CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 juin 2019

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display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sEF2C88CD { width:158.58pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s5C5E66B9 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super }     FIRST SECTION CASE OF MARCELLO VIOLA v. ITALY (No. 2) (Application no. 77633/16)             JUDGMENT     STRASBOURG 13 June 2019   This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Marcello Viola v. Italy (no. 2), The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Linos-Alexandre Sicilianos, President,   Ksenija Turković,   Guido Raimondi,   Krzysztof Wojtyczek,   Armen Harutyunyan,   Pauliine Koskelo,   Gilberto Felici, judges, and Renata Degener, Deputy Section Registrar, Having deliberated in private on 30 April 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 77633/16) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Marcello Viola (“the applicant”), on 12 December 2016. 2.     The applicant was represented by Mr   A. Mascia, a lawyer practising in Verona, and by Ms B. Randazzo and Mr V. Onida, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their former Agent, Ms E.   Spatafora, and by their co-Agent, Ms   M.   Aversano. 3.     The applicant alleged that he had been sentenced to an irreducible term of life imprisonment, which he considered inhuman and degrading. 4.     On 30 May 2017 the Government were given notice of the complaints under Articles 3 and 8 of the Convention and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 5.     Third-party comments were received from the L’altro diritto onlus documentation centre of the University of Florence, the European Prison Litigation Network, and a group of academics and experts coordinated by the University of Milan, all of whom had been given leave by the President to intervene as third parties in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 3 (a) of the Rules of Court). THE FACTS The CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1959 and is currently detained in Sulmona Prison. 7.     Between the mid-1980s and October 1996 (a period known as the seconda faida di Taurianova ) he was implicated in a series of events involving the Radicena mafia clan ( la cosca Radicena ) and the rival Iatrinoli clan ( la cosca Iatrinoli ). The criminal proceedings against the applicant 8.     The first set of criminal proceedings against the applicant and other defendants, known as the “Marcello Viola + 24” trial (criminal case no.   144/92), covered events between January 1990 and March 1992. In particular, it identified the perpetrators of four killings that had taken place on 3 May 1991 (“Black Friday”) and shed light on the networks of two mafia clans that were competing for control over the town of Taurianova and the surrounding areas. 9.     On 16 October 1995 the Palmi Assize Court sentenced the applicant to fifteen years’ imprisonment for membership of a mafia-type criminal organisation. The fact that he was the head of the mafia group and the instigator ( promotore ) of its criminal activities was taken into consideration by the court as an aggravating circumstance. With regard to the nature of the links to mafia organisations, the Assize Court highlighted several factors including “the close ties between members, the internal hierarchy, the different roles and tasks assigned to members, the control over territory, the unspecified criminal design, the practice of intimidation and, in a more modern approach, not just the harassment of businesses but also direct participation in the area’s economy through effective control over legal economic activities.” 10.     In judgment no. 3 of 10 February 1999 (deposited with the registry on 29 March 1999), the Reggio Calabria Assize Court of Appeal upheld the applicant’s conviction but reduced the sentence to twelve years’ imprisonment. The applicant did not appeal on points of law. 11.     The second set of proceedings against the applicant and other defendants, known as the “Taurus trial” (criminal cases nos. 1/97 – 12/97 – 18/97) concerned other facts relating to the criminal activities of the two Taurianova clans. On 22 September 1999 the Palmi Assize Court, in judgment no. 10/99, sentenced the applicant to life imprisonment. The judgment was upheld by the Reggio Calabria Assize Court of Appeal on 5   March 2002. In particular, the applicant was found guilty of the offence of membership of a mafia-type criminal organisation within the meaning of Article 416 bis of the Criminal Code, and of other offences (murder, abduction and false imprisonment resulting in the victim’s death, and unlawful possession of firearms), aggravated by “mafia-type” circumstances as set out in section 7 of Decree-Law no. 152 of 13 May 1991, converted into a Law on 12 July 1991 (Conversion Law no. 203/1991). The applicant’s role as head of the criminal organisation and the instigator of its activities was also taken into consideration as an aggravating circumstance in his case. Applying the rules concerning a “continuing offence” ( reato continuato ), the Assize Court of Appeal sentenced the applicant to life imprisonment, with two years’ daytime isolation. 12.     The applicant lodged an appeal on points of law which was dismissed on 26 February 2004. 13.     