Antonio Albanese and 251 other authors (for the complete list of authors, see annex I); the authors are v. Italy

The authors are 252 male life prisoners⁴ of Italian nationality. Their names and dates of birth are provided in annex I. They claim that the State party violated their rights under articles 7 and 10 (1) and (3) of the Covenant in view of the prison regime they are subjected to in accordance with article 4-bis (1) of Law no. 354/1975, which rules out access to parole measures for all those convicted and sentenced for serious criminal offences concerning the mafia and/or terrorism unless they cooperate with the authorities in securing prosecutions of other alleged members of criminal organizations. The Optional Protocol entered into force for the State party on 15 December 1978. All authors are represented by the same counsel.

4. According to the counsel, the 252 authors represent roughly one-fourth of all life prisoners in Italy (1174 as of 12 October 2015). ↩

On 24 October 2024, pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee decided to join the present communications for a joint decision, in view of substantial factual and legal similarity.

The authors have all been convicted and sentenced to life imprisonment for mafia-related offences between 1977 and 2014.⁵ Given the seriousness of their offences, the sentences of life imprisonment they are serving fall under a restrictive regime,⁶ which was introduced in the wake of the mafia bombings and killings of 1992. The specific conditions of this harsh penitentiary regime are set forth in article 4-bis (1) of Law no. 354/1975 (the Penitentiary Act). After mentioning a series of crimes ranging from aiding the mafia to illegal immigration and drug trafficking, that provision establishes that those sentenced to imprisonment for one of these crimes are not eligible for parole or any other probation measure⁷ – excluding early release – unless they cooperate with the investigative or judicial authorities pursuant to article 58-ter of the Penitentiary Act.

5. They provide certificates of detention which mention the date of the arrest and the penalty imposed (i.e., life imprisonment) for one or more of the following offences: mafia association, conspiracy aimed at drug trafficking, kidnapping, first degree murder and extortion. ↩
6. Life imprisonment without parole. The specific conditions of life imprisonment are set out in article 22 of the Criminal Code, with article 4-bis of the Penitentiary Act establishing a special regime of life imprisonment without parole. ↩
7. Assignment to work outside, bonus permits and alternative measures to detention. ↩

The only way to challenge the operation of the absolute and non-rebuttable presumption contained in article 4-bis would be to file a request for probation measures and ask the judge to refer to the Constitutional Court a question concerning the constitutionality of that article. However, the European Court of Human Rights has already ruled that such an application cannot be a remedy that would need to be exhausted as required under the European Convention for Human Rights.⁸ With several judgments issued between 1993 and 2014, the Constitutional Court has consistently ruled that the restrictive penitentiary regime applied to the authors does not infringe the Italian Constitution. Notably, in reaching this conclusion, the Constitutional Court indicated that: “the prohibition [to access parole measures] provided for by article 4-bis does not stem directly from the law, but is the consequence of the prisoner’s choice not to cooperate, while having the chance to do so: thus, the law does not exclude the granting of parole measures in absolute terms, because the detainee has the possibility to change his mind [and cooperate]”.⁹

8. European Court of Human Rights, Parrillo v. Italy [GC], no. 46470/11, 27 August 2015, para. 101. ↩
9. Constitutional Court, Judgment No. 135 of 24 April 2003, para. 4. ↩

As a consequence of this well-established constitutional case-law, neither lower courts nor the Court of Cassation refer questions of constitutionality of article 4-bis to the Constitutional Court anymore. They rather declare them manifestly ill-founded without exception. As such, these decisions confirm the “futile” nature of any further legal action that may be taken by the authors to seek redress at domestic level.

This is also the outcome of all the applications filed by some of the authors in order to access probation measures and challenge the operation of the absolute presumption in article 4-bis.¹⁰ All these requests have been rejected and/or declared inadmissible. For this reason, as in the case of G. v. Australia,¹¹ the authors consider that the Committee should relieve them from the obligation to exhaust domestic remedies that are “futile” or otherwise “ineffective”.

10. 159 among the 241 authors stated that they had requested a special leave. All the requests have been rejected. The reason given to 53 of them referred exactly to the prohibition contained in article 4-bis. ↩
11. CCPR/C/119/D/2172/2012, para. 6.9 with reference to paras. 2.9-2.14. ↩

For example, when one of the authors – Claudio Conte (3393/2019) – appealed the decision rejecting his request for special leave, the Tribunal of Catanzaro acknowledged that Mr. Conte had served 27 years of continuing detention, that there was evidence that he had ceased his bonds with organised crime and that “he had undertaken a pluriannual path of critical revision of his criminal past.” But although considering that Mr. Conte was certainly “a new man,” the Tribunal ruled that his request “must” be rejected and prompted the legislature to “loosen the unbearable grip of article 4-bis.” Multiple requests for special leave introduced by 159 authors such as Giousé Chindamo (3388/2019), Salvatore Biondo (3353/2019) and Antonino Alcamo (3330/2019) were also rejected solely on the basis of their lack of cooperation.

