Italian prison rules are unconstitutional where hey prohibit the granting of bonus permits for a period of two years ‘for individuals who, during the serving of their sentence or restrictive measures, have been convicted or are accused of an intentional crime committed during the serving of their sentence or the execution of a measure restricting personal freedom’.
The absence of the automaticity provided for by the provision under examination does not, of course, exclude the possibility that the supervisory magistrate may base his or her assessment also on facts emerging from police reports or reports from the penitentiary authorities, which may be considered as criminal offences: It is in fact essential that the supervisory magistrate can freely evaluate the evidence relating to the conduct in question, without being bound by the evaluations made by a public prosecutor, nor by those contained in a judicial decision that is not yet definitive.
It is also essential that, even in the presence of a final conviction of the applicant, the supervisory magistrate can - just as freely - evaluate the concrete relevance of the fact, judicially ascertained in another court, for the purposes of the specific decision entrusted to him, taking into account the contributions from the defence.
The presumption of innocence, far from limiting its effects to the single criminal proceeding or trial concerning the possible criminal liability of the individual, implies a general prohibition against considering that same individual guilty of the offence ascribed to him by the public prosecutor: this prohibition applies, in particular, in any judicial proceedings parallel to the same criminal proceedings, until guilt has been definitively established in the main proceedings.
(automatic non official machine translation)
ITALIAN CONSTITUTIONAL COURT
JUDGMENT NO. 24
YEAR 2025
composed of: President: Giovanni AMOROSO; Judges: 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 pronounced the following
JUDGMENT
in the judgement of constitutional legitimacy of art. 30-ter, paragraph 5, of law no. 354 of 26 July 1975 (Regulations on the penitentiary system and on the execution of measures depriving and limiting freedom), promoted by the Surveillance Magistrate of Spoleto, in the proceedings relating to G. K., with an order dated 4 July 2024, registered under no. 154 of the 2024 order register and published in the Official Gazette of the Republic no. 36, first special series, of the year 2024, whose discussion was set for the meeting in chambers on 28 January 2025.
Having seen the act of intervention by the President of the Council of Ministers;
Having heard Judge Rapporteur Francesco Viganò in the council chamber on 30 January 2025;
Having deliberated in the council chamber on 30 January 2025.
Having considered the facts
1.– By order dated 4 July 2024, the Supervisory Magistrate of Spoleto raised, as a main issue, questions of constitutional legitimacy of art. 30-ter, paragraph 5, of law no. 354 dated 26 July 1975 354 (Rules on the penitentiary system and on the execution of measures depriving and limiting personal freedom), with reference to articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to art. 6 of the European Convention on Human Rights and art. 48 of the Charter of Fundamental Rights of the European Union; in the alternative, questions of constitutional legitimacy of the same article, in relation to the same parameters, only in the part in which it provides that the granting of premium permits is also prohibited for those who are ‘charged’ for an intentional crime committed during the serving of a sentence or the execution of a measure restricting personal freedom, before two years have passed since the offence was committed.
1.1.– The referring court is called upon to decide on an application for a premium permit made by G. K. on 29 March 2024.
The judge a quo reports that G. K. is detained at the Terni prison in execution of a sentence of nine years and four months' imprisonment for various crimes, including an attempted aggravated robbery and an attempted murder, committed in June 2017. After having been in prison continuously since 2017, from February 2023 the petitioner benefited from various parole permits, first for a few hours and then also for several days, in order to strengthen his family ties.
In February 2024, the Judge for Preliminary Investigations at the Court of Velletri indicted him for attempting to introduce into the prison, on his return from a day release on 25 March 2023, a quantity of narcotic substance to be delivered to another inmate.
The new request for a special leave of absence is accompanied by a negative opinion from the penitentiary institution which, however, acknowledges that the convicted person has, in the meantime, ’ regained his behaviour’, and that he is “considered a point of reference for the Police Staff and the Ward Inspectors for the willingness he shows in trying to mediate for the good solution of difficult and critical situations within the section to which he belongs”.
The judge a quo also reports that the petitioner has always maintained his innocence with respect to the charges brought against him in March 2023.
The referring judge observes, however, that the request for leave to appeal should be considered inadmissible, given the tenor of the contested provision. In fact, the petitioner is currently under investigation for an intentional crime allegedly committed in March 2023, during the serving of the sentence; this would make new requests for the granting of a parole permit inadmissible until March 2025.
Hence the relevance of the issues raised: only if the provision is declared constitutionally illegitimate, could the judge a quo assess the existence of the conditions required by the prison system for access to the parole, evaluating, ’ possibly, both the characteristics of the offence that the convicted person is accused of having committed on his return from a previous parole, and the treatment programme followed subsequently, up to the present date, in order to find signs of behaviour that has gradually been regularised and dynamically shows the progress of the person concerned’.
1.2.– As for the non-manifest lack of grounds, the judge a quo observes that issues similar to those now raised have already been declared unfounded by this Court's sentence no. 296 of 1997, the motivational plot of which is extensively reconstructed in the order. However, the referring court observes that this ruling concluded ‘with an express invitation to the legislator [...] to review the provision from two points of view: to better circumscribe the type of intentional crime whose commission would effectively compromise the judgement on the regularity of the conduct [...] and to review the undifferentiated duration of the two-year period of exclusion from the benefit’.