After the applicant had submitted a request for fresh determination of the overall prison sentence, based on the alleged continuity between the facts giving rise to the “Marcello Viola + 24” trial (judgment of 10 February 1999) and those in issue in the “Taurus” trial (judgment of 5 March 2002), the Reggio Calabria Assize Court of Appeal, in a ruling of 12 December 2008, found that the criminal design was one and the same, and recognised the continuity between the facts in issue in the two sets of proceedings. The overall sentence was therefore recalculated and set at life imprisonment, with daytime isolation for a period of two years and two months. The applicant’s detention 14.     Between June 2000 and March 2006 the applicant was detained under the special prison regime provided for in section 41 bis , subsection 2, of Law no. 354 of 26 July 1975 (hereafter “section 41 bis ”). That provision gives the prison authorities the power to suspend application of the ordinary prison regime in whole or in part for reasons of public order and safety. 15.     In particular, on 14 December 2005 the Ministry of Justice issued an order extending the “41 bis ” regime for one year in the applicant’s case. The applicant appealed against the order to the L’Aquila Sentence Supervision Court, complaining of a lack of reasons for the order, which he alleged was based on information that did not reflect his actual situation at the time, and maintaining that he had severed his ties to the mafia organisation. 16 .     In an order of 14 March 2006 the Sentence Supervision Court allowed the applicant’s request and ended the application of the special prison regime in his case. The court reiterated that the “41 bis ” regime did not require the prisoner to prove that he or she had severed links to the mafia organisation, as the burden of proof lay with the authorities. In the court’s view, it was for the latter to provide reasons, based on detailed, specific and current factual information, indicating that the prisoner in question still had contact with the mafia organisation. The Sentence Supervision Court found that in the instant case the authorities had simply observed that the criminal organisation in question was still active and that the applicant had not shown any signs of striving for rehabilitation, nor had he displayed any willingness to cooperate with the judicial authorities. The court noted that the authorities had not provided any specific evidence that the applicant was able to maintain contact with the organisation in question, and found that the order had not taken sufficient account of the progress he had made towards rehabilitation. 17.     The applicant subsequently made two requests for prison leave ( permesso premio ), a measure granted to prisoners in specific circumstances (see paragraph 34 below). 18.     His first request was refused by the L’Aquila post-sentencing judge on 13 July 2011. In the reasoning of his decision, the judge observed that prison leave could not be granted to individuals sentenced to life imprisonment for one of the offences referred to in section 4 bis of Law no. 354 of 26 July 1975 (hereafter “section 4 bis ”) in the absence of “cooperation with the judicial authorities” within the meaning of section 58 ter of the same Act (hereafter “the Prison Administration Act”). 19.     The applicant lodged an appeal against that decision with the L’Aquila Sentence Supervision Court, citing the progress he had allegedly made towards rehabilitation and contending that he had severed his links with mafia circles. He also raised a question of constitutionality concerning section 4 bis , in so far as the latter made no provision for prison leave to be granted to life prisoners who had not cooperated with the judicial authorities and whose situation did not make cooperation “impossible” or “unenforceable”, but who had made progress towards rehabilitation and maintained their innocence, and in respect of whom there was reliable evidence ruling out any links to the criminal organisation. 20.     In order no.   22/12 of 29 November 2011 (published on 9 January 2012), the Sentence Supervision Court refused the request for prison leave on the grounds that the condition of “cooperation with the judicial authorities” was not satisfied. Regarding the constitutionality of section 4 bis , the court considered, before ruling on the merits of the question, that it was first necessary to determine whether the other criteria governing eligibility for prison leave were satisfied. In particular, the court focused its assessment on the existence of positive evidence ruling out any current links with the criminal organisation. 21.     The court specified at the outset that the order of 14 March 2006 (see paragraph 16 above) lifting the “41 bis ” prison regime had no legal implications for the proceedings at hand, as the judges’ assessment concerned two different situations. In the view of the Sentence Supervision Court, the 2006 order had concerned the determination of whether or not the applicant was capable of maintaining links with the mafia organisation while in prison, whereas in the proceedings at hand the aim was to ascertain whether it could be established with certainty that the applicant no longer had links to the criminal organisation. 22.     