JUDGMENT NO. 85
YEAR 2024
Commentary on the decision by
Sara Mastrapasqua
for g.c. by Giurisprudenza Penale
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Judges: Franco MODUGNO, Giulio PROSPERETTI, 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
JUDGMENT
in the constitutional legitimacy proceedings of Article 2-quinquies, paragraph 1, of Decree Law No. 28 of April 30, 2020 (Urgent measures for the functionality of systems for the interception of conversations and communications, further urgent measures concerning the penitentiary system, as well as supplementary and coordinating provisions in matters of civil, administrative, and accounting justice, and urgent measures for the introduction of the Covid-19 alert system), converted, with amendments, into Law No. 70 of June 25, 2020, initiated by the Supervisory Magistrate of Padua in proceedings against E. C., by order of August 2, 2023, registered under No. 122 of the 2023 register of orders and published in the Official Gazette of the Republic No. 39, first special series, of the year 2023.
Heard in the council chamber of April 16, 2024, the Reporting Judge, Francesco Viganò;
decided in the council chamber of April 16, 2024.
Facts of the Case
1.– By order of August 2, 2023, the Supervisory Magistrate of Padua raised questions of constitutional legitimacy of Article 2-quinquies, paragraph 1, of Decree Law No. 28 of April 30, 2020 (Urgent measures for the functionality of systems for the interception of conversations and communications, further urgent measures concerning the penitentiary system, as well as supplementary and coordinating provisions in matters of civil, administrative, and accounting justice, and urgent measures for the introduction of the Covid-19 alert system), converted, with amendments, into Law No. 70 of June 25, 2020, «in the part in which it provides that authorization for interviews with minor children cannot be granted more than once a week in the case of inmates for offenses pursuant to Article 4-bis of the Penitentiary Code for whom there is no prohibition on the granting of benefits pursuant to Article 4-bis of Law No. 354 of July 26, 1975».
This provision would violate Articles 3, 31, and 117, paragraph one, of the Constitution, the latter in relation to Article 8 of the European Convention on Human Rights, as well as in relation to Article 3, paragraph 1, of the Convention on the Rights of the Child, and in relation to Article 24, paragraph 2, of the Charter of Fundamental Rights of the European Union.
1.1.– The referring court is required to rule on an appeal presented pursuant to Article 35-bis of Law No. 354 of July 26, 1975 (Provisions on the penitentiary system and on the execution of custodial and restrictive measures) by E. C., an inmate serving a sentence at the Padua House of Detention, against a measure of the prison management which, in application of the contested provision, had denied him permission to make daily telephone calls to his minor son.
The referring court reports:
– that the inmate is serving a thirty-year prison sentence in relation to convictions for six homicides, committed between 1992 and 2000, association for the purpose of committing crimes of the mafia type, extortion, theft, illegal possession of weapons, and receiving stolen goods. All the crimes, with the exception of two homicides not attributable to his participation in the mafia association, were allegedly committed by him «in his capacity as a member of the camorra clan "La Torre” and are aggravated pursuant to Article 7 of Law 203/91»;
– that his end-of-sentence date is currently set for July 26, 2028;
– that for all the homicides attributable to the mafia association and the crimes aggravated by the mafia method, the Supervisory Court of Venice has ascertained, by order of May 24, 2017, the impossibility of his cooperation, and consequently the ineffectiveness of the preclusions normally associated with the conviction for the crimes referred to in Article 4-bis, paragraph 1, of the Penitentiary Code;
– that since 2020 the inmate has been admitted to the benefit of leave permits, a circumstance that has allowed him to cultivate the affectionate bond with his nine-year-old son, conceived during detention through assisted fertilization; these leave permits would have been granted «in light of intramural observation reports that portrayed not only regular conduct free from disciplinary findings and participation in the treatment activities available in the High Security circuit […] but also an important critical re-evaluation of the serious crimes» committed by him;
– that the External Penal Execution Office (UEPE) of Caserta has highlighted that the desire for parenthood first and then the birth of the child would have had a positive impact on the inmate's life, and that «[E. C.’s] planning is oriented around the family unit and the desire to be able, in the future, to move away from the multi-problematic context of origin»;
– that the District Anti-Mafia Directorate of Naples – while having stressed the continued operation of the mafia association of which the inmate was a part, as well as his kinship with one of the subjects who managed it in the years 2004-2006 – has highlighted that for about twenty years the claimant, «given his detention, does not appear to have been involved in other investigative activities, so there are no significant elements from which to infer (or exclude) the existence of links with organized crime»;
– that the Caserta Police Headquarters has also confirmed the absence of elements indicative of a current connection with organized crime;
– that, as confirmed by the prison management, the inmate «on the occasion of the pandemic and until 31.12.2022, had enjoyed telephone correspondence with the minor once a day, according to emergency regulations»;
– that the inmate currently benefits from six video calls per month («to be understood as equivalent to visual interviews») with his family, as provided for inmates considered "non-impeding,” as well as two telephone interviews per week with his son («one per week under the ordinary rules provided for inmates for non-impeding crimes and one additional per week as provided for inmates convicted of impeding crimes»).