The authors are involved in rehabilitation programmes and 109 of them have already completed such programmes. Some have also obtained satisfactory results. Should the authors not be submitted to the restrictive penitentiary regime, they would technically qualify for release on parole under article 176 of the Criminal Code, having been detained for 26 continuing years or more. In abstracto, the authors have also been granted between 5 and 8 years of early release under article 54 of the Penitentiary Act.¹² However, none of them will ever enjoy a prospect of release unless they cooperate with the authorities.

12. Out of 196 authors who provided information in this sense, 53 declared that they were granted 5 years of early release, 27 were granted 6 years, 4 were granted 7, and 4 were granted 8. ↩

The authors indicate that many of them also suffer from serious health conditions related to heart, blood circulation, eyes, hearing disorders, diabetes, hernia, prostates, gastritis, and arthritis. For example, Carmine Gerace (3450/2019) lives in a wheelchair since his arrest in 1971 and the full-time assistance he needs is provided by his inmates. Gaetano Sades (3543/2019) suffers from hepatitis C and epilepsy, and has been recognised as “civil invalid person”.

The authors consider that the main question in their cases is whether cooperation with authorities is tantamount to a “fair prospect of release,” which makes life imprisonment compliant with international human rights instruments. They explain that when coupled with life imprisonment, article 4-bis (1) of the Penitentiary Act breaches their right to rehabilitation in making access to parole measures conditional upon cooperation, rather than upon penological grounds.¹³ The Act sets an absolute and non-rebuttable presumption of equivalence between repentance and cooperation.¹⁴ This prison regime goes against human dignity. The authors’ certificates of detention prove that each of them is personally and individually affected by the application of the legislative provision complained of and, consequently, that the rights of each of them under articles 7 and 10 of the Covenant have been violated.

13. The overwhelming majority of Italian scholars consider article 4-bis unconstitutional – the authors cite several sources in that sense. But the Parliament never went beyond futile attempts of amending that article. ↩
14. The authors claim that there is a strict exception of “impossible cooperation” accepted by the Constitutional Court, but do not give further details. ↩

When applied to life prisoners, the presumption contained in article 4-bis makes cooperation the only possible exemption from serving a whole-life sentence. But, however labelled, cooperation cannot be deemed tantamount to that “fair prospect of release” which, alone, makes life imprisonment compliant with international human rights instruments. To the contrary, the alternative between cooperation and continuing detention constitutes a subtle form of psychological torture, inhuman and degrading treatment.

The authors recall that the Committee has already held that “no penitentiary system should be only retributory,” but should, rather, “essentially seek the reformation and social rehabilitation of the prisoner.”¹⁵ They consider that States have a positive obligation to avail prisoners of a whole host of measures with a view to their rehabilitation, including “teaching, education and re-education, vocational guidance and training” in addition to “work programmes for prisoners inside the penitentiary establishment as well as outside.”¹⁶ Therefore, the Committee generally finds a violation of articles 7 and 10 when no recreational or educational programmes and policies are available to life prisoners in and outside the prison.¹⁷

15. Blessington and Elliot v. Australia (CCPR/C/112/D/1968/2010), para. 7.8. ↩
16. Human Rights Committee, General comment no. 21 on article 10 (1992), para. 11. ↩
17. For example, Quliyev v. Azerbaijan (CCPR/C/112/D/1972/2010), para. 9.2. ↩

The authors note that the European Court of Human Rights has also ruled in its landmark case Vinter v. the United Kingdom that “in the context of a life sentence, article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life of the prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.”¹⁸ The authors do not have access to such a review. Their recreational and work or study programmes cannot possibly lead to release in the absence of cooperation. In the case of Fardon v. Australia, the Committee made a specific reference to article 10 (3) of the Covenant to consider that the State should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention.¹⁹

18. European Court of Human Rights, Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, 9 July 2013, para. 119. ↩
19. CCPR/C/98/D/1629/2007, para. 7.4. ↩

The authors point to the consequences of the preclusion contained in article 4-bis on their physical and psychological health. Many of them suffer from health conditions which are not compatible with life imprisonment, let alone with a form of life imprisonment that rules out early release and any other form of parole.

The authors do not have at their disposal any domestic remedy satisfying the conditions of article 2 (3) of the Covenant. The violation of their rights guaranteed by articles 7 and 10 (1) and (3) of the Covenant stems directly from – and is an automatic consequence of – article 4-bis (1) of the Penitentiary Act. This provision deprives the penitentiary regime of any rehabilitative aim by making parole conditional upon cooperation, rather than reformation and social rehabilitation. In this sense, the authors point out to the unsuccessful attempts of some of them to challenge the absolute and non-rebuttable presumption in article 4-bis and to the settled case-law of the Court of Cassation and of the Constitutional Court.