In the case before it the Sentence Supervision Court considered that the severing of those links had not been positively established. On the contrary, it noted that the mafia group was still active in the Taurianova area, that the applicant had been the acknowledged head of a criminal organisation and that it was not apparent from the observation of his day-to-day conduct that he had engaged in a critical appraisal of his criminal past. Accordingly, the court rejected the applicant’s request without examining the merits of the question of constitutionality raised by him. The court’s order was upheld by the Court of Cassation on 7 November 2012 (judgment no. 3107/12). 23.     The second request for prison leave was refused by the L’Aquila post-sentencing judge on 4 June 2015 and by the L’Aquila Sentence Supervision Court on 13 October 2015, on the grounds of failure to cooperate with the authorities. 24 .     In the meantime, in March 2015, the applicant had submitted an application to the L’Aquila Sentence Supervision Court for conditional release under Article 176 of the Criminal Code. He pointed to his progress towards rehabilitation in prison as noted in observation reports dated 1   March 2011, 20 August 2014 and 27 January 2015, to the absence of any links to organised crime and to his inability to obtain a reduction of sentence through early release (according to the applicant, he had accrued entitlement to over 1,600 days by the date of submission of the application). He also maintained that, owing to the existence of the aggravating circumstance taken into consideration in the judgments convicting him, based on his role as head of the criminal organisation, there was no prospect that cooperation would be deemed in his case to be “impossible” or “unenforceable” within the meaning of section 4 bis of the Prison Administration Act. Lastly, he requested the Sentence Supervision Court to raise a question as to the constitutionality of section 4 bis in relation to Article 27 § 3 of the Constitution and Article 117 § 1 of the Constitution read in conjunction with Article 3 of the Convention. 25 .     In a decision of 26 May 2015 the Sentence Supervision Court rejected the application for conditional release, observing that the applicant had been convicted of membership of a mafia-type criminal organisation and of other offences committed through intimidation based on links to the mafia or with the aim of contributing to the organisation’s activities (section 7 of Decree-Law no. 152 of 13 May 1991, converted into Law no. 203 of 12   July 1991). According to the court, as the applicant had committed offences covered by section 4 bis , he was not eligible for conditional release if he had not cooperated with the judicial authorities; in his case, such cooperation was neither “impossible” nor “unenforceable” within the meaning of subsection 1 bis of the above-mentioned section. 26.     As to the question of constitutionality raised by the applicant, the court held that the provision in issue was consistent with the principles derived from Article 27 § 3 of the Constitution. After referring to the case ‑ law of the Constitutional Court and the position taken by the Court in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2   others, ECHR 2013 (extracts)), the Sentence Supervision Court stated that the legislation afforded prisoners sentenced to life imprisonment for one of the offences referred to in section 4 bis a practical possibility of release which demonstrated that the sentence had achieved its aim and that the convicted offender could reintegrate into society. According to the court, that possibility was subject to a specific requirement for the prisoner concerned to have permanently severed his or her links with mafia circles; this had to be manifested in practice through meaningful cooperation with the judicial authorities. 27.     The applicant appealed on points of law against that decision, arguing in particular that the provision establishing an automatic statutory mechanism preventing “non-cooperating” prisoners from being granted conditional release was unconstitutional. 28 .     In judgment no.   1153/16 of 22 March 2016 (published on 1 July 2016), the Court of Cassation dismissed the applicant’s appeal. With regard to the question of constitutionality he had raised, it pointed to the case-law of the Constitutional Court, and in particular judgment no. 135/2003, according to which the fact of making conditional release contingent on cooperation with the judicial authorities did not run counter to the rehabilitative purpose of the sentence. According to the Constitutional Court, convicted prisoners were free to choose whether to cooperate with the judicial authorities and were not subjected to any form of coercion. As to the applicant’s claim to be innocent, the Constitutional Court referred to another ruling of the same court (no. 306/1993), in which it had held that the section 4 bis regime did not adversely affect convicted prisoners who protested their innocence, as this circumstance had legal relevance only in the context of a retrial. Lastly, the Court of Cassation stressed the absolute nature of the presumption of dangerousness to society in the absence of cooperation with the judicial authorities. In the court’s view, the legislature was free to lay down conditions for the release of prisoners who had been convicted of particularly serious offences such as those linked to mafia-type activities. Persons serving a life sentence under section 4 bis posed a greater risk on account of the offence they had committed rather than their individual personality. That being so, it was legitimate for the legislature to require positive evidence that the person concerned had permanently severed contact with the mafia group in question. RELEVANT LEGAL FRAMEWORK AND PRACTICE Positive law The Constitution 29.     