Given the foregoing, the referring judge believes that the challenged measure is in accordance with the contested provision, which – in addition to the ordinary weekly telephone correspondence with family members and cohabitants provided for by Article 39, paragraph 2, of Presidential Decree No. 230 of June 30, 2000 (Regulation containing rules on the penitentiary system and on custodial and restrictive measures) (hereinafter: penitentiary reg.) – allows, among other things, to authorize the inmate to a daily telephone conversation with his minor children, unless they are – as in this case – inmates or internees for a crime referred to in Article 4-bis, paragraph 1, first sentence, of the Penitentiary Code: in which case, such additional authorization cannot be granted more than once a week.
1.2.– The referring court, however, doubts the constitutional legitimacy of the provision under consideration.
1.2.1.– It would conflict, first of all, with Article 3 of the Constitution.
While starting from the premise of the reasonableness of differentiating the rules for telephone correspondence based on the greater dangerousness of the convicted, the referring court observes that the latter «must be anchored to reasonable and objectively verifiable criteria, consistent with the principles of the penitentiary system».
The regulations dictated by the penitentiary reg., which differentiate between "ordinary” inmates and inmates «for one of the crimes provided for in the first sentence of the first paragraph of Article 4-bis» of the Penitentiary Code both with reference to telephone correspondence (Article 39, paragraph 2), and with reference to video calls and interviews (Article 37, paragraph 8), would actually find its basis in the presumption of dangerousness of "impeding” inmates: a presumption that, however, is overcome by the recognition of their cooperation with the justice system, or by the recognition of the other alternative conditions provided for by law, which in any case provide for a «evaluation regarding the absence of connections with organized crime and the absence of the danger of connections».
The same could not be said of the restrictive regime introduced by the contested provision, which would refer to the generality of «inmates or internees for one of the crimes provided for in the first sentence of paragraph 1 of Article 4-bis» of the Penitentiary Code, «without distinguishing whether the person has cooperated or not or has been admitted to the benefits abroad».
Emblematic of this unreasonableness would be the case of the claimant in the proceedings a quo, who would have «benefited for several days, and also in the territory of origin, from leave permits; a benefit granted after assessment of the absence of a danger of restoring links with organized crime, as well as a negative prognosis regarding the profile of dangerousness (and therefore the danger of repeating crimes), to cultivate the relationship with his minor son».
The unreasonableness of the rules, with respect to the claimant, would be made even more evident by the fact that he himself «benefits – in the matter of interviews – from the "non-impeding” rules in relation to the general rules provided for by Article 39, paragraph 2, and 37, paragraph 9, of Presidential Decree 230/00 while (and only) limited to the hypotheses of broadening telephone calls with minor children provided for by Article 2 quinquies of Law No. 70 of 2020 [recte: Decree Law No. 28 of 2020] falls under the "impeding” rules».
Article 3 of the Constitution would therefore be violated «under the profiles of reasonableness as well as equality with respect to inmates for non-impeding crimes (who could even not be admitted to penitentiary benefits due to profiles of social dangerousness)».
1.2.2.– The contested provision would also violate Article 31 of the Constitution.
Interviews with family members and in particular with children – observes the referring court – «represent a cornerstone of penitentiary treatment». The protection of the parental bond could not be considered exhausted after the establishment of the parent's detention experience (judgment No. 18 of 2020 of this Court is cited), «given that in these cases the development of the minor's personality is in conditions of potential fragility and requires enhanced protection that allows not to renounce the expectations of a harmonious development of the child and adolescent».
The prohibition on having daily telephone calls with minor children for impeding convicts who can access penitentiary benefits would then constitute an unjustified obstacle to the maintenance of the parental bond and to the full development of the child's personality, «an innocent subject in need of scrupulous attention also in the criminal cases involving their parents».
1.2.3.– Finally, the contested provision would then conflict with Article 117, first paragraph, of the Constitution, first of all in relation to Article 8 ECHR, within the scope of which interviews with minor children would fall (European Court of Human Rights, second section, judgment of March 21, 2023, Deltuva v. Lithuania is cited).
