The new decree on life imprisonment launched by the government sterilizes the judgment of the Council. The documents are returned to the Supreme Court, which had solicited the judgment of constitutionality and which will now have to verify whether the new legislation overcomes the doubts of legitimacy of article 4 bis of the penitentiary system. This is the solution requested at the hearing by the state advocacy. The new provisions, in fact, “immediately and directly” affect the rules subject to the judgment of constitutional legitimacy, the Council admits in a short note in which, pending the reasons, it anticipates the decision. As requested by the Court as a matter of priority in its order of April 2021, the decree transformed from “absolute” into “relative” the presumption of dangerousness that prevents the granting of benefits and alternative measures in favor of all those convicted of so-called crimes obstacles and who have not collaborated with justice. They – the Court points out – are now allowed to ask for benefits, albeit in the presence of new, “stringent and concomitant conditions”, which differ according to the crimes for which they have been convicted.
The Council had given the Parliament 18 months to reform the legislation asking to eliminate the automatism on the presumption of social dangerousness for those who do not collaborate. The bill was not approved by the end of the legislature, and on October 31, a few days before the hearing, the government intervened as the first act with a decree law, along the lines of the bill examined by the Chamber. The text has delegated the decision to the evaluation of the supervisory judge, but has also raised the threshold of years after which it is possible to request benefits from 26 to 30 and introduced stringent requirements. In particular, it requires the detainee to provide “specific elements” that make it possible to exclude the actuality of links with organized crime or the risk of re-establishing such contacts.
Prime Minister Meloni, illustrating the contents of the text at the conference, claimed the decree as part of the government’s strategy which considers “the fight against the mafia a priority”. In the hearing this morning, the state lawyer Ettore Figliolia had argued that “the government legislator was slavish with what was required by the order of the Consulta” and asked for the restitution of the proceedings to the Supreme Court. According to the lawyer Giovanna Beatrice Araniti, defender in the case being examined by the Supreme Court, “the principle of the rehabilitation function of the penalty must apply to everyone” and the decree represents the “death of the right to hope”. Even if the text will have to be converted into law within 60 days, the Constitutional Court has assessed that the decree already intervenes on the matter submitted to its judgment. Now the word goes back to the Meloni Supreme Court.
The position taken by the Hands Off Cain association
«A Pilates-like choice that of the Constitutional Court, which had at the time ascertained the unconstitutionality of article 4bis but never declared it. Surely the Court washed its hands of it. ‘ So Hands Off Cain after the Constitutional Court’s decision on life imprisonment. “We ask ourselves where its high function has ended, which is to evaluate the laws – say in a note Rita Bernardini, Sergio d’Elia and Elisabetta Zamparutti -. The Court made the paper pass: first to Parliament with two postponements – the first of one year and the second, particularly serious, of another six months – and then to the Supreme Court to which, as requested by the Government, it returned the documents for an evaluation of the decree “. «The Constitutional Court – according to the association – has decided not to decide and, by returning the documents, has stripped itself of the role of judge of the laws and handed it over to the executive. We remind everyone, including the Constitutional Court, that Italy is still under observation by the Committee of Ministers of the Council of Europe for compliance with the pilot sentence Viola against Italy, sponsored by the lawyer Antonella Mascia and supported with an amicus curiae also by Hands off Cain, a sentence that sanctioned the systematic violation of Article 3 of the Convention related to the discipline of Article 4 bis and affirmed the right to hope as a fundamental human right “
Where does the life imprisonment come from?
Life imprisonment is a penalty that was introduced in the early nineties, following the massacres in which judges Giovanni Falcone and Paolo Borsellino lost their lives.
This penalty is governed by article 4 bis of the penitentiary system and essentially establishes that all those who are convicted of crimes of particular gravity, such as those relating to organized crime, terrorism or subversion, cannot access those who they are known as “penitentiary benefits” and alternative detention measures.
It follows that the persons to whom this sentence is assigned cannot access conditional release, external work, semi-release and prize-permits; due to the severe limitations that the sentence imposes on prisoners, life imprisonment is also known with the nickname of “never ending sentence”.