Article 27 § 3 of the Italian Constitution provides that punishments must not be inhuman and must be aimed at rehabilitating the convicted offender. The Criminal Code 30.     The provisions of the Criminal Code of relevance to the present case read as follows   : Article 22 – Life imprisonment ( ergastolo ) “ Ergastolo is a life sentence, to be served in one of the specially designated prisons ... Persons sentenced to life imprisonment may be authorised to work outside prison.” Article 176 – Conditional release “Persons sentenced to imprisonment whose conduct while serving their sentence demonstrates that they have repented may be considered for conditional release if they have already served at least thirty months or, in any event, half of the sentence where the remainder of the sentence [to be served] is not more than five years. ... Persons sentenced to life imprisonment may be considered for conditional release when they have served at least twenty-six years in prison. Eligibility for conditional release shall depend on the performance of the civic duties arising out of the criminal offence, unless the convicted prisoner can prove that it is impossible for him or her to comply with those duties. Article 416   bis – Membership of a mafia-type organisation “Any person who is a member of a mafia-type organisation of three or more persons shall be liable to imprisonment. Persons who promote, lead or manage [such an] organisation shall be liable to between twelve and eighteen years’ imprisonment on this account alone. An organisation is of a mafia type if its members use the intimidatory power of the bonds of membership and the resulting vows of obedience and silence in order to commit an offence, to acquire (directly or indirectly) the management, or other form of control, of economic activities, licences, permits, public contracts or services or to gain unfair advantages or profits for its members or other persons, or to prevent or hinder the free exercise of the right to vote, or to secure votes for members or other persons in elections ...” The Prison Administration Act 31.     Law no. 354 of 26 July 1975 ( legge sull’ordinamento penitenziario , “the Prison Administration Act”), regulates the treatment of prisoners and the execution of measures entailing deprivation or restriction of liberty. The first subsection of section 1 provides that treatment in prison must be consistent with the principles of humanity and personal dignity. 32 .     The regime of life imprisonment known as ergastolo ostativo is the result of the legislative reform introduced by Law no. 356 of 7 August 1992 (converting Decree-Law no. 306 of 8 June 1992). It is based on a combined reading of Article 22 of the Criminal Code and sections 4 bis and 58 ter of the Prison Administration Act. According to those provisions, persons who do not “cooperate with the judicial authorities” are not entitled to conditional release or to other adjustments of sentence. Section 4 bis deals more specifically with the ban on eligibility for sentence adjustments, and with the verification of dangerousness to society, in relation to a particular category of prisoners. The parts relevant to the present case read as follows: “1.     Permission to work outside prison [section 21], prison leave [section 30 ter ] and the alternatives to detention provided for in Chapter VI [of Title I], with the exception of early release [section 54], may be granted to prisoners and persons held in compulsory confinement for the following offences, only in cases where the person concerned has cooperated with the judicial authorities for the purposes of section 58 ter of the present Act: offences committed for the purpose of terrorism, including international terrorism, or subversion of the democratic order through acts of violence; any of the offences dealt with in Articles 416 bis and 416 ter of the Criminal Code or offences taking advantage of the conditions laid down by that Article or committed with the aim of facilitating the activities of the organisations referred to therein ... 1   bis .     The sentence adjustments referred to in subsection 1 may also be granted to prisoners or persons held in compulsory confinement for the above-mentioned offences, provided that evidence exists ruling out any current ties to organised crime, terrorism-related crime or subversive crime, where the person’s limited involvement in the offence as established by the judgment convicting him or her, or thorough verification of the facts and respective responsibilities as established by a final ruling, make meaningful cooperation with the judicial authorities in any event impossible, or where the cooperation offered is not objectively relevant and where one of the mitigating circumstances referred to in Article 62, no. 6 ..., Article 114 or Article   116   § 2 of the Criminal Code applies to the prisoner or person held in compulsory confinement. ...” 