The referring court then observes that «[t]he paramount interest of the minor […] implies that all decisions of public authorities or private institutions that even indirectly involve the legal sphere of minors must acknowledge and conform to this social and legal awareness». This statement would be shared by multiple regulatory sources, including the Convention on the Rights of the Child and Article 24, paragraph 2, of the CFREU.
Reasons for the Decision
1.– By the order indicated in the heading, the Supervisory Magistrate of Padua raised questions of constitutional legitimacy of Article 2-quinquies, paragraph 1, of Decree Law No. 28 of 2020, as converted, «in the part in which it provides that authorization for interviews with minor children cannot be granted more than once a week in the case of inmates for offenses pursuant to Article 4-bis of the Penitentiary Code for whom there is no prohibition on the granting of benefits pursuant to Article 4-bis of Law No. 354 of July 26, 1975».
The referring court's objections focus, therefore, only on the third sentence of Article 2-quinquies, paragraph 1, of Decree Law No. 28 of 2020, as converted. In his opinion, this provision would violate Articles 3, 31, and 117, first paragraph, of the Constitution, the latter in relation to Article 8 ECHR, as well as Article 3, paragraph 1, of the Convention on the Rights of the Child and Article 24, paragraph 2, of the CFREU.
The referring court is required to rule on an appeal presented by an inmate, convicted of a series of crimes falling within the scope indicated by Article 4-bis, paragraph 1, first sentence, of the Penitentiary Code, but to whom the prohibition of benefits provided therein does not apply, as he has been recognized as unable to cooperate with the justice system pursuant to paragraph 1-bis of the same Article 4-bis, in the text prior to the amendments made by Decree Law No. 162 of October 31, 2022 (Urgent measures regarding the prohibition on the granting of penitentiary benefits to inmates or internees who do not cooperate with justice, as well as regarding the terms of application of the provisions of Legislative Decree No. 150 of October 10, 2022, and provisions relating to disputes in sports justice, as well as obligations for anti-SARS-CoV-2 vaccination, for the implementation of the National Plan against an influenza pandemic and for the prevention and counteraction of illegal gatherings), converted, with amendments, into Law No. 199 of December 30, 2022.
The appeal concerns a measure of the prison management by which the inmate's request to be able to continue to have daily telephone conversations with his nine-year-old son was rejected, under the regime that he had already benefited from previously by virtue of various provisions adopted during the COVID-19 pandemic emergency.
The referring judge notes that the challenged measure is effectively in accordance with the contested provision, which, in particular with regard to telephone correspondence with minor children, provides for a more restrictive regime than the ordinary one for «inmates or internees for one of the crimes provided for in the first sentence of paragraph 1 of Article 4-bis» of the Penitentiary Code, without distinguishing whether the prohibition of benefits provided for therein applies to them or not; but doubts the constitutional legitimacy of this provision, with reference to the aforementioned parameters.
2.– The question formulated with reference to Article 117, first paragraph, of the Constitution, in relation to Article 24 of the CFREU, is inadmissible.
The referring court has not, in fact, illustrated the reasons why the contested provision would fall within the scope of application of European Union law; which in turn conditions, pursuant to Article 51 of the CFREU, the very applicability of the provisions of the Charter, including their suitability to constitute intermediate parameters in the judgment of constitutional legitimacy before this Court (ex multis, judgment No. 183 of 2023, point 7 of the Reasons for the Decision).
This does not, however, prevent – according to the established case law of this Court – that the rules of the Charter can be used, even outside the scope of application of Union law, as interpretative criteria of the same pertinent constitutional parameters (ex multis, judgments 219 of 2023, point 4.1. of the Reasons for the Decision; No. 33 of 2021, point 4 of the Reasons for the Decision).
3.– The question formulated with reference to Article 3 of the Constitution is well-founded.
3.1.– The referring judge doubts, in essence, the compatibility of the contested provision with Article 3 of the Constitution under a dual profile: in the first place, for the intrinsic unreasonableness of the provision itself; in the second place, for the unreasonable disparity of treatment created by it between the regime relating to telephone correspondence in force for inmates or internees for crimes referred to in Article 4-bis, paragraph 1, first sentence, of the Penitentiary Code, to whom, however, the prohibition of benefits provided therein does not apply, on the one hand, and the regime that the same provision provides in favor of inmates and internees for the generality of other crimes, on the other hand.
It appears to this Court appropriate to examine first this latter objection, with which – ultimately – the mere lack of internal consistency of the system between the choices discretionarily made by the legislator is already contested: a defect that this Court has always considered expressive of a violation of Article 3 of the Constitution, the minimum content of which is constituted by the imperative of equal treatment of similar cases (ex multis, most recently, judgment No. 46 of 2024, point 3.3. of the Reasons for the Decision).
