ORDER NO. 18
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA;
Justices: Franco MODUGNO, Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,
has issued the following
ORDER
in the proceedings concerning the constitutional legitimacy of Article 4-bis, paragraphs 1 and 1-bis, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of custodial and restrictive measures of liberty), initiated by the Surveillance Tribunal of Florence on the petition filed by A. P., with order of 21 September 2022, registered under No. 46 of the 2023 register of orders and published in the Official Gazette of the Republic No. 16, first special series, of the year 2023, the hearing of which was set for the session in the Council Chamber of 23 January 2024.
Heard in the Council Chamber of 24 January 2024 the Reporting Judge Stefano Petitti;
Resolved in the Council Chamber of 24 January 2024.
Whereas, by order of 21 September 2022, registered under No. 46 of the 2023 register of orders, the Surveillance Tribunal of Florence raised, in relation to Articles 3, 4 and 27, third paragraph, of the Constitution, questions of constitutional legitimacy of Article 4-bis, paragraphs 1 and 1-bis, of Law No. 354 of 26 July 1975 (Rules on the penitentiary system and the enforcement of custodial and restrictive measures of liberty), insofar as it does not provide that detainees convicted of the crimes contemplated therein may be granted semi-liberty, in the event referred to in Article 50, paragraph 2, of the Penitentiary Code, even in the absence of cooperation with the justice system pursuant to the subsequent Article 58-ter of the Penitentiary Code, where elements have been acquired such as to exclude both current connections with organized, terrorist or subversive crime, and the danger of their re-establishment, and the treatment program is sufficiently advanced;
that the referring court states that, in the main proceedings, A. P. is detained by virtue of a sentence to twenty-one years of imprisonment, one year of which was extinguished by pardon, as he was found responsible, among other things, for the crime referred to in Article 74, paragraph 1, of Presidential Decree No. 309 of 9 October 1990, containing the "Consolidated Law on the discipline of narcotics and psychotropic substances, prevention, treatment and rehabilitation of related states of drug addiction”, included among the so-called preclusive offences for the granting of penitentiary benefits, subject to proof of cooperation with the justice system ex Article 58-ter of the Penitentiary Code, or the recurrence of the equivalent cases of impossible, unfulfillable or objectively irrelevant cooperation;
that the referral order reports that A. P. has not cooperated with the justice system, nor has he requested the ascertainment of the impossibility or unenforceability of such cooperation, and yet the same, continuously detained for over fifteen years, has committed to the recovery path, studying and working in prison, so that he has begun to regularly enjoy leave permits, following the judgment of this Court No. 253 of 2019, and has shown a favourable progress in treatment;
that the judge a quo specifies that the detainee has therefore submitted an application for the application of semi-liberty, attaching to support it the possibility of carrying out work activities at a consortium;
that the Surveillance Tribunal of Florence, after a detailed reconstruction of the positive evolution of the personality of the convicted person, also in light of the information acquired, highlights that the conditions for admission to the semi-liberty regime would exist, impeded, however, by the conviction for a preclusive offense, with consequent relevance of the raised questions of constitutional legitimacy of Article 4-bis, paragraphs 1 and 1-bis, of Law No. 354 of 1975;
that, on the point of non-manifest groundlessness of the questions, the Surveillance Tribunal of Florence recalls the principles of judgment of this Court No. 253 of 2019, and finds a conflict with Articles 3 and 27, third paragraph, of the Constitution of the absolute presumption of dangerousness that lurks in the lack of cooperation, according to the challenged rules, giving rise to non-individualized penitentiary treatment, such as, in particular, to preclude admission to semi-liberty, and therefore to hinder the progressive social reintegration, through the performance of work activity, also of the detainee who positively benefits from leave permits;
that the preclusion of the performance of work activity in an external environment, outside the walls of the prison, is also used by the referring court as the basis for the reference to Article 4 of the Constitution.
