedly made towards rehabilitation and contending that he had severed his links with mafia circles. He also raised a question of constitutionality concerning section 4 bis, in so far as the latter made no provision for prison leave to be granted to life prisoners who had not cooperated with the judicial authorities and whose situation did not make cooperation “impossible” or “unenforceable”, but who had made progress towards rehabilitation and maintained their innocence, and in respect of whom there was reliable evidence ruling out any links to the criminal organisation. 20. In order no. 22/12 of 29 November 2011 (published on 9 January 2012), the Sentence Supervision Court refused the request for prison leave on the grounds that the condition of “cooperation with the judicial authorities” was not satisfied. Regarding the constitutionality of section 4 bis, the court considered, before ruling on the merits of the question, that it was first necessary to determine whether the other criteria governing eligibility for prison leave were satisfied. In particular, the court focused its assessment on the existence of positive evidence ruling out any current links with the criminal organisation. 21. The court specified at the outset that the order of 14 March 2006 (see paragraph 16 above) lifting the “41 bis” prison regime had no legal implications for the proceedings at hand, as the judges’ assessment concerned two different situations. In the view of the Sentence Supervision Court, the 2006 order had concerned the determination of whether or not the applicant was capable of maintaining links with the mafia organisation while in prison, whereas in the proceedings at hand the aim was to ascertain whether it could be established with certainty that the applicant no longer had links to the criminal organisation. 22. In the case before it the Sentence Supervision Court considered that the severing of those links had not been positively established. On the contrary, it noted that the mafia group was still active in the Taurianova area, that the applicant had been the acknowledged head of a criminal organisation and that it was not apparent from the observation of his day-to-day conduct that he had engaged in a critical appraisal of his criminal past. Accordingly, the court rejected the applicant’s request without examining the merits of the question of constitutionality raised by him. The court’s order was upheld by the Court of Cassation on 7 November 2012 (judgment no. 3107/12). 23. The second request for prison leave was refused by the L’Aquila post-sentencing judge on 4 June 2015 and by the L’Aquila Sentence Supervision Court on 13 October 2015, on the grounds of failure to cooperate with the authorities. 24. In the meantime, in March 2015, the applicant had submitted an application to the L’Aquila Sentence Supervision Court for conditional release under Article 176 of the Criminal Code. He pointed to his progress towards rehabilitation in prison as noted in observation reports dated 1 March 2011, 20 August 2014 and 27 January 2015, to the absence of any links to organised crime and to his inability to obtain a reduction of sentence through early release (according to the applicant, he had accrued entitlement to over 1,600 days by the date of submission of the application). He also maintained that, owing to the existence of the aggravating circumstance taken into consideration in the judgments convicting him, based on his role as head of the criminal organisation, there was no prospect that cooperation would be deemed in his case to be “impossible” or “unenforceable” within the meaning of section 4 bis of the Prison Administration Act. Lastly, he requested the Sentence Supervision Court to raise a question as to the constitutionality of section 4 bis in relation to Article 27 § 3 of the Constitution and Article 117 § 1 of the Constitution read in conjunction with Article 3 of the Convention. 25. In a decision of 26 May 2015 the Sentence Supervision Court rejected the application for conditional release, observing that the applicant had been convicted of membership of a mafia-type criminal organisation and of other offences committed through intimidation based on links to the mafia or with the aim of contributing to the organisation’s activities (section 7 of Decree-Law no. 152 of 13 May 1991, converted into Law no. 203 of 12 July 1991). According to the court, as the applicant had committed offences covered by section 4 bis, he was not eligible for conditional release if he had not cooperated with the judicial authorities; in his case, such cooperation was neither “impossible” nor “unenforceable” within the meaning of subsection 1 bis of the above-mentioned section. 26. As to the question of constitutionality raised by the applicant, the court held that the provision in issue was consistent with the principles derived from Article 27 § 3 of the Constitution. After referring to the case‑law of the Constitutional Court and the position taken by the Court in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, ECHR 2013 (extracts)), the Sentence Supervision Court stated that the legislation afforded prisoners sentenced to life imprisonment for one of the offences referred to in section 4 bis a practical possibility of release which demonstrated that the sentence had achieved its aim and that the convicted offender could reintegrate into society. According to the court, that possibility was subject to a specific requirement for the prisoner concerned to have permanently severed his or her links with mafia circles; this had to be manifested in practice through meaningful cooperation with the judicial authorities. 27. The applicant appealed on points of law against that decision, arguing in particular that the provision establishing an automatic statutory mechanism preventing “non-cooperating” prisoners from being granted conditional release was unconstitutional. 28. In judgment no. 1153/16 of 22 March 2016 (published on 1 July 2016), the Court of Cassation dismissed the applicant’s appeal. With regard to the question of constitutionality he had raised, it pointed to the case-law of the Constitutional Court, and in particular judgment no. 135/2003, according to which the fact of making conditional release contingent on cooperation with the judicial authorities did not run counter to the rehabilitative purpose of the sentence. According to the Constitutional Court, convicted prisoners were free to choose whether to cooperate with the judicial authorities and were not subjected to any form of coercion. As to the applicant’s claim to be innocent, the Constitutional Court referred to another ruling of the same court (no. 306/1993), in which it had held that the section 4 bis regime did not adversely affect convicted prisoners who protested their innocence, as this circumstance had legal relevance only in the context of a retrial. Lastly, the Court of Cassation stressed the absolute nature of the presumption of dangerousness to society in the absence of cooperation with the judicial authorities. In the court’s view, the legislature was free to lay down conditions for the release of prisoners who had been convicted of particularly serious offences such as those linked to mafia-type activities. Persons serving a life sentence under section 4 bis posed a greater risk on account of the offence they had committed rather than their individual personality. That being so, it was legitimate for the legislature to require positive evidence that the person concerned had permanently severed contact with the mafia group in question. RELEVANT LEGAL FRAMEWORK AND PRACTICEPositive lawThe Constitution

29. Article 27 § 3 of the Italian Constitution provides that punishments must not be inhuman and must be aimed at rehabilitating the convicted offender. The Criminal Code
30. The provisions of the Criminal Code of relevance to the present case read as follows :
Article 22 – Life imprisonment (ergastolo)
“Ergastolo is a life sentence, to be served in one of the specially designated prisons ... Persons sentenced to life imprisonment may be authorised to work outside prison.”
Article 176 – Conditional release
“Persons sentenced to imprisonment whose conduct while serving their sentence demonstrates that they have repented may be considered for conditional release if they have already served at least thirty months or, in any event, half of the sentence where the remainder of the sentence [to be served] is not more than five years.
... Persons sentenced to life imprisonment may be considered for conditional release when they have served at least twenty-six years in prison. Eligibility for conditional release shall depend on the performance of the civic duties arising out of the criminal offence, unless the convicted prisoner can prove that it is impossible for him or her to comply with those duties.

Outcome for Article 3: violation