3.2.– Under this profile, the referring court does not complain, in general, about the existence of differentiated penitentiary rules – also in the matter of telephone correspondence with family members – to the detriment of inmates and internees for the crimes listed in Article 4-bis, paragraph 1, first sentence, of the Penitentiary Code. Rather, he complains that the contested provision subjects the entire set of these inmates and internees to the same and more onerous rules regarding telephone correspondence, without distinguishing between those who do not have access to the benefits, and those who can instead benefit from them. The rules applicable to the latter should instead, in his perspective, be equated to those of "ordinary” inmates and internees.
3.3.– The examination of this objection requires a brief excursus on the overall rules emerging from Article 4-bis, paragraph 1, of the Penitentiary Code (infra, point 3.3.1.) and its ratio (infra, point 3.3.2.).
3.3.1.– As is widely known, Article 4-bis, paragraph 1, of the Penitentiary Code provides for a differentiated penitentiary regime for inmates and internees for a large number of serious crimes, mostly committed in contexts of organized crime.
This regime is essentially based on the preclusion of access to many of the ordinary benefits provided for by the law on the penitentiary system in the absence of cooperation with the justice system.
Already from Article 4-bis, paragraph 1, of the Penitentiary Code, a first, crucial distinction "internal” to the group of inmates and internees for the crimes listed therein emerges: the preclusions apply only to those who do not cooperate with the justice system; the "cooperating” ones, on the other hand, have access to all the benefits provided for by the penitentiary system, under conditions – indeed – more favorable than those in force for the generality of other inmates, pursuant to Article 58-ter, paragraph 1, of the Penitentiary Code.
Even in the absence of cooperation with the justice system, however, further categories of inmates and internees for crimes referred to in Article 4-bis, paragraph 1, of the Penitentiary Code are not subject to the preclusions established therein.
To begin with, paragraph 1-bis of Article 4-bis of the Penitentiary Code, in the version in force before the amendments introduced by Legislative Decree No. 162 of 2022, as converted, provided among other things that the benefits referred to in paragraph 1 could be granted to such inmates, even if "non-cooperating”, «provided that elements have been acquired such as to exclude the current links with organized, terrorist or subversive crime, also in cases where limited participation in the crime, ascertained in the judgment of conviction» (cooperation "not required”), «or the full ascertainment of the facts and responsibilities, carried out with an irrevocable judgment, [would] in any case make a useful cooperation with the justice system impossible» (cooperation "impossible”), or even in cases where the cooperation offered by the convicted person proves to be «objectively irrelevant», provided that, in this event, one of the mitigating circumstances referred to in Articles 62, number 6), 114 or 116, second paragraph, of the criminal code had been applied to the convicted person (cooperation "irrelevant”). These derogations from the general preclusion of access to benefits continue to apply today to convicts and internees who committed the crimes referred to in Article 4-bis, paragraph 1, of the Penitentiary Code before the date of entry into force of Decree Law No. 162 of 2022, as converted, by virtue of Article 3, paragraph 2, of the same decree-law, which has essentially reproduced its content; and one of these derogations, for that matter, continues to benefit the claimant in the proceedings a quo, who had in due course been recognized as having an impossibility of cooperating with the justice system.
In these cases, therefore, the inmate or internee has access to the benefits according to the general rules, like any other "ordinary” inmate or internee, without prejudice to the need for the timely acquisition of «elements such as to exclude the current links with organized, terrorist or subversive crime» as a condition for access to individual benefits.
Finally, Decree Law No. 162 of 2022, as converted, – reformulating paragraph 1-bis of Article 4-bis of the Penitentiary Code in line with that indicated by this Court with judgment No. 253 of 2019 and then with order No. 97 of 2021– has provided in general (and therefore, regardless of whether the hypotheses referred to in the previous paragraph 1-bis occur) that convicts and internees for the crimes referred to in paragraph 1, even in the absence of cooperation with the justice system, can in any case access the benefits indicated therein, in the presence of a structured series of conditions, among which in particular the submission of «specific elements» that «allow to exclude the current links with organized, terrorist or subversive crime and with the context in which the crime was committed, as well as the danger of restoring such links, even indirectly 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».
Also in these latter cases, therefore, the preclusions referred to in paragraph 1 do not apply to the inmate or internee.
