23 Dec obstructive crimes

Article 4-bis was introduced into the penitentiary system (law n. 354 of the 1975) from the legislative decree n. 152 of the 1991, and immediately modified – after the Capaci and Via D'Amelio massacres – from the legislative decree n. 306 of the 1992. The provision has undergone recurring changes over time, and has been the subject of numerous rulings of constitutional illegitimacy. The peculiar rationale of this discipline is to differentiate the penitentiary treatment of those convicted of organized crime crimes or other serious crimes, from the treatment of "ordinary" convicts, making access to the reward and alternative measures provided by the penitentiary system subject to certain conditions.

In particular, the subparagraph 1 dell’art. 4 bis OP lists a series of crimes indicated as impediments: the expiation of a sentence relating to such crimes, indeed, does not allow the granting of the assignment measures to I work outside, of permits and of alternative measures to detention provided for by chapter VI OP, excluding early release.

This legal condition can only be overcome in the presence of effective collaboration with justice pursuant to art. 58-ter OP. L’art. 58-ter OP, indeed, in defining the behavior of collaborators, combines two different types of conduct under the same notion of "collaboration with justice".: have taken steps to prevent the criminal activity from leading to further consequences; having concretely helped the judicial authority in collecting decisive elements for the reconstruction of the facts and for the identification or capture of the perpetrators of crime, can be classified as procedural collaboration.

It deals with, as specified by the Constitutional Court of a «special provision, of a restrictive nature, regarding the granting of penitentiary benefits to certain categories of prisoners or internees, who are presumed to be socially dangerous solely on the basis of the crime for which detention or internment was ordered".

I c.d. impeding crimes, listed by article 4-bis, comma 1, are the following: crimes committed for terrorist purposes, also international, or of subversion of the democratic order through the commission of acts of violence; mafia-type association pursuant to art. 416-to e 416-ter c.p. and crimes committed making use of the conditions provided for by the same article or for the purpose of facilitating the activity of such associations; reduction or maintenance in slavery or servitude (art. 600, c.p.); induction or exploitation of child prostitution (art. 600-to, comma 1, c.p.); production and trade of child pornographic material (art. 600-Tue, paragraphs 1 e 2, c.p.); These are people (art. 601, c.p.); purchase and sale of slaves (art. 602 c.p.); gang sexual violence (art. 609-gs, c.p.); kidnapping for the purpose of extortion (art. 630 c.p.); crimes relating to illegal immigration (art. 12 t.u. immigration); criminal association aimed at smuggling foreign manufactured tobacco (art. 291-quater, T.U. customs); association aimed at illicit trafficking of narcotic or psychotropic substances (art. 74, T.U. drugs).

Lastly, as a result of law no. 3 of the 2019 (c.d. Spazzacorrotti law), Some crimes against the public administration have been added to the catalog of impeding crimes: embezzlement (art. 314 c.p.); concussion (art. 317 c.p.); corruption for the exercise of the function (art. 318 c.p.); corruption for an act contrary to official duties (art. 319 c.p.); corruption in judicial documents (art. 319-ter c.p.); undue inducement to give or promise benefits (art. 319-quater c.p.); corruption of a person in charge of a public service (art. 320 c.p.); incitement to corruption (art. 322 c.p.).

For the crimes listed above, in case of absence of collaboration with justice, the absolute presumption of immanence of the connections applies: the absence of useful collaboration suggests the relevance of the connections and, Consequently, the immanence of social danger, without the supervisory judiciary being able to evaluate the re-education path undertaken by the convicted person during the execution of the sentence.

Paragraph 1-bis, dell’art. 4-to, for the same crimes listed above, provides for overcoming the ban on admission to benefits, provided that elements have been acquired that exclude the existence of links with organized crime, terrorist or subversive; or in the two so-called hypotheses. collaboration impossible or irrelevant and that is in cases:

• of the impossibility of useful collaboration with justice determined by the limited participation in the criminal act;
• in which, even if the collaboration offered is objectively irrelevant, the mitigating circumstance of compensation for damage has been applied to the same prisoners (art. 62, number 6, c.p.), or that of minimal participation in the event (art.114 c.p.) or if the crime is more serious than intended (art. 116, second paragraph, c.p.).