33 .     Section 58   ter of the Act, which deals with “cooperation with the judicial authorities”, provides: “1.     The maximum sentences laid down in sections 21(1), 30 ter (4) and 50(2) [of Law no. 354/1975] for persons convicted of one of the offences referred to in subsections 1, 1 ter and 1 quater of section 4 bis shall not apply to those who, even after being convicted, have [made efforts] either to prevent any further consequences of the offence or to provide the police or judicial authorities with evidence that is decisive for the establishment of the facts and for the identification and arrest of the perpetrators of criminal offences. 2.     The conduct referred to in subsection 1 shall be assessed by the sentence supervision court after obtaining the requisite information and hearing evidence from the public prosecutor’s office attached to the judicial body with jurisdiction in respect of the offences to which the cooperation relates.” 34 .     Section 21 and section 30 ter of the Act deal respectively with permission to work outside prison ( lavoro esterno ) and prison leave ( permessi premio ). In particular, section 30 ter provides for the possibility of granting prisoners who have demonstrated good behaviour ( condotta regolare ) in prison, and who do not pose a danger to society, a maximum of fifteen days’ prison leave. Depending on the seriousness of the offence, the prisoner concerned must have served a certain period of time in prison in order to qualify for such a measure. The assessment as to whether the prisoner poses a danger to society is a matter for the post-sentencing judge, who must consult the prison authorities. 35.     Chapter VI of Title I of this Act lists the full range of alternatives to detention, including probation ( l’affidamento in prova ai servizi sociali ), home detention, a semi-custodial regime ( semilibertà ), and early release. In particular, section 54 provides for “early release”, which allows prisoners who can demonstrate that they have followed the rehabilitation programme to have their sentence reduced by forty-five days for each six-month period served. 36.     As regards conditional release, section 2(1) of Decree-Law no. 152 of 13 May 1991 (amended by Conversion Law no. 203 of 12 July 1991) provides that “prisoners convicted of the offences referred to in the first subsection of section 4 bis of the [Prison Administration] Act may be considered for conditional release only if the conditions stipulated [in the Act] for the granting of the other statutory adjustments of sentence have been satisfied.” Constitutional case-law 37 .     Constitutional Court judgment no. 12 of 4 February 1966 provided an interpretation of Article 27 § 3 of the Constitution which clarified the balance to be struck between the different functions assigned to punishment. The relevant parts of the judgment read as follows: “... the provision in question [Article 27 § 3] does not confine itself to stating purely and simply that ‘the punishment should be aimed at rehabilitating the convicted offender’. On the contrary, it states that ‘the punishment may not constitute treatment contrary to the principle of humanity and must be aimed at rehabilitating the offender’: these elements clearly form a single indissociable whole ... Furthermore, the two parts of the sentence are united in logical terms and not just in terms of their literal meaning. On the one hand, the treatment of offenders based on the principle of humanity is necessary for rehabilitation, and on the other hand rehabilitative action is the expression of humane and civilised treatment ... When the norm is thus defined as a whole, its true value emerges. In view of its constitutional significance, the rehabilitation of convicted offenders must always be seen in the context of the actual treatment of offenders. That, moreover, is the legislature’s true objective ... The legislature sought to assign limits to punishment, designed mainly to ensure that its retributive aspect did not exceed the threshold beyond which it would be contrary to the principle of humanity. Hence, the true content of the rehabilitative principle is established. It must interact with the other functions of punishment and, accordingly, cannot be construed in an absolute and exclusive manner. Rehabilitation is certainly the aim, but in the context of the treatment of offenders ... Furthermore, the scope and limits of the rehabilitative function enshrined in the Constitution emerge from this Article itself, when it states that the punishment ‘should be aimed at’ rehabilitating the offender. This phrase, taken in both its literal and logical sense, merely articulates the legislature’s duty to be mindful of the rehabilitative aim and to put in place the tools needed to achieve it ... In sum, in enacting the above-mentioned constitutional norm, [the constitutional legislature] sought to give the rehabilitative function of punishment the status of a constitutional principle without denying the existence and legitimacy of punishments that do not incorporate, or only partly incorporate, this aim. This takes account of the other functions of punishment, which ... are also vital to the protection of citizens and of the legal system ...” 38 .     