Against this background, the authors do not claim that they did in fact exhaust domestic remedies or are exempted to exhaust a specific remedy. They rather claim that there is no remedy in the Italian legal system that would allow them to effectively claim their rights before a competent domestic authority as required by article 2 of the Covenant. The information concerning the unsuccessful attempts of some of the authors to challenge the absolute and non-rebuttable presumption contained in article 4-bis (1) of the Penitentiary Act at domestic level is merely intended to reinforce their contention that there are no effective domestic remedies. This conclusion is confirmed by the settled case law of the Court of Cassation and of the Constitutional Court. Domestic courts are bound by the law and enjoy no discretion in the application of article 4-bis. As a consequence, courts are unable to address the violation complained of by the authors. This is the reason why the authors bring this injustice directly before the Committee.

Regarding the delay in bringing their case before the Committee – given that some of the authors have been aware of the automatic application of article 4-bis as early as 1993 – they submitted that the principle laid down in rule 99 (c) of the Committee’s rules of procedure does not apply to the case at hand because the authors complain of the continuing violation of their rights under articles 7 and 10 (1) and (3) of the Covenant, which is still ongoing and in respect of which the authors have no effective remedy at their disposal. The authors do not challenge their conviction and sentence, but complain about a violation of their rights under the Covenant as a result of the continuing application to them of the special penitentiary regime provided for by article 4-bis (1) of the Penitentiary Act. Thus, the violation of which they complain is a continuing violation stemming from the application/implementation of a legislation which is incompatible with the State party’s international obligations.

Since article 4-bis is still in force in the Italian legal system, the violation continues unabated to date. It follows that the authors’ right to petition the Committee under article 2 of the Optional Protocol is not subjected to any time-limit. In a number of cases, the Committee itself has recognised that the authors complained of a “continuing violation of human rights” and has, consequently, relieved them from the requirements of admissibility ratione temporis.²⁰ The same approach has been followed in the case of Blessington and Elliot v. Australia.²¹ The authors in that case had been convicted and sentenced to life imprisonment in 1990, but submitted their communication in 2010 to complain of the penitentiary regime imposed on them. Still, the Committee deemed the application admissible and found a violation of articles 7, 10 (3) and 24 of the Covenant.

20. See Arab Millis v. Algeria (CCPR/C/122/D/2398/2014), para. 7.4, and cases therein cited, regarding the continuing nature of the violations entailed by “enforced disappearance”. ↩
21. CCPR/C/112/D/1968/2010. ↩

The authors argue that a similar conclusion has been reached by the European Court of Human Rights when dealing with applications concerning the lack of “fair prospect of release” in the context of life imprisonment.²² In none of these cases did the European Court or the Committee declared the case inadmissible ratione temporis, notwithstanding the fact that the sentence of life imprisonment was imposed many years before the submission of the complaints. More importantly, in none of these cases did the respondent Government argue that the complaint was inadmissible on grounds of delay in submission.²³

22. See, for example, European Court of Human Rights, Vinter and Others v. the United Kingdom; Murray v. the Netherlands [GC], no. 10511/10, 26 April 2016; and Petukhov v. Ukraine (No. 2), no. 41216/13, 12 March 2019. ↩
23. See Blessington and Elliot, para. 6.3. ↩

On 1 October 2019, the State party provided its observations on admissibility and the merits. It first clarified some errors as to the spelling of some authors’ names, date of birth and the prison where they are currently held. It also noted that: Pellegrino Cataldo (3383/2019) was released from prison; Salvatore De Santo (3410/2019), Stefano Ganci (3445/2019) and Pasquale Mazzocchi (3487/2019) have died; Gaetano Fiandaca (3435/2019) is under work-release regime; and Carmine Gerace (3450/2019), Salvatore Nicastro (3499/2019) and Aurelio Quattroluni (3529/2019) are under home detention.

The State party submits that any convicted person serving a life imprisonment for the very serious crimes set forth in article 4-bis (1) of the Penitentiary Act (life imprisonment without parole) has the legal means to apply for a conditional release by submitting to the Oversight Judge the results of his or her actual rehabilitation and cooperation with the justice, the latter being deemed by the law as having undeniable value of indicator of full dissociation from the criminal environment to which the convicted used to belong. The State party explains that the Constitutional Court – on many occasions – has found the possible reduction of the life sentence as a concrete prospect for the person with a life sentence, on the one hand by excluding from limitations to penitentiary benefits cases when cooperation was impossible or irrelevant, and on the other one, by dismissing the assumption that the current discipline of the life imprisonment without parole results in an automatic impediment to penitentiary benefits, and rather consider it being a deliberate choice of the convicted.