With regard to the procedure for granting benefits, is expected (paragraphs 2 e 3 dell’art. 4-to) that the supervisory magistrate or the supervisory court must acquire detailed information through the competent provincial committee for public order and safety in relation to the place of detention of the convicted person.

Furthermore, is expected (3 comma-bis) that penitentiary benefits cannot be granted to prisoners and internees for intentional crimes when the National Anti-Mafia and Anti-Terrorism Prosecutor or the District Prosecutor communicates, on the initiative or upon recommendation of the provincial committee for public order and safety competent in relation to the place of detention or internment, the current connections with organized crime. In this case the ordinary procedures do not apply.

Paragraph 1-ter of the art. 4-bis OP contains a list of crimes in relation to which benefits and alternative measures can be granted, unless elements have been acquired that indicate the existence of links with organized crime, terrorist or subversive. In these cases the exclusion of access to benefits is not based on an automatic mechanism, but under scrutiny by the judiciary.

These are the following crimes: • homocide (art. 575 c.p.); • sexual acts with a minor over fourteen in exchange for money (art. 600-to, second paragraph, c.p.); • child sex tourism (art. 600-five times c.p.) • aggravated robbery (art. 628, third paragraph); • aggravated extortion (art. 629, second paragraph of the criminal code); • aggravated tobacco smuggling • child pornography (art. 600-Tue) • criminal association (art. 416 c.p.) aimed at gang sexual violence (art. 609-oties c.p.) • purchase and sale of slaves (art. 602 c.p.) • crimes of aiding and abetting the entry of illegal immigrants.

Paragraph 1-quater concerns cases in which penitentiary benefits can be granted only on the basis of the results of scientific observation of the personality conducted collegially for at least one year also with the participation of psychology experts, social service, pedagogy, psychiatry and clinical criminology. It deals with, specifically of those convicted or interned for sexual crimes and specifically for crimes of child prostitution (art. 600-to c.p.), child pornography (art. 600-ter c.p.), possession of pornographic material (art. 600-quater c.p.), sex tourism aimed at the exploitation of child prostitution (art. 600-five times c.p.), sexual violence (art. 609-to c.p.), aggravated sexual assault (art. 609-ter c.p.), sexual acts with minors.

In the most recent pronouncements, the Constitutional Court has consequently affirmed the need to attribute to the judge the power to evaluate the elements of the concrete case in order to be able to make a reasonable prognosis regarding the suitability of a specific penitentiary benefit to allow the prisoner to continue on his path to reintegration.

In particular, in sentence no. 149 of the 2018, the Council declared article 58-quater O.P. constitutionally illegitimate. which provided that those sentenced to life imprisonment for the crime of kidnapping who caused the death of the person kidnapped cannot be eligible for any benefit unless they have actually served at least twenty-six years of their sentence. In this sentence the Court considered those provisions which were contrary to the constitutional principles of proportionality and individualization of punishment, due to the particular seriousness of some crimes, with absolute automatism, prevent the supervisory judiciary from proceeding with any evaluation of the results obtained during his intra-muros journey by the prisoner for which there are no indications of continuing social dangerousness, privileging the retributive or general prevention aspect of the sentence to the detriment of its resocialization purpose.

With particular regard to article 4-bis, comma 1, of the O.P. and to the absolute preclusion of access to the premium permit (not the other penitentiary benefits indicated by the same law) by those convicted of so-called impediment crimes, with sentence no. 253 of the 2019 the Court declared the constitutional illegitimacy of this article «in the part in which it does not provide that – prisoners for the crimes referred to in article 416-bis of the criminal code. and for those committed making use of the conditions set out in the same article or in order to facilitate the activity of the associations envisaged therein - reward permits may be granted even in the absence of collaboration with justice..., when elements such as to exclude have been acquired, and the current connections with organized crime, and the danger of restoring these connections".

There was a first opening with respect to the restrictive life sentence with sentence number 253 of the 23 October 2019 of the Constitutional Court which raised the debate on the relationship between the reward permit and the crime defined as “impediment” according to article 4-bis of the penitentiary system. We therefore propose a reflection on the effect of time on the re-education process of a convicted felon, particularly in cases of life imprisonment.

