JUDGMENT No. 187
YEAR 2024
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE CONSTITUTIONAL COURT
composed of:
President: Augusto Antonio BARBERA
Judges: 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 rendered the following
JUDGMENT
in the proceedings concerning the constitutional legitimacy of Article 35-ter, paragraph 2, of Law No. 354 of 26 July 1975 (Regulations on the Penitentiary System and on the Enforcement of Measures Depriving and Restricting Liberty), referred by the Ordinary Court of Salerno, First Civil Section, in the proceedings between V. P. and the Ministry of Justice, with order of 2 February 2024, registered under No. 33 of the 2024 order register and published in the Official Gazette of the Republic No. 12, Special Series No. 1, of the year 2024.
Having considered the intervention of the President of the Council of Ministers;
having heard, at the Chamber of Counsel of 15 October 2024, Judge Giulio Prosperetti, Rapporteur;
having deliberated at the Chamber of Counsel of 15 October 2024.
Facts
1. - By order of 2 February 2024 (Reg. Ord. No. 33 of 2024), the Ordinary Court of Salerno, First Civil Section, raised a question of constitutional legitimacy concerning Article 35-ter, paragraph 2, of Law No. 354 of 26 July 1975 (Regulations on the Penitentiary System and on the Enforcement of Measures Depriving and Restricting Liberty), insofar as it provides that "the supervising magistrate shall also pay the applicant, in relation to the remaining period and as compensation for damages, a sum of money equal to €8.00 for each day on which the applicant suffered prejudice."
2. - The unconstitutionality is alleged in reference to Article 117, first paragraph, of the Constitution, in relation to Article 3 of the European Convention on Human Rights, since the quantification of compensation for inhumane detention is fixed at an excessively low amount, considering that it concerns personal injury and an established violation of human rights protected by the ECHR.
3. - In support of its arguments, the referring court cites the concurring opinion of the Superior Council of the Judiciary issued on 30 July 2014, which highlighted that the amount in question, rigidly quantified at €8 per day, is much lower than the first point of invalidity provided for damage from micro-permanent injury, updated to 5 July 2014 at €795.91.
Furthermore, it states that this amount is much lower than the conversion rate of pecuniary penalties into custodial sentences pursuant to Article 102 of Law No. 689 of 24 November 1981 (Amendments to the Penal System), which is €250.00, and to the compensation awarded by the European Court of Human Rights in the "Torreggiani case" (ECHR, Second Section, Judgment of 8 January 2013, Torreggiani and others v. Italy), determined at a value exceeding €20 per day.
Therefore, it concludes that the challenged normative provision is unreasonable.
4. - The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Legal Office, which preliminarily raised the objection of inadmissibility due to the failure to describe the specific case and the consequent impossibility of assessing its relevance and non-manifest unfoundedness.
The State Legal Office premised that the challenged provision was introduced in order to comply with the provisions of the ECHR judgment in the case "Torreggiani and others v. Italy," in which it was established that the Italian State should provide a set of remedies capable of offering adequate redress for the prejudice deriving from prison overcrowding.
The intervener explained that, to this end, two distinct remedies were provided for: redress in specific form, through a reduction of the custodial sentence still to be served, and redress in equivalent form, through the payment of a sum of money.
In this regard, it referred to the case law of the Court of Cassation, which classified the remedy provided for by the challenged provision as compensatory and, precisely in relation to the comparison between the value of compensation for unjust detention and that provided for the conversion between pecuniary and custodial sentences, clarified that the legislature, in order to contain costs, simplify the calculation mechanism and reduce the applicable variables, chose "the path of compensation, i.e., of a compensation of limited amount and of mechanical and uniform quantification" (Court of Cassation, Joint Civil Sections, Judgment of 8 May 2018, No. 11018) in a logic of lump-sum payment that does not take into account the different degrees of intensity that the violation of Article 3 ECHR may assume.