Since judgment no. 313 of 4 July 1990 the Constitutional Court’s rulings have tended to attribute a more central role to the resocialisation function of punishment, stating that this function must be a part of the punishment from its normative inception until the sentence has been served. Accordingly, this function must guide the actions of the legislature, the trial courts, the post-sentencing courts and the prison authorities (see also judgments nos. 343/1993, 422/1993, 283/1994, 341/1994, 85/1997, 345/2002, 257/2006, 322/2007, 129/2008 and 183/2011). 39 .     The constitutionality of section 4 bis was specifically addressed by the Constitutional Court in judgment no. 306 of 11 June 1993. The court reiterated the criminal-policy choices made by the legislature, observing how the latter, by making eligibility for conditional release and all other sentence adjustments dependent on cooperation by the prisoner concerned, had given express priority to general prevention and the protection of the community through a requirement for the members of mafia organisations to cooperate, something which represented an essential tool for the prosecuting authorities in combating organised crime. The Constitutional Court also held that, while cooperation with the judicial authorities entailed a presumption that the individual concerned had “dissociated” him or herself from mafia circles, and constituted an indicator of the success of the rehabilitative process, the reverse was not true, that is to say, the absence of cooperation could not be taken as an unequivocal sign that the person concerned still had links to the criminal organisation. The court also recognised that the choice to cooperate could be the result of a self-interested assessment aimed at taking advantage of statutory adjustments of sentence rather than a sign of successful rehabilitation. Nevertheless, in the Constitutional Court’s view, in the absence of a strict hierarchy among the aims of punishment laid down by the Constitution, the rules in force, although they resulted in significant impairment of the rehabilitative purpose of the sentence, did not restrict it in an unreasonable and disproportionate manner since they left open the possibility of following a rehabilitation programme. 40 .     In judgment no. 273 of 5 July 2001 the Constitutional Court again examined the constitutionality of section 4 bis . Referring to the explanatory report on the Act converting Decree-Law no. 306/1992, according to which convicted prisoners could only demonstrate conclusively that they had severed links with the criminal organisation by cooperating with the judicial authorities, the court considered that this choice by the legislature was consistent with the rehabilitative function of the sentence, as it constituted an unambiguous expression of the individual’s intention to make amends for his or her criminal past. Accordingly, the Constitutional Court regarded a decision by a convicted prisoner not to cooperate with the authorities as “a statutory presumption” that he or she had maintained criminal links and had not sought to make amends. 41 .     Two years later, in judgment no. 135 of 24 April 2003, the Constitutional Court confirmed that the prohibition arising out of section   4   bis did not constitute an automatic statutory mechanism. It held that the law did not lay down any absolute prohibitions and merely made eligibility for conditional release dependent on “cooperation with the judicial authorities”, which was the expression of a deliberate and free choice on the part of the prisoner. In the Constitutional Court’s view, the provision in question did not act as an absolute, permanent bar to conditional release and was therefore not contrary to the principle of rehabilitation in Article 27 § 3 of the Constitution. Accordingly, the absence of cooperation was regarded by the legislature as a statutory presumption that the prisoner’s rehabilitation had failed. 42.     With regard to “irrebuttable statutory presumptions” liable to affect an individual’s fundamental rights (judgments nos. 41/1999, 139/2010 and 265/2010), the Constitutional Court considered them to be contrary to the principle of equality if they were arbitrary and unreasonable or if they were not based on common practice in accordance with the maxim id quod plerumque accidit   (judgment no. 57 of 29 March 2013). With more specific reference to adjustments of sentence, the Constitutional Court stressed the need for the courts to be empowered to assess the evidence in the specific case before them, so as to ensure that the granting of a particular adjustment had a reasonable prospect of assisting the prisoner in making progress towards rehabilitation (judgments nos.   436/1999, 255/2006 and 189/2010). 43 .     