There is discussion about the suitability of imposing a life prison sentence for crimes of serious social importance, in light of the constitutional principle (item 27, comma 3) which requires that punishments comply with respect for human dignity and aim at the re-education of the convicted person.

To evaluate the consistency of the life sentence with the Constitution, a distinction is made between two forms of life imprisonment: that “common” and that “impediment”. The life sentence provided for by the article 22 of the penal code raises fewer legal problems than the regime of impediment. Although theoretically it is a life sentence, in practice, the prisoner sentenced to life imprisonment is guaranteed a review of his situation and social danger after a certain period of detention. Therefore, the person sentenced to life imprisonment “common” maintains the right to have his sentence inflicted by the State come to an end and to have his re-education process periodically re-evaluated, in order to facilitate a gradual reintegration into society.

The crucial point for mitigating life imprisonment and making it compatible with constitutional principles lies in access to penitentiary benefits and alternatives to detention. However, the path towards the constitutionalization of the life sentence is hindered by the provision of article 4-bis, comma 1, of law number 354 of the 1975 (penitentiary system), in relation to the discipline of impediment.

Indeed, in accordance with the provisions of article 4-bis of the penitentiary system, to those convicted of one of the specified crimes – mainly associative crimes – access to penitentiary benefits is prevented, to premium permits, to semi-freedom and conditional release. This causes a life sentence, which theoretically may not be perpetual, effectively becomes a punishment coinciding with the life of the convicted person when the concept of impediment is applied. The only way for the convicted person to interrupt this limitation is the possibility of collaborating with justice, according to the provisions of the article 58 of the penitentiary system, if this is feasible and useful.

The Constitutional Court itself has highlighted that the desire to collaborate is not necessarily indicative of authentic repentance or the intention to undertake a path of re-education. Sometimes behind this choice there can only be a utilitarian interest rather than a real repentance, without reflecting an actual desire to distance themselves from the criminal group.

If from an objective point of view, collaboration could be considered as a sign of detachment from the criminal association, from a subjective point of view, this choice does not guarantee either real repentance or a reduction in the risk of repeating criminal acts.

Furthermore, the reasons behind the choice not to collaborate are not taken into account. This decision may not derive so much from current connections with the criminal organization, but rather from the fear of reprisals against family members by the organization or from a moral principle that prevents one from trading one's freedom for that of others, thus raising questions about compatibility with constitutionally protected moral freedom.

This discipline implicitly assumes that the system is infallible, ignoring the possibility of miscarriages of justice.

Furthermore, a constitutional doubt arises regarding the fact that the right not to cooperate, guaranteed during the trial based on the principle of the right of defense and non-self-incrimination, is not respected, since there is a collaborative obligation in the execution phase of the sentence in order to avoid a more severe penitentiary regime.

The complexity and controversy arise from the extension of the right to silence in the execution phase of the sentence. Some believe that this right is limited to the trial phase, while others point out that the code of criminal procedure recognizes the right not to testify in a trial connected to the same facts as the subject of the conviction, effectively extending this guarantee beyond the trial phase.

The European Court of Human Rights examined the legitimacy of the life sentence for those who do not cooperate with justice in the Viola v. Italia, of the 13 June 2019 (became definitive 5 October 2019). According to the Strasbourg Court, this discipline violates the principle of humanity of punishment, since it denies to the condemned (not cooperating) any possibility of reintegration into society. The pronunciation in question, concerns the story of Marcello Viola, Italian citizen, convicted in the late 1990s, from the Court of Assizes of Palmi, for crimes of mafia association, homocide, kidnapping, illegal possession of weapons. Viola, under regime 41 until then 2000, he had had his requests to obtain prison benefits rejected (permits and conditional release), so long as, despite the observation reports inside the prison highlighting good behavior and a positive change in his personality, Collaboration with the judiciary had not been ascertained.

After a historical analysis of the law in question, the Court recognized that the collaboration provided for by the article 58 of the penitentiary system finds its reason in the exchange of information useful for investigations and responds to a criminal policy strategy.

However, it is important to consider that encouraging collaboration can be a criminal policy strategy, one aspect is to provide favorable treatment for those who collaborate as a reward incentive for obtaining useful information, and another is to ensure that the lack of collaboration translates into a significant penalty in the execution of the sentence. This means a significant worsening of prison conditions for those who decide not to cooperate, which, compared to encouragement through discounts or exclusions from punishment, could conflict with the principle of proportionality.