On the merits, the State party submits that the mafia association is characterized by the particular strength of the bond among the members and their common aim to guarantee the life of the group and its ever-increasing success. It follows that the main and genuine indicator of an actual dissociation from mafia membership and its underlying criminal values is cooperation with justice. As noted by the Constitutional Court,²⁴ it is a deliberate choice of an applicant to demonstrate effective and actual rehabilitation and dissociation from the very criminal context to which he or she belonged. And given the peculiarity and the very seriousness of the crimes at stake, endorsed by affinity with the association through subjection, silence and fidelity of its members, the State party considers that its law legitimately – under the Constitution – requires a tangible demonstration of the completion of the alleged rehabilitation course and dissociation from the criminal values at the basis of the offences committed through an effective cooperation aimed at the disintegration of that context and the re-establishment of legality. The legislative choice to consider the cooperation as the main evidence of rehabilitation is strictly connected to the seriousness and the peculiarity of the crimes committed.

24. No reference provided. ↩

The State party points out that persons sentenced to life imprisonment can still benefit under article 4-bis of the Penitentiary Act from other favourable measures, such as early release and emergency leave permits in case of imminent risk to their relatives’ life or in case of very serious and urgent familiar events. Moreover, it is always possible under the law to postpone the execution of a sentence for serious physical infirmity²⁵ or mental illness,²⁶ which – for the State party – makes the system compliant with the Covenant even when serving a life sentence for crimes in accordance with article 4-bis.

25. Article 147 of the Criminal Code. ↩
26. Article 148 of the Criminal Code. ↩

The State party notes that in accordance with the legislation in force, penitentiary benefits could be granted even when the cooperation with judiciary is impossible or irrelevant – “impossible” because facts and relating responsibility have already been clarified or “irrelevant” because the marginal position of the convicted within the association does not allow him or her to know facts and participants at a superior position in the criminal organisation. The State party refers to several domestic decisions – where the possibility or the usefulness of cooperation was examined – to explain that the concrete application of article 4-bis is based on in-depth judicial assessment, on a case-by-case basis and unrelated to any automatism, with regard to the existence of the conditions for granting penitentiary benefits, even in the absence of collaboration, to a person convicted of one of the crimes strictly indicated by the law.

In concreto, the Italian courts have deemed that cooperation was not useful when the convicted played a marginal role within the mafia association²⁷ or when the mafia association had disintegrated.²⁸ Also significant is a decision of the Court of Naples, which has assessed as objectively impossible the collaboration of an affiliate who, despite his important role in the association, had played his role exclusively outside of Italy and would have knowledge only of activities abroad.²⁹ Also, courts have found useless the cooperation of a person with a life sentence condemned for mafia crimes as associated of the mafia organization called Stidda, established in the 1980’s thanks to the fragmentation of the major mafia group called Cosa Nostra, due to the fact that after a long time, the former Stidda had been completely replaced by different members and former associates had been all detained or had collaborated with the justice system.³⁰ In addition, cooperation was not required from a mafia associate given the long time spent in detention, the full ascertainment of the facts during the trial and the lack of connections with the clan.³¹ Finally, the Supervisory Court of Aquila granted penitentiary benefits to persons with a life sentence sentenced for mafia crimes when there were alternative options aside from cooperation in place.³²

27. Order No. 771/17, Tribunale di Sorveglianza di Catanzaro, 25 July 2017 (Liuzzo); and Order No. 1316/16, Tribunale di Sorveglianza di Catanzaro, 17 November 2016. ↩
28. Order No. 3241/15, Tribunal Court of Naples, 9 November 2016 (Di Giacomo); and Order No. 3064/17, Tribunale di Sorveglianza di Milano, 7 February 2018 (Puzzangaro). ↩
29. He activated in Colombia, so there was no proof that he knew the associative dynamics besides those related to his activity in South America – see Naples Court order of 20 June 2002. ↩
30. Order No. 15/237, Tribunale di Napoli, 23 January 2015; and Order No. 16/4590, Tribunale di Napoli, 9 November 2016. ↩
31. Order No. 6772/15, Tribunale di Napoli, 20 December 2017 (Galatolo). ↩
32. Order No. 913/2017, Tribunale di Sorveglianza l’Aquila, 7 May 2017; and Order No. 1145/2015, Tribunale di Sorveglianza l’Aquila, 9 July 2015 (Minardi). ↩

The State party then refers to a decision of the Court of Cassation where it pointed out the burden on the applicant to provide the elements that would establish the fact that his cooperation with the authorities is either impossible or irrelevant and where it indicated the judge’s responsibility to consider all the elements in order to ascertain, in practice, whether the obligation of cooperation exists or not.³³ The judge therefore has an obligation to examine the original facts retained in the judgment in the case and the elements produced by an applicant in order to determine whether his cooperation with the justice would be useful or rather impossible or irrelevant because the facts and his relating responsibility had already been clarified or because he only held a marginal position within the criminal association.