In its recent judgment no. 149 of 11 July 2018 (see also judgments no. 239 of 22 October 2014 and no. 76 of 12 April 2017), the Constitutional Court ruled on the constitutionality of section 58 quarter of the Prison Administration Act. That provision, which was found to be unconstitutional, stated that no adjustments of sentence could be granted to life prisoners convicted of the offence of abduction and false imprisonment resulting in the death of the victim, until the prisoner concerned had served twenty-six years in prison. In that judgment the Constitutional Court emphasised the fact that laying down a minimum period of this kind ran counter to the principles of the progressive treatment of offenders and the flexibility of sentences, which formed the basis for the process of gradual rehabilitation. The court added that this minimum period erased the effects of “early release” (a reduction in sentence of forty-five days for each six months served), which had a negative impact on the prisoner’s motivation to complete the rehabilitative process. Lastly, referring to its previous rulings (judgments nos.   313/1990, 68/1995, 257/2006 and 78/2007), it criticised the automatic application to all prisoners of this minimum period of twenty-six years. It observed that this automatic statutory mechanism prevented the post-sentencing judge from making any assessment of the progress made by the prisoner throughout his or her time in prison, thereby giving precedence to the retributive aspect of the punishment to the detriment of its rehabilitative purpose. The court considered that “provisions imposing a blanket prohibition, for such an extended period, on sentence adjustments for certain categories of convicted prisoners – who [had] engaged in a meaningful way with the rehabilitation process and [did] not display any of the signs of danger to society identified by the legislature itself in section 4 bis – solely because of the seriousness of the criminal offence or the need to send a general preventive message to the population at large” were contrary to the constitutional principles of proportionality and individualised penalties (see also judgment no. 239 of 29 October 2014). 44 .     With regard to the presidential power of clemency provided for in Article 87 § 11 of the Constitution, the Constitutional Court, in judgment no. 200 of 18 May 2006, defined the nature of the decision to grant clemency and the scope of the powers of the head of State in that regard. It held that the presidential power of clemency served a purely humanitarian purpose and was designed to mitigate the rigid nature of the criminal law. It found in particular that since the enactment of Law no. 663 of 10 October 1986, presidential clemency, which was “designed solely to address extraordinary humanitarian situations” had resumed “its role of moderating or eliminating the criminal penalty”. Case-law of the Court of Cassation 45.     In judgment no. 45978 of 26 November 2012 the Court of Cassation ruled on an order made by the Sentence Supervision Court refusing a request for prison leave on account of the prisoner’s lack of “cooperation with the judicial authorities”. The Court of Cassation held that, in making provision for exemptions, for instance where such cooperation was “impossible” or “unenforceable”, the legislation allowed the judge to conduct an individual personalised assessment of the prisoner’s conduct, thereby ruling out rigid automatic mechanisms (see also judgments nos.   18206 of 30 April 2014, 34199 of 14 April 2016 and 9276 of 7   November 2017). 46 .     In judgment no. 47044 of 24 October 2017 the Court of Cassation reiterated its interpretation of the concepts of “impossible” and “unenforceable” cooperation (see also Constitutional Court judgments nos.   357/1994 and 68/1995). Thus, cooperation was deemed “impossible” where the information which the convicted prisoner might possess regarding the facts and the persons responsible had already been disclosed and elucidated; it was deemed “unenforceable” where the convicted prisoner, in view of his or her marginal role in the criminal organisation, did not have access to information on the facts and the persons responsible in the higher echelons of the organisation (see also, among many others, judgments nos.   3034 of 18 May 1995 and 29217 of 6 June 2013). 47 .     In judgment no. 46103 of 7 November 2014, the Court of Cassation held that “where membership of a criminal organisation is concerned, the fact that an individual is in prison does not necessarily mean that his or her involvement with the criminal organisation in question ceases automatically, given that periods of detention are accepted by the remaining members of the organisation as a foreseeable eventuality and that, through possible contacts in prison, involvement in the activities of the criminal group does not end completely”. The court added that detention did not “put an end to [the prisoner’s] availability to resume an active role” in the organisation on his or her release. In analysing the characteristics of the offence of membership of a mafia-type criminal organisation, and in particular its structural element and the legal interest protected, the Court of Cassation pointed out that this was a “permanent” offence ( reato permanente ) and that it presupposed the existence of a wide-ranging criminal design, projected into the future and without any limit in time. The offence of membership of a criminal organisation was thus to be distinguished from an offence in the context of which several individuals were involved in committing a particular “continuing offence” ( reato continuato ). As to the specific legal interest, the Court of Cassation held that it coincided with the need to protect public order from the potential threat posed by the very existence of the criminal agreement and by the intention of those involved to commit criminal acts. On the basis of these premises the Court of Cassation concluded that the “permanent” nature of the offence dealt with in Article 416 bis was consistent with inactivity on the part of the member concerned or with the organisation being dormant, such that the organisational link ceased to exist only in the objective circumstance of termination of the agreement or the subjective circumstances of death, severance of the individual ties or exclusion by the other members of the organisation. 