The Court found a contradiction of penitentiary discipline with the articles 3 e 27 the Constitution, also because the worst conditions of execution of the sentence for those who choose not to cooperate are not directly connected to the crime committed.

The absolute presumption could be overcome by demonstrating the current absence of links with organized crime. However, this process does not depend only on detention, but requires advanced criteria and collaboration with other competent authorities.

It is problematic to demonstrate not only the absence of current ties, but also the risk of recovery, considering personal and environmental circumstances. The burden of proving this lies with the convicted person requesting the reward permit and requires a particularly complex assertion, being a negative statement. This burden becomes even more difficult if the convicted person has received negative opinions from the competent authorities regarding connections with organized crime.

The Constitutional Court did not fully accept the arguments of the ECtHR because otherwise it would have had to declare the complete constitutional illegitimacy of the life imprisonment sentence precisely because it is contrary to the sense of humanity, in art. 27, comma 3, Cost. To understand, instead, fully understand the meaning and limits of the Constitutional Court's ruling, we must start from the concrete case: the Court of Cassation, by order of 20.12.2018, had in fact raised the question of the constitutional legitimacy of the art. 4-to, comma 1, L. 20.4 1975, n. 354 in reference to the articles. 3 e 27 Cost., not in general, but only in the part in which it excludes that the person sentenced to life imprisonment cannot be admitted to the use of a “premium permit”.

The Court affirms the illegitimacy of the absolute presumption of dangerousness present in the art. 4-bis for contrast with the articles. 3 e 27, comma 3, Cost. L’art. 3 Cost. comes into consideration because the absolute presumption unreasonably equalizes all cases and the art. 27, comma 3, Cost. Why, Consequently, life imprisonment being an obstacle contrary to the sense of humanity, it cannot allow that process of 'individualization’ which is functional, not only to respect the same sense of humanity but also, consequentially, to the same re-education of the condemned. After the intervention of the Constitutional Court, therefore, the presumption of dangerousness referred to in art. 4-bis becomes relative, therefore reward permits can be granted, not only in the original hypothesis relating to procedural collaboration, but also in that in which the execution judge, in the concrete case, currency, through the tools offered to him by the legal system, from the report of the director of the penitentiary institution, to the evaluation of the behavior of the convicted person.

The Court also outlines the evidentiary regime divided between the burdens borne by the supervising judge and those borne by the prisoner requesting the benefit. The supervisory judge will decide on the basis of the documents offered by the penitentiary authorities and the information acquired by the national anti-mafia prosecutor's office., by the District Attorney's Office, by the Provincial Committee for Order and Security (where the supervisory magistrate deems the assessment described by the national or district prosecutor's document to be flawed, he will be required to disapply it like any administrative act). The applicant must instead attach elements capable of excluding connections, current and future, with the criminal association.

To avoid emptying the scope of sentence no. 253 due attention must be paid and non-generic information requested, standardized guesses or statements, but specific information, detailed, precise deriving also from the anti-mafia prosecutors, and by the highly specialized bodies of the police forces.

The solution accepted by the Constitutional Court in the sentence 253/2019 gives the judge certainly greater discretion, which worries public opinion and some sectors of the judiciary. Just think, eg, that the life sentence was applied to 1.225 life sentences out of the total 1.790 sentenced to perpetual punishment (beyond the 70% of the total): practically, Approximately three out of four life prisoners are prisoners of war and more 400 of these the special detention regime of 41-bis is also applied.

Public concern linked to the advantages that organized crime could receive, for years it has prevented serious reflection and reform on the subject of the sanctioning system.

The ruling of the Constitutional Court therefore constituted a starting point and not an arrival point, not only because the sentence focused only on premium permits, but because sooner or later we will have to ask ourselves with more determination whether the same life sentence, also not obstructive, whether or not it is contrary to constitutional and/or community rules, overcoming the rush after every possible emergency also with a view to revisiting the sanctioning system. Presumed and real emergencies that condemn the penal system, in the part relating to sanctions, to an irrational immobility and to still have a face “prison-centric”, while the task of the criminal lawyer and of an ideal legislator is (and it will stay) that of going in search of something better than prison as a prima ratio.