33. Cass. section I, No. 29217, 6 June 2013. ↩

As to the prospect of a person with a life sentence under the regime of article 4-bis of the Penitentiary Act to engage in rehabilitation activities with a view to a possible early release, the State party considers that the system is certainly complying with the Covenant. The peculiar seriousness of crimes for which a life sentence may be imposed justifies the granting of penitentiary benefits, such as conditional release, only in favour of those who have irrefutably demonstrated to have ceased any relation with their criminal past.

The State party makes a reference to a recent ruling by the European Court of Human rights “on the matter under reference”³⁴ and points out that in its judgment, the Court has stressed that “article 3 [of the European Convention on Human Rights] required a prospect of release but not a right to be released if the prisoner was deemed at the close of the review to still be a danger to society”.³⁵

34. Marcello Viola v. Italy (no. 2), no. 77633/16, 13 June 2019. ↩
35. The State party claims that this quote is from the “European Court’s Press Unit Factsheet on Life Imprisonment, dated July 2019”. ↩

In their comments of 17 December 2019, the authors contest the State party’s observations. As regards the State party’s argument that some of the authors may have access to probation measures following an assessment of the “impossible” and/or “irrelevant” nature of their cooperation, the authors claimed that such an allegation needs to be assessed in light of the relevant information the collection of which is particularly laborious, hence they reserved the right to respond in full to the State party’s remarks in this respect as soon as such information would be available.

On the merits, the authors note that the State party’s observations are rather generalizations instead of specific responses to their claims under articles 7 and 10 (1) and (3) of the Covenant. They recall that following a judgment by the Constitutional Court on 21 September 1983,³⁶ life prisoners benefit from the “indirect effect” of early release. This means that, under article 54 of the Penitentiary Act, a life prisoner “who has given proof of participating in the [rehabilitation] programmes” can gain a reduction of the period of time of 26 years which is established as the minimum time to be served by a life prisoner before qualifying for conditional release under article 176 of the Criminal Code. However, under article 4-bis of the Penitentiary Act, for the authors and all prisoners serving under the regime of life imprisonment without parole, conditional release under article 176 of the Criminal Code is subject to cooperation with the authorities under article 58-ter of the Penitentiary Act – irrespective of the minimum period of time served as well as of their participation in the rehabilitation programmes. Against this background, it cannot be concluded that the authors’ access to early release – or to leave permits under article 30 of the Penitentiary Act – bear any relevance in the present case.

36. Constitutional Court, Judgment No. 274 of 21 September 1983. ↩

As to the domestic case law referred to by the State party to illustrate cases in which cooperation was deemed to be impossible or irrelevant, the authors consider that it actually shows that for all the other prisoners whose cooperation is not legally impossible or irrelevant – but merely costly for personal, family or other reasons, such as in the authors’ case – access to parole measures in the absence of cooperation remains an illusion. In that connection, the authors refer to the case of Marcello Viola v. Italy, where the European Court of Human Rights dismissed the Italian Government’s argument that article 4-bis does not rule out a prospect of release, since the choice to cooperate rests with the prisoner. Quite the contrary, the European Court doubted the freedom of this choice and the appropriateness of establishing an equivalence between the failure to cooperate and the social dangerousness of the offender, and concluded that failure to cooperate cannot always be linked to a free and voluntary choice, nor can it be solely justified by persistent adherence to “criminal values” and the maintenance of links with the group to which one belongs.³⁷

37. Marcello Viola v. Italy (no. 2), paras. 116 and 118. ↩

Against this background, the European Court concluded that the absolute and non-rebuttable presumption contained in article 4-bis of the Penitentiary Act prevents de facto the competent court from examining the application for conditional release and determining whether, during the course of his sentence, the applicant has developed and made progress towards reform to such an extent that continued detention is no longer justified on penological grounds.³⁸ The same can be said of a very recent judgment in which the Italian Constitutional Court³⁹ found that article 4-bis of the Penitentiary Act contravenes the principle that penalties must tend to the rehabilitation of the prisoners (codified in article 27 (3) of the Constitution) in that it rules out the possibility to access special leaves under article 30 of the Penitentiary Act in the absence of the cooperation required by article 58-ter of the Penitentiary Act.