In summary, the preclusive – or "impeding,” in the now consolidated language of practice – mechanism established by Article 4-bis, paragraph 1, of the Penitentiary Code does not operate with respect to three specific subsets of inmates and internees for the crimes listed therein:
– those who cooperate with the justice system, for whom there is even a more favorable regime than the ordinary one;
– those who committed the crime before the entry into force of Decree Law No. 162 of 2022, as converted, who do not, in fact, cooperate with the justice system, but with regard to whom cooperation has been recognized as "impossible,” "not required,” or "irrelevant” under the conditions now indicated by Article 3, paragraph 2, of the same decree-law, the ordinary regime of access to benefits being applicable to them;
– those who do not cooperate with the justice system, but with respect to whom the conditions indicated by paragraph 1-bis of Article 4-bis of the Penitentiary Code, in the text now in force, are met, and to whom the ordinary regime of access to benefits also applies.
3.3.2.– The overall ratio of this regulation, which now constitutes a true and proper subsystem applicable to the penitentiary treatment of inmates and internees for the crimes listed in paragraph 1 of Article 4-bis of the Penitentiary Code, has been the subject of in-depth analysis by this Court in judgment No. 253 of 2019.
In that ruling it was emphasized that the preclusive mechanism established by Article 4-bis, paragraph 1, of the Penitentiary Code rests on the presumption that, even after entering prison, «the links with the criminal organization are maintained and current, from which the permanent dangerousness of the convicted person is derived, with consequent inaccessibility to the penitentiary benefits normally available to other inmates» (point 7.1. of the Reasons for the Decision). From this point of view, procedural cooperation constitutes a sort of legal proof of the breaking of the associative bond with respect to the individual inmate, which in turn signals the beginning of his re-educational path, opening the way to the subsequent granting of various penitentiary benefits.
Moreover, already from a time well before judgment No. 253 of 2019, the legislator himself had excluded that the presumption in question – and the consequent preclusive mechanism – should operate in cases where the convicted person had no possibility of offering effective cooperation in the investigations. This happened in the cases provided for by the aforementioned paragraph 1-bis of Article 4-bis of the Penitentiary Code, in the formulation prior to Decree Law No. 162 of 2022, as converted.
In judgment No. 253 of 2019 and then in order No. 97 of 2021, this Court then highlighted the constitutional untenability of an absolute presumption of the continued maintenance of associative ties – and therefore of the continued dangerousness – of the convicted person for crimes linked to an associative context. «It is not at all unreasonable» – it was written in order No. 97 of 2021, with wording calibrated on the convicts sentenced to life imprisonment who were then under consideration, but generalizable to all convicts for crimes referred to in Article 4-bis, paragraph 1, of the Penitentiary Code – «to presume that he maintains live ties with the criminal organization of original membership». However, a tension with constitutional principles «is evident where it is established that cooperation is the only way available to a person sentenced to life imprisonment to access the assessment on which his return to freedom decisively depends. Also in this case, in short, it is necessary that the presumption in question become relative and can be overcome by contrary proof, assessable by the supervisory court» (point 7 of the Reasons for the Decision).
The new discipline of paragraph 1-bis mentioned above intends, for that matter, to dictate a mechanism of merely relative presumption of maintenance of the inmate's or internee's links with the organization of membership, which can be overcome under the conditions indicated therein.
3.4.– From the previous reconstruction it emerges that, whenever the legislator deems the presumption of the continued existence of the bond between the convicted person for a crime referred to in Article 4-bis, paragraph 1, of the Penitentiary Code and the criminal association, and therefore of the continued dangerousness of the convicted person himself, to be overcome – as a result of procedural cooperation, or on the basis of the specific factual assessments referred to above –, the reasons for a derogative penitentiary regulation that is unfavorable with respect to the one valid for the generality of other convicts cease to exist at the same time.
This cannot but also be valid beyond the horizon of the benefits specifically referred to in Article 4-bis, paragraph 1, of the Penitentiary Code.
A derogative discipline in peius for this subset of inmates and internees could not in fact be justified, on a constitutional level, on the basis of purely afflictive reasons, in response to the particular seriousness of the crimes listed in paragraph 1 of Article 4-bis of the Penitentiary Code. This Court has already repeatedly excluded (judgment No. 97 of 2020, point 6 of the Reasons for the Decision; judgment No. 351 of 1996, point 5 of the Reasons for the Decision) that a similar purpose may legitimize the severe restrictions connected to the special detention regime referred to in Article 41-bis, paragraph 2, of the Penitentiary Code, tailored to the need to contain the special social dangerousness of certain inmates and internees for the crimes referred to in Article 4-bis, paragraph 1, of the Penitentiary Code with respect to whom there are, in concrete terms, elements such as to consider the current links with the criminal associations of membership. And this conclusion