Considering that the Surveillance Tribunal of Florence (reg. ord. No. 46 of 2023) doubts, with reference to Articles 3, 4 and 27, third paragraph, of the Constitution, the constitutional legitimacy of Article 4-bis, paragraphs 1 and 1-bis, of Law No. 354 of 1975, insofar as it does not provide that detainees convicted of the crimes contemplated therein may be granted semi-liberty, in the event referred to in Article 50, paragraph 2, of the Penitentiary Code, even in the absence of cooperation with the justice system pursuant to the subsequent Article 58-ter of the Penitentiary Code, where elements have been acquired such as to exclude both current connections with organized, terrorist or subversive crime, and the danger of their re-establishment, and the treatment program is sufficiently advanced;
that, pending the proceedings concerning constitutional legitimacy, Decree-Law No. 162 of 31 October 2022 (Urgent measures regarding the prohibition of granting penitentiary benefits to detainees or inmates who do not cooperate with the justice system, as well as regarding the terms of application of the provisions of Legislative Decree No. 150 of 10 October 2022, and provisions relating to disputes of sports justice, as well as obligations for anti-SARS-CoV-2 vaccination, implementation of the National Plan against an influenza pandemic and prevention and combating of illegal gatherings), converted, with amendments, into Law No. 199 of 30 December 2022, intervened;
that Decree-Law No. 162 of 2022, as converted, provided in Article 1, paragraph 1, letter a), number 2), for the full replacement of paragraph 1-bis of Article 4-bis of the Penitentiary Code, and the addition of three new paragraphs (1-bis.1, 1-bis.1.1 and 1-bis.2);
that this Court has already affirmed that the new discipline transforms the presumption of dangerousness, which is preclusive to the granting of benefits and alternative measures in favour of non-cooperating detainees, from absolute to relative, who are now admitted to the possibility of applying for them, although in the presence of stringent and concomitant conditions, differentiated according to the crimes that come into play (orders No. 31 and No. 30 of 2023 and No. 227 of 2022);
that, as for detainees and inmates for crimes of a mafia context and, in general, of an associative type, the benefits may be granted to them provided that they demonstrate the fulfilment of the civil obligations and the obligations of pecuniary reparation resulting from the conviction or "the absolute impossibility of such fulfilment”, as well as attach specific elements – different and further than the regular prison conduct, the participation of the detainee in the re-educational path and the mere declaration of dissociation from the criminal organization of possible affiliation – that allow to exclude the current connections with organized, terrorist or subversive crime and with the context in which the crime was committed, as well as the danger of re-establishment of such connections, even indirect or through third parties, taking into account the personal and environmental circumstances, the reasons possibly put forward in support of the lack of cooperation, the critical review of the criminal conduct and any other available information, as well as, again, the existence of initiatives of the interested party in favour of the victims, both in the forms of compensation and in those of restorative justice;
that detainees for the remaining crimes indicated by paragraph 1 of Article 4-bis of the Penitentiary Code are required to comply with the same conditions, however, purified of indications that are not consistent with the nature of the crimes that come into play, so that the requested attachment must have as its object elements suitable for excluding the current connections, even indirect or through third parties, with the context in which the crime was committed (not also the danger of re-establishment of connections with such context);
that Article 1, paragraph 1, letter a), number 3), of Decree-Law No. 162 of 2022, as converted, provides for the expansion of the sources of knowledge available to the surveillance judiciary and the modification of the relevant procedure, as well as the burden on the detainee to provide suitable evidence to the contrary in the event of indications, emerging from the investigation, of the current existence of connections with organized, terrorist or subversive crime or with the context in which the crime was committed, or of the danger of their re-establishment;
that Decree-Law No. 162 of 2022, as converted, has therefore given rise to a comprehensive modification of the discipline concerned, a modification that immediately affects the essential core of the questions of constitutional legitimacy raised;
that it is therefore necessary to return the documents to the judge a quo, it being up to the latter both to verify the influence of the supervening legislation on the relevance of the same questions, and to proceed to a reassessment of their non-manifest groundlessness (among the many, orders No. 199, No. 72, No. 31 and No. 30 of 2023, No. 231, No. 227 and No. 97 of 2022).
Seen Articles 26, second paragraph, of Law No. 87 of 11 March 1953, and 11, paragraph 1, of the Supplementary Rules for proceedings before the Constitutional Court.
For These Reasons
THE CONSTITUTIONAL COURT
orders the return of the documents to the Surveillance Tribunal of Florence.
Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 24 January 2024.
Signed:
Augusto Antonio BARBERA, President
Stefano PETITTI, Drafter
Roberto MILANA, Director of the Registry
Filed in the Registry on 15 February 2024