38. Ibid., para. 129. ↩
39. Judgment No. 253 of 4 December 2019. ↩

According to the authors, the Constitutional Court criticized the mechanism introduced by article 4-bis because it represented a “trade between information that are useful to the investigative authorities and the possibility, for the prisoner, to access the ordinary path toward rehabilitation.”⁴⁰ It thus found article 4-bis of the Penitentiary Act to be: (i) unreasonable, to the extent that it makes a sentence of imprisonment more or less serious based on the prisoners’ willingness to cooperate; (ii) disproportionate, as it disconnects the actual duration of a prison sentence from the seriousness of the charge on which the prisoner has been found guilty; and (iii) contrary to the principle of rehabilitation, since it infringes upon the right to remain silent.⁴¹ Hence it concluded that, as a result of the automatic character of article 4-bis, the Surveillance Judges and the Surveillance Tribunals are precluded from making an individual assessment on whether, in a given case, continuing detention of a prisoner is called on legitimate penological grounds.⁴²

40. Ibid., para. 8.1. ↩
41. Idem. ↩
42. Ibid., para. 8.2. ↩

However, the authors specify that the none of them will directly benefit from the Constitutional Court judgment because that case did not concern the life imprisonment without parole, but merely the provision of article 4-bis – as applied to any prisoner, and not only to life prisoners – and its compatibility with article 27 (3) of the Constitution as far as a request of special leave under article 30 of the Penitentiary Act was at stake. In the words of the Constitutional Court, “[t]he questions of constitutionality raised do not concern […] the so-called ergastolo ostativo [life imprisonment without parole], whose compatibility with the European Convention on Human Rights has recently been assessed by the European Court of Human Rights in the case […] of Viola v. Italy”.⁴³

43. Ibid., para. 5.2. ↩

On 19 June 2020, the State party provided further updates as to the place where some of the authors were detained. It also informed that: Giuseppe Barbagallo (3347/2019), Gianfranco Bruni (3363/2019) and Pellegrino Cataldo (3383/2019) were released; Gaetano Fiandaca (3435/2019), who was under work-release regime, “has been at home;”⁴⁴ Carmine Gerace (3450/2019) and Aurelio Quattroluni (3529/2019) have been under home detention, but eventually re-entered the prison; and Nicola Solazzo (3555/2019), who was under home detention, has died. On 5 November 2024, the State party informed the Committee that Giuseppe Garofalo (3447/2019) was released; and Amedeo Genovese (3448/2019), Filippo Gerace (3449/2019) and Mario Serpa (3552/2019) have died.

44. No further details. ↩

On 29 April 2023, the authors informed about the wish of Aurelio Cavallo (3384/2019) and Claudio Conte (3393/2019) to withdraw their communications.⁴⁵ On 2 October 2024, the authors informed that Giuseppe Di Benedetto (3413/2019) and Francesco Di Dio (3415/2019) have passed away. They also mentioned that Francesco Borrata (3358/2019) was not sentenced to life imprisonment.

45. No further details. ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether it is admissible under the Optional Protocol.

As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the information provided by the State party that: Salvatore De Santo (3410/2019), Stefano Ganci (3445/2019), Amedeo Genovese (3448/2019), Filippo Gerace (3449/2019), Pasquale Mazzocchi (3487/2019), Mario Serpa (3552/2019) and Nicola Sollazzo (3555/2019) have died; authors Giuseppe Barbagallo (3347/2019), Gianfranco Bruni (3363/2019), Pellegrino Cataldo (3383/2019) and Giuseppe Garofalo (3447/2019) have been released; and Gaetano Fiandaca (3435/2019), Carmine Gerace (3450/2019), Salvatore Nicastro (3499/2019) and Aurelio Quattroluni (3529/2019) have benefited from alternative measures to detention such as work-release regime and home detention (although Carmine Gerace (3450/2019) and Aurelio Quattroluni (3529/2019) have eventually re-entered the prison). The authors have not commented on these allegations. The Committee also notes that according to the information provided by the authors, Giuseppe Di Benedetto (3413/2019) and Francesco Di Dio (3415/2019) have passed away. Therefore, the Committee considers that the communications relating to Giuseppe Barbagallo (3347/2019), Gianfranco Bruni (3363/2019), Pellegrino Cataldo (3383/2019), Salvatore De Santo (3410/2019), Giuseppe Di Benedetto (3413/2019), Francesco Di Dio (3415/2019), Gaetano Fiandaca (3435/2019), Stefano Ganci (3445/2019), Giuseppe Garofalo (3447/2019), Amedeo Genovese (3448/2019), Filippo Gerace (3449/2019), Carmine Gerace (3450/2019), Pasquale Mazzocchi (3487/2019), Salvatore Nicastro (3499/2019), Aurelio Quattroluni (3529/2019) and Nicola Solazzo (3555/2019) have become moot and that their consideration should be discontinued. The Committee also discontinues the communications relating to Aurelio Cavallo (3384/2019) and Claudio Conte (3393/2019), who manifested their wish to withdraw their communications.