48 .     In its recent order no. 4474 of 20 December 2018 the Court of Cassation referred a question of constitutionality to the Constitutional Court concerning the disparity between section 4 bis and the rehabilitative function of sentences. In particular, it ruled as follows: “Section 4 bis , subsection 1, of the Prison Administration Act is problematic in this context, as regards the granting of prison leave, because it imposes a blanket ban on eligibility [for prison leave] in respect of any person convicted of one of the offences referred to in the above-mentioned section who has not cooperated with the judicial authorities for the purposes of section 58 ter of the same Act. ... After all, these resocialisation aims, which preclude the application of irrebuttable presumptions with regard to adjustments of sentence, have since found support in the case-law of the European Court of Human Rights, in the Grand Chamber judgment in Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, ECHR   2013 (extracts) ... Nevertheless, the assertion that the termination of a prisoner’s links with the criminal group of which he or she was a member can only be demonstrated, while the sentence is being served, by cooperation within the meaning of section 58 ter cannot be said to be irrefutable, nor can it become an irrebuttable presumption that does not take account of the specific circumstances. ... In view of the considerations set out above, the question of constitutionality concerning section 4 bis , subsection 1, of the [Prison Administration] Act must be declared relevant and not manifestly unfounded with regard to Articles 3 and 27 of the Constitution, in so far as [the provision in question] precludes eligibility for prison leave for life prisoners who have been convicted of offences committed by taking advantage of the conditions laid down by Article 416 bis of the Criminal Code or with the aim of facilitating the activities of the organisations referred to therein, and who have not cooperated with the judicial authorities for the purposes of section 58 ter of the Prison Administration Act.” The Constitutional Court has not yet ruled on this matter. Planned reforms of section 4   bis 49 .     The “Palazzo Commission”, which was tasked by a Ministry of Justice decree of 10 June 2013 with drafting proposals for reform of the criminal justice system, proposed, in particular, amending the provisions governing life imprisonment in section 4 bis by replacing the irrebuttable presumption of dangerousness to society with a relative presumption. It thus suggested providing for other circumstances on the basis of which the outcome of the rehabilitation process and the absence of links to the criminal group could be assessed, in order to enable the prisoners in question to qualify for conditional release and the adjustments of sentence provided for by law. 50 .     On 19 May 2015 the government launched a “summit on the execution of sentences”, an initiative bringing together representatives from institutions, academia, and the various professions involved in the prison system, with the aim of drawing up plans to reform the system. The final paper, published on 19 April 2016, included a proposal to reform section   4   bis by introducing a new subsection designed to offer convicted prisoners an alternative to cooperation in order to qualify for adjustments of sentence and conditional release. The alternative consisted in restorative action with regard to the victims and the wider society. 51.     Enabling Law no. 103 of 23 June 2017 (the so-called legge Orlando ) empowered the government to reform the Criminal Code, the Code of Criminal Procedure and the Prison Administration Act. In particular, section 1(85)(e) delegated powers to the government to abolish the automatic mechanisms precluding individualised rehabilitative treatment in prison, and to reform the rules governing life prisoners’ eligibility for sentence adjustments, save in exceptionally serious and dangerous cases and, in any event, those concerning offences linked to mafia-type or terrorist activities. On 2 October 2018 the government enacted Legislative Decree no. 214 on the reform of the prison system, without amending the rules concerning the individualisation of treatment in prison and eligibility for sentence adjustments. relevant european and international instruments 52.       The European and international instruments of relevance to the present case, with particular reference to life sentences and the principle of rehabilitation, are set out in the judgments in Vinter and Others v. the United Kingdom ([GC], nos. 66069/09 and 2 others, §§ 60-75 and 76-81, ECHR 2013 (extracts)); Dickson v. the United Kingdom ([GC], no.   44362/04, §§ 28-36, ECHR 2007 ‑ V); and Murray v. the Netherlands ([GC], no. 10511/10, §§ 58-65 and 70-76, 26 April 2016). THE LAW ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 53.     Relying on Article 3 of the Convention, the applica