However, this suggestion has not been accepted by the legislator in the twenty-seven years that have passed since, even though a commission for the reform of the penitentiary system (the so-called Giostra commission) proposed to eliminate the automatic nature of the censured provision.
Furthermore, today there should be ‘a series of interventions, including by the Constitutional Court itself, which has contributed to outlining a “very different regulatory framework”’ compared to the one existing at the time of the 1997 ruling.
The referring court observes that the provision under review provides – with a view to sanctioning the lack of reliability demonstrated by the convicted person – a time-limited but absolute and invincible bar on the granting of early release permits, which would be based on an absolute presumption of temporary unsuitability; so that the supervisory judge would be prevented from assessing ’ any concrete progress made by the convicted person during the further period of detention up to the moment of evaluation, and without being able to detect a decision relating to the concrete seriousness of the act of which the interested party is accused, as it can be inferred from the documents’.
Thus reconstructed, this provision would appear to be ‘dystonic with respect to many other provisions of the penitentiary law, which restrict the scope of similar preclusions to the intervening conviction of the interested party, also in relation to the granting of alternative measures, therefore much broader than the permit requested today, or to their revocation’.
The referring court refers in particular to: art. 47-ter, paragraph 9, of the penitentiary code, which imposes the revocation of house arrest in case of conviction for evasion; art. 54, paragraph 3, of the penitentiary code penit., which likewise imposes the revocation of early release in the event of conviction for a crime committed during the execution of the sentence after the benefit was granted; art. 58-quater, paragraphs 1 and 3, ordin. penit., which provides for the inadmissibility for three years of further requests relating to any penitentiary benefit for the convicted person who has been found guilty of escape. The references to the sentence contained in these provisions would be ‘unanimously interpreted as referring to a final judgement’ (the Court of Cassation, first criminal section, sentences 27 February-4 July 2018, no. 30140 and 27 January-25 February 2011, no. 7514 are cited).
There are, in fact, ‘other legal provisions that have negative effects for the interested party as a consequence of much less stable assessments’, such as, for example, in art. 47-quater, paragraph 6, ordin. penit., the mere accusation for one of the crimes provided for by art. 380 of the code of criminal procedure; or, in art. 51, fourth paragraph, ordin. penit., the simple denunciation for the crime of evasion committed during the execution of semi-liberty; or again, in art. 58-quater, paragraph 5, ordin. penit., the mere accusation of an intentional crime punished with a prison sentence of no less than three years maximum committed by someone who has carried out an act of evasion, that is, during work outside or the use of a reward permit or an alternative measure to detention.
These latter provisions would, however, differ from the regulation now being criticised, since in the first case the type of offence in question is precisely defined, and the judge in any case has the mere faculty of revoking the alternative measure; in the second case, the negative consequence deriving from the report is only the suspension of the measure, while its revocation depends on a definitive sentence; in the third case, finally, once again the type of offence whose commission determines the preclusion would be ’ much more clearly defined’ the type of offence whose commission determines the disqualification.
The unreasonable nature of the provision now being challenged would therefore lie ’in the provision of a two-year disqualification, linked to an application for a pardon, against the convicted person who is also accused of an offence committed during the course of his sentence, whereas in all the other provisions theoretically applicable to him for the type of offences he has committed, negative and decisive importance is given to any subsequent offences, only where these have passed the test of the conviction becoming final’.
The provision in question unreasonably equates the position of someone who has been definitively convicted of a crime with that of someone who has only been charged with one, thereby conflicting with Article 27, second paragraph, of the Constitution and, through Article 117, first paragraph, of the Constitution, with Article 6 of the ECHR and Article 48 of the CFREU. With regard to the accused, in fact, there could be a complete lack of judicial scrutiny ‘even regarding the existence of any justified reasons for the accused action, or other exonerating circumstances’; and in any case there would be a lack of ’ the stability of the judgement guaranteed for the definitively convicted […] for a period of time that can (and normally does) consume the entire two-year period of ineligibility’. The supervisory magistrate would thus be required “to consider the interested party as definitively convicted, without being able to discretionally assess the elements that are already deducible from the documents”.
The judge a quo refers to Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, and in particular its recital no. 16, which establishes that the presumption of innocence is violated if ‘judicial decisions other than those on guilt present the suspect or accused as guilty until his guilt has been legally proven’.
The foreclosure in question would also be characterised by a ‘fixity in the obstructive consequences [...] eccentric, and unreasonable, with respect to the overall regulatory framework’, considering that the convicted person who is prohibited from accessing premium permits could nevertheless obtain alternative measures “that allow the person concerned much greater freedom than a mere premium permit”, such as probation with community service or house arrest.
Furthermore, as sentence no. 296 of 1997 recognised, making the disqualification dependent on the commission of any intentional crime would be an unreasonably generic solution, which would encompass ‘a multiplicity of behaviours with a very distant penal disvalue’, preventing ‘a concrete appreciation of the meaning of the convicted person's behaviour and its projection in terms of future reliability’.
Finally, the judge a quo reviews the rulings of this Court that have gradually removed automatic obstacles following the commission of offences.
First of all, reference is made to sentence no. 186 of 1995, which declared the constitutional illegitimacy of art. 54, paragraph 3, of the penal code, which provided