The Grand Chamber of the European Court of Human Rights (ECHR) in Strasbourg rejected a request for referral under article 43 of the European Convention on Human Rights (Convention) by Italy last week making the Chamber’s October 7th decision in the case Marcello Viola v. Italy a final judgment.

The ECHR has decided that an “irreducible life sentence” according to articles 41-bis (English translation) and 58-ter (English translation) of the Italian Penitentiary Act-Law no 354 of 26 July 1975, a measure known as “ergastolo ostativo,” in conjunction with article 22 of the Italian Criminal Code breaches the European Convention on Human Rights. This law grants specific benefits for offenders convicted of serious crimes unless the sentenced person has cooperated with justice and provided that there are no links with organized crime. Examples of include crimes perpetrated with aims of terrorism or subversion, mafia-type association and any crime committed with the purpose of facilitating the activity of mafia-type associations. More specifically, in the Marcello Viola case the Court recognized a violation of article 3 of the Convention accepting that:

“…it would be incompatible with human dignity – which lay at the very essence of the Convention system – to deprive persons of their freedom without striving towards their rehabilitation and providing them with the chance to regain that freedom at some future date”, and the same time it acknowledged that Contracting States enjoy “a wide margin of appreciation in deciding on the appropriate length of prison sentences, and the fact that a life sentence might in practice be served in full did not mean that it was irreducible. Consequently, the possibility of review of life sentences entailed the possibility for the convicted person to apply for release but not necessarily to be released if he or she continued to pose a danger to society”.

In this case, Mr. Viola was convicted on mafia charges. Based on the aforementioned article 3, as well as article 8 of the Convention, Viola complained his life sentence was with no prospect of release on license and that the Italian prison regime was incompatible with rehabilitation and social reintegration. Upon holding that “the finding of a violation could not be understood as offering the applicant the prospect of imminent release,” the judgment did not overlook the seriousness of Viola’s crimes but fell short of calling for his release. Choosing to uphold the prohibition of inhuman and degrading treatment that is absolute according to the Convention:

“[t]he Court recognised the fact that the offences of which Mr Viola had been convicted concerned a particularly dangerous phenomenon for society. However, efforts to tackle that scourge could not justify derogating from the provisions of Article 3 of the Convention, which prohibited in absolute terms inhuman or degrading treatment”.

Therefore, Strasbourg has decided, within the scope of a modern prison, to value integration back to society and not retribution for the criminal act committed. This is openly reflected in the judgment’s wording:

“In the Court’s view, 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, which enabled individuals to review their criminal past critically and rebuild their personality… By continuing to equate a lack of cooperation with an irrebuttable presumption of dangerousness to society, the rules 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. The presumption of dangerousness also prevented the competent courts from examining applications for release on licence and from ascertaining whether the person concerned had changed and made progress towards rehabilitation, such that his or her detention was no longer justified… Thus, the Court considered that the life sentence imposed on Mr Viola under section 4 bis of the Prison Administration Act (ergastolo ostativo) restricted his prospects for release and the possibility of review of his sentence to an excessive degree.”

This is not the first time that the ECHR has dealt with this Italian law. On the application Asciutto v. Italy the ECHR recognized violations of articles 6 § 1 and 8 of the Convention. In Asciutto, the applicant’s complaint “entail[ed] restrictions on outside contacts, such as the requirement to give evidence in court proceedings by video link. He also complained of delays in the examination of his appeals against ministerial decisions and an infringement of his right to respect for his correspondence”. In the case Enea vs. Italy, although the Grand Chamber dismissed the complaint about article 3 of the Convention, it recognized again breaches of articles 6 § 1 and 8. Moreover, in the famous case of Provenzano v. Italy, involving a convicted Cosa Nostra boss who finally died in prison after complaining about inadequate medical care under the 41-bis regime, the Court decided that he was subjected to inhumane treatment. It should be noted that an American Judge also refused to extradite a mafia convict to Italy, ruling that the 41-bis system “is not related to any lawfully imposed sanction or punishment, and thus constitutes torture.”

The ECHR decision against the 41-bis regime has not been met with warm acceptance in Italy. Part of the public opinion and legal professionals argue that it weakens authorities in the fight against mafia and terrorism, both significant threats to the country’s national security. The turmoil of the “anni di piombo” and the killings in 1992 of the heroic Judges Falcone and Borsellino can be considered as pivotal behind the introduction and development of article 41-bis of the Prison Administration Act. Furthermore, it should be noted that this sensitive historical framework was also acknowledged by the ECHR in its decision in Viola, stating “the prison reform which had given rise to the regime in issue had been adopted in 1992, in the context of an emergency following an episode that had marked Italy deeply.”

When it comes to organized crime, Italians have valid reasons to fight it with the most effective measures possible, to disrupt the functioning networks of mafia bosses and their links to segments of the Italian society. The same applies to terrorism, which is not a new security concern for Italy. Both phenomena have haunted Italian history. The Strasbourg judgment is interpreted by some Italians negatively, as interference from foreign judges who do not understand the seriousness of mafia and as opening the door for organized crime bosses—who remain connected to the mafia scene and remorseless for their crimes—to get out of prison and resume their criminal careers. In a period of Euroscepticism, the ECHR decision raises also a matter of Italy’s sovereignty in its domestic affairs and national security policy. Additionally, there are still victims and mourning families because of mafia violence. Vindication scores higher than the convict’s right to reintegration for those who have felt such loss. The arguments of those opposing the ECHR undoubtedly deserve attention and taking them into account before any development in laws, as they echo the tragic experience of crime.

The Italian school of Criminology has been focal in the development of theories about crime, criminals, penalties, and the prison system that have affected the western world. It is also one of the most famous case studies in organized crime and terrorism. On one hand a cradle of criminological theories, on the other hand a real battlefield against the most serious crimes.

The present ECHR decision poses a challenge. Will Italy defy it or will it take a new stance on security, despite the global trend of draconian laws against terrorism and organized crime? The second choice seems to be overlooking all alleged success in the fight against serious crime. However, should Italy choose this road, it is not a predestined lost war. The Italian judiciary and law enforcement are highly trained and capable to cope with difficulties. Now the authorities will have to build an even better, stronger network of intelligence to target mafia and implement effective programs of crime disengagement. Plus, the state will have to adopt measures that will estrange mafia from certain communities that are its oxygen of existence. It was an Italian, Cesare Beccaria, who was courageous enough to speak against torture, degrading, inhuman punishment of prisoners and above all oppose the death penalty that was seen as normal and even absolutely necessary to stop crime and criminals in his time. Thus, from Italy, centuries ago, started the wind of change that shaped all civilized criminal justice systems up to now.  We will see if once again Italy can inspire global criminal justice reforms through an ability to adopt regimes that are hard on crime, but humane enough to reflect current principles of the European Convention on Human Rights towards rehabilitating criminals, even the mafia ones.

Dr. Maria Chr. Alvanou is Criminologist- Defense Lawyer with the right of audience before the Supreme Court of Greece and actively engaged in the field of terrorism studies. 

Suggested citation: Maria Chr. Alvanou, “The ECHR and the 41-Bis Prison Regime in Italy: Weakening the Struggle Against Serious Crime or Strengthening Modern Principles of Prison Law?,” JURIST – Professional Commentary, October 16, 2019, https://www.jurist.org/commentary/maria-chr-alvanou-41-bis

This article was prepared for publication by Michael Barber, a JURIST Senior Editor. Please direct any questions or comments to him at commentary@jurist.org