ECHR judgment of 13 June 2019 in the case of Marcello Viola v. Italy (N 2) (Marcello Viola v. Italy) (N 2) (application N 77633/16).
In 2016, the applicant was assisted in preparing the application. Subsequently, the application was communicated by Italy.
The case has successfully examined the application about the possibility of parole of a person convicted of participation in the activities of the mafia to "real life imprisonment", only if he cooperates with the justice authorities. The case contained a violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
In 1999, the trial court, and in 2002 the appellate court sentenced the applicant to life imprisonment for being a member of the criminal community of the mafia, taking into account the fact that he was its head as an aggravating circumstance. In such cases, the default penalty is “real life imprisonment”. According to Italian law, any possibility of the release of such a convict depends on his cooperation with the judiciary: he must provide important information to prevent the commission of a crime or to simplify the establishment of the facts and identities of criminals (unless this cooperation is impossible or cannot be requested and when the convict has proved the gap any connections with the mafia group).
However, the applicant refused any cooperation and explained his refusal by the fact that he considered himself innocent, as well as the fear of persecution of himself or his family members. Accordingly, although as a result of participating in the reintegration program, the applicant already had the right to deduct five years from the term of his potential punishment, in practice he was deprived of this opportunity.
Thus, by refusing the applicant to satisfy the requirement of his parole, the court on the application of punishments indicated that the applicant had no cooperation with justice, without going into details of the assessment of the possible successes that the applicant allegedly achieved after his conviction.
QUESTIONS OF LAW
Application of Article 3 of the Convention (substantive aspect).
(i) Prospects for exemption and the possibility of demanding conditional exemption. In the present case, Italian law did not prohibit in absolute terms and automatically the possibility of parole and access to other rights within the framework of the penal system, but linked them to “cooperation with justice”. In connection with the presence of an aggravating circumstance - the leadership of a mafia group for whose participation he was convicted, it could not be recognized that the applicant’s possible cooperation was “impossible” or that he “could not be required” within the meaning of Italian law.
Of course, the laws of the respondent state provided the convict with a choice as to whether to cooperate with justice or not. However, the Court doubts the freedom of this choice, as well as the possibility of establishing the equivalence between the lack of cooperation and the social danger of the convict. Lack of cooperation cannot always be a free and voluntary decision and does not necessarily reflect a commitment to “criminal values” and links with a criminal group.
Refusal to cooperate may be due to other circumstances or reasons (such as fear of persecution of the convicted person or members of his family) and, conversely, consent to cooperation may result from personal gain. In this case, the alleged equivalence between the lack of cooperation and the irrefutable presumption of public danger does not correspond to the real process of re-educating the applicant.
The Court has already established, in the light of Article 5 of the Convention, that the legitimate presumption of a threat to public order can be justified, in particular when it is not absolute, but must be refuted by the presentation of evidence to the contrary. This is all the more true of article 3 of the Convention, the absolute nature of which does not allow exceptions. Nevertheless, to consider cooperation with the authorities as the only possible manifestation of the “dissociation” of the convicted person and his correction means not to take into account other criteria that make it possible to evaluate the success of the convicted person.
In the present case, the Italian penal system offered a wide range of gradual possible contacts with society, from work outside the penitentiary institution to parole, with leave permits and temporary release as intermediate stages, the purpose of which was to facilitate the process of social reintegration of the prisoner. However, the applicant was not able to take advantage of these opportunities for social reintegration, although the various information contained in his personal file indicated positive changes in the identity of the applicant and the results of his reintegration process.
The identity of the convicted person does not remain unchanged from the moment the crime was committed: it can change during the execution of the sentence, as required by the function of social reintegration. However, in the present case, the lack of “cooperation with justice” implies an irrefutable presumption of a threat to public safety, which deprives the applicant of a real chance of release. Any evidence presented by the applicant that there are no criminal-law reasons justifying his further deprivation of liberty becomes impossible: by establishing the equivalence between the lack of cooperation and the irrefutable presumption of a threat to public safety, the current punishment regime actually connects the danger posed by the person, with the moment of his commission of crimes instead of taking into account the process of social reintegration and possible positive changes knowledge reached by him from the moment of conviction.
This irrefutable presumption de facto prevents the competent court from considering the application for parole and finding out if the applicant’s behavior changed for the better during his sentence so much that his further deprivation of liberty was not justified by criminal reasons. The intervention of a judge is limited by the finding of non-compliance with the conditions of cooperation, and the court cannot assess the individual progress of the applicant and his changes in relation to social reintegration.
Of course, the crimes for which the applicant was convicted are especially dangerous to society. The reform of the penitentiary regime, of which the punishment regime under consideration is part, was carried out (in 1992) in an atmosphere of urgent need after a very significant event for Italy. At the same time, the fight against the mafia cannot justify the suspension of the provisions of Article 3 of the Convention, which in absolute terms prohibits inhuman and degrading punishment. Otherwise, the function of social reintegration is aimed, ultimately, at preventing relapse and protecting society.
(ii) Domestic remedies aimed at reviewing a case. As regards the possibility of a pardon or release for humanitarian reasons (such as old age or a state of health), the Court has already concluded that these funds are not consistent with the phrase “prospect of release” used in the judgment of the Grand Chamber of the European Court of Justice The Kafkaris v. Cyprus case of February 12, 2008, complaint No. 21906/04. The rest of the Italian authorities did not cite examples where a convict who was in the same position as the applicant would have achieved a change in the procedure for serving a sentence as a result of a pardon by the president.
(iii) Conclusion. The punishment regime that applied to the applicant unduly limited his prospects for release and the possibility of reviewing the type of punishment assigned to him. In this regard, life imprisonment cannot be considered as allowing the possibility of parole, which violates the principle of respect for human dignity inherent in the Convention and its Article 3, in particular (the Court has specified, however, that this conclusion cannot be interpreted as giving the applicant the possibility of immediate release).
In the case there was a violation of the requirements of Article 3 of the Convention (adopted by six votes in favor and one against).
Application of Article 46 of the Convention. The nature of the violation indicated indicates that the Italian authorities should, preferably by changing the law, reform the sentence of life imprisonment in order to guarantee the possibility of reviewing this type of punishment, and allowing: (i) the authorities to determine whether the applicant’s behavior has changed for the better the party during the time that he was serving his sentence so that his further deprivation of liberty could not be further justified by reasons of a criminal law nature, ii) the convicted person knew that he needed to do so could be considered the possibility of his release and what are installed for this condition. The gap of the convict with the mafia environment can manifest itself not only through cooperation with justice, as it is automatically provided for by the current legislation of Italy. However, the Court clarified that the possibility of demanding release does not necessarily deprive the authorities of the opportunity to reject such a request if the convicted person continues to pose a danger to society.
In application of Article 41 of the Convention. The Court held that finding a violation of the Convention would in itself constitute sufficient just satisfaction.