The Committee notes the authors’ declaration regarding the delay in bringing their case before the Committee. While they were given life sentences between 1977 and 2014 and some of them were aware of the automatic application of article 4-bis as early as 1993, they consider that the principle laid down in rule 99 (c) of the Committee’s rules of procedure which states that a communication may constitute an abuse of the right of submission, when it is submitted after five years from the exhaustion of domestic remedies does not apply to them because they do not challenge their conviction, but complain of the continuing violation of their rights under the Covenant, which is still ongoing and in respect of which they have no effective remedy at their disposal. The authors explain that since 1993, the Constitutional Court has consistently ruled that the penitentiary regime raised by the authors does not infringe the Italian Constitution. They also argue that there is no remedy in the Italian legal system that would allow them to effectively claim their rights before a competent domestic authority as required by article 2 of the Covenant.

The Committee considers that the five-year delay provided by rule 99 (c) should be calculated from the moment when the authors became aware of the fact that they did not have at their disposal a remedy to complain about the effects of the regime implemented by article 4-bis (1) of the Penitentiary Act in 1975. The Committee considers that the authors did not provide a convincing explanation about the important delay in submitting their complaints to the Committee since they should have been aware of their prospect of release or lack thereof since the moment they received their final judgment. Therefore, the Committee considers that the communications fall under the provisions of rule 99 (c) of its rules of procedure. The Committee thus declares the communication inadmissible under article 3 of the Optional Protocol and under rule 99 (c) of the Committee’s rules of procedure in respect of the 204 authors who received a final judgment by 21 March 2013.

In this connection, the Committee notes that Giuseppe Garofalo (3447/2019), Leonardo Greco (3456/2019), Luigi Maesano (3475/2019) and Sergio Palumbo (3507/2019) have not provided the date of the final judgment that sentenced them to life imprisonment. It also notes that Francesco Borrata (3358/2019) was not sentenced to life imprisonment and failed to explain how the regime implemented by article 4-bis (1) of the Penitentiary Act affected him. The Committee therefore finds that these authors have failed to substantiate their claims for the purpose of admissibility and consequently declares their communications inadmissible, pursuant to article 2 of the Optional Protocol.

The Committee notes the authors’ allegation under article 7 of the Covenant that cooperation remains the only alternative to serving a whole-life sentence, which constitutes a form of psychological torture, inhuman and degrading treatment. The Committee notes, on the one hand, that the authors do not explain – with express reference to article 7 – how the substantive aspect of that article was violated in their case. On the other hand, as far as the procedural aspect of article 7 is concerned, the Committee notes the State party’s explanation – supported by several examples of domestic jurisprudence – that any person serving a life imprisonment for the very serious crimes set forth in article 4-bis (1) of the Penitentiary Act can apply for conditional release to the Oversight Judge and argue about impossibility or irrelevance of cooperation with the justice.⁴⁶ The Committee therefore notes that the authors still have avenues to request conditional release. It thus considers that the authors have also failed to substantiate the procedural aspect of their claim under article 7 of an alleged absolute and permanent prohibition of access to parole or other probation measures (see para. 5.1). Consequently, the Committee considers that the claims under article 7 of the Covenant have not been sufficiently substantiated and are therefore inadmissible under article 2 of the Optional Protocol.

46. See the jurisprudence of the Court of Cassation, cited by the European Court of Human Rights in Viola v. Italy (no. 2), paras. 45 and 46. ↩

The Committee also notes that the option invoked by the State party as a way to overcome the restrictive effects of article 4-bis remains directly linked to an individual’s decision to cooperate with the authorities rather than on reformation and social rehabilitation of the prisoner, as provided by article 10 (3) of the Covenant. In that sense, the Committee notes that, in 2019, the Italian Constitutional Court has concluded that, as a result of the automatic character of article 4-bis, the Surveillance Judges and the Surveillance Tribunals are precluded from making an individual assessment on whether, in a given case, continuing detention of a prisoner is called on legitimate penological grounds (para. 5.5). Therefore, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the claim under article 10 (1) and (3) of the Covenant.

The Committee therefore finds that the claim based on article 10 (1) and (3) of the Covenant for the remaining authors has been sufficiently substantiated for the purposes of admissibility. Accordingly, the Committee declares the claim admissible and proceeds with its consideration of the merits.

The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

The Committee notes that the issue in the present case is the compatibility with State party’s obligations under article 10 (1) and (3) of the Covenant, of the regime put in place by article 4-bis (1) of the Penitentiary Act to exclude from parole or other probation measures the authors, who have been sentenced to life imprisonment for some serious crimes unless they cooperate with the investigative or judicial authorities.