Finally, it emphasized that this remedy was considered not unreasonable and not ineffective by the ECHR itself, Second Section, in the judgment of 16 September 2014, Stella v. Italy, and that the proceedings against Italy concerning the "Torreggiani case," which originated the challenged provision, are now concluded; consequently, the State Legal Office requested that the question raised be declared unfounded.
Points of Law
1. - The Court of Salerno, First Civil Section, raised a question of constitutional legitimacy of Article 35-ter, paragraph 2, of Law No. 354 of 1975, insofar as it rigidly determines, at €8 per day, the compensation for damages due to the detainee who has suffered inhumane prison treatment, in contrast with Article 117, first paragraph, of the Constitution, in relation to Article 3 ECHR.
2. - Article 3 ECHR establishes that no one shall be subjected to torture or to inhuman or degrading treatment, and its respect has been questioned, for Italy, in relation to the issue of prison overcrowding, repeatedly brought to the attention of the ECHR until, in 2013, with the Torreggiani judgment, precise indications were given for interventions capable of remedying the ascertained violation.
In particular, this judgment established that Italy should adopt organizational measures of the penitentiary system adequate to respect the dignity of detainees and, as measures capable of immediately ceasing violations of Article 3 ECHR, the following were indicated: greater application of non-custodial punitive measures and a reduction in the use of pre-trial detention, as well as the identification of preventive and compensatory remedies, which must coexist in a complementary manner and which must determine, on the one hand, the rapid cessation of the violation of the right not to undergo inhuman or degrading treatment, and, on the other hand, the redress of the said violation.
Following this ruling, Legislative Decree No. 92 of 26 June 2014 (Urgent provisions concerning compensatory remedies in favour of detainees and internees who have undergone treatment in violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as amendments to the Code of Criminal Procedure and implementing provisions, to the organization of the Penitentiary Police Corps and to the penitentiary system, including juvenile), converted, with amendments, into Law No. 117 of 11 August 2014, which introduced the provision now challenged, providing – as a compensatory remedy for violations of Article 3 ECHR – a sentence reduction of one day for every ten days already served and – as a remedial remedy – compensation for damages in the amount of €8 for each day of inhumane detention.
Following the adoption of Legislative Decree No. 92 of 2014, as converted, the ECHR again ruled on the situation of detainees in Italy and in the "Stella case" of 2014, it took note of the introduction of the sentence reduction mechanism, which was defined as "a satisfactory reparation for violations of the Convention in criminal matters," and recognized the importance of having provided for a recourse to compensation to remedy a violation of the ECHR (ECHR, Judgment of 16 September 2014, Stella v. Italy).
3. - Having said that, in this case, the question is inadmissible.
4. - For a proper analysis of the facts, the Court's scrutiny requires a more thorough examination by the referring judge.
In fact, the referring judge, in denouncing the conflict of the challenged provision with the Constitution, omits any reference to the facts submitted for its examination.
It merely states that it has read the documents and seen the acquired documentation, but adds nothing else about the specific facts of the case, not giving account of the applicability of the provision in the main proceedings.
Lacking even a minimal description of the facts and therefore not being possible to assess the relevance, the question must be declared inadmissible (ex multis, Judgment No. 190 of 2023).
for these reasons
THE CONSTITUTIONAL COURT
declares inadmissible the question of constitutional legitimacy of Article 35-ter, paragraph 2, of Law No. 354 of 26 July 1975 (Regulations on the Penitentiary System and on the Enforcement of Measures Depriving and Restricting Liberty), raised, in reference to Article 117, first paragraph, of the Constitution, in relation to Article 3 of the European Convention on Human Rights, by the Ordinary Court of Salerno, First Civil Section, with the order indicated in the heading.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 15 October 2024.
Signed:
Augusto Antonio BARBERA, President
Giulio PROSPERETTI, Rapporteur
Roberto MILANA, Director of the Registry
Filed with the Registry on 28 November 2024
The Director of the Registry