The Committee recalls its general comment no. 21 (1992) in which it declares that no penitentiary system should be only retributory and that it should essentially seek the reformation and social rehabilitation of the prisoner.⁴⁷ It also recalls that rehabilitation of prisoners must be understood as emphasizing not their exclusion from the community, but their continuing part in it.⁴⁸ Therefore, prisoners sentenced to life imprisonment are entitled to know what steps they can take in order to be considered for rehabilitation and release.⁴⁹

47. Para. 10. ↩
48. Rule 88 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules). ↩
49. Alieva v. Ukraine, para. 7.5. ↩

The Committee considers that the imposition of life sentences on the authors can only be compatible with article 10 (1) and (3) of the Covenant if there is a possibility of review and a prospect of release, notwithstanding the gravity of the crime they committed and the circumstances around it.⁵⁰ As it has already clarified in Blessington and Elliot v. Australia, that does not mean that release should necessarily be granted. It rather means that release should not be a mere theoretical possibility and that the review procedure should be a thorough one, allowing the domestic authorities to evaluate the concrete progress made by the authors towards rehabilitation and the justification for continued detention.⁵¹ The Committee further considers that any decisions taken pursuant to such applications should be reasoned and subject to judicial review.⁵²

50. Mutatis mutandis, Blessington and Elliot v. Australia, para. 7.7. ↩
51. Idem. ↩
52. Alieva v. Ukraine, para. 7.6. ↩

The Committee therefore needs to examine whether the authors’ access to parole or other probation measures being contingent on their cooperation with the judicial authorities is compatible with the requirement under article 10 (3) that the essential aim of detention is reformation and social rehabilitation. The Committee notes that the ban on access to prison benefits for those who do not collaborate is expressly provided by the Italian law as an exception to the life imprisonment regime in case of a number of serious crimes. While the Committee does not question the State’s entitlement to establish policies to cope with the organized crime, it nonetheless needs to examine whether the effective application of such policies does not end up in excessively restricting the prisoner’s prospect of release.

The Committee notes that according to the State party, cooperation amounts to a tangible demonstration of rehabilitation and dissociation from criminal values and the convicted has a choice whether to cooperate. However, the State party does not discuss at all the fact that in the context of mafia-type structures, members are usually bound by a code of silence. In these circumstances, a person may choose not to cooperate for reasons related to risk to life and personal security. While the State party sees cooperation as the ultimate proof of rehabilitation, the Committee considers that cooperation is not necessarily a free personal choice, and that lack of cooperation does not necessarily mean absence of rehabilitation or refusal of dissociation from the criminal values.⁵³

53. Marcello Viola v. Italy (no. 2), paras. 116 and 118; and Italian Constitutional Court, Judgment No. 253 of 4 December 2019. ↩

The Committee further notes that domestic courts make a primarily automatic application of the rule contained in article 4-bis (para. 2.5), based on the principle of cooperation, rather than on penological grounds. In the circumstances of such a strict conditionality, it was impossible for the authors to show that there were no longer any legitimate reasons of a penological nature to justify their continued detention and thus to be able to benefit from parole or other probation measures. By establishing by law the equivalence between failure to cooperate and the irrebuttable presumption of dangerousness to society – and thus making access to probation measures contingent upon cooperation – the current regime fails to consider any rehabilitation progress other than cooperation with the authorities.⁵⁴

54. European Court of Human Rights, Marcello Viola v. Italy (no. 2), para. 128. ↩

In the light of the above considerations, the Committee considers that the lack of a possibility of judicial review and of a realistic prospect under the State party’s legal framework for the authors to be eligible for parole or other probation measures in absence of cooperation upsets the essential aim of the penitentiary system – which should aim at reformation and social rehabilitation – and is thus contrary to article 10 (1) and (3) of the Covenant.⁵⁵

55. The Committee notes that in March 2023, the Committee of Ministers of the Council of Europe examined the execution of the judgment of the European Court of Human Rights in the case of Marcello Viola v. Italy (no. 2) and noted with satisfaction the legislative reform of article 4-bis of the Prison Administration Act, which introduced the possibility for prisoners who fail to cooperate with the justice system to be eligible for release on parole, thus responding to the indications of the European Court and the previous call of the Committee of Ministers (CM/Del/Dec(2023)1459/H46-13). ↩

The Human Rights Committee, acting under article 5 (4) of the Optional Protocol and having discontinued consideration of the communications of 18 of the authors (see para. 8.3 above and annex I) and having declared the communication inadmissible in respect of the authors who received a final judgment by 21 March 2013 (see para. 8.5 above and annex I) and of those who have not provided the date of the final judgment that sentenced them to life imprisonment or have not been sentenced to life imprisonment (see para. 8.6 above and annex I), is of the view that the State party has violated the rights of the 26 remaining authors under article 10 (1) and (3) of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide those authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State party is obligated to provide the authors with an effective remedy. The State party is under an obligation to take steps to prevent similar violations through an appropriate review mechanism in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State party is also requested to publish the present Views and to have them widely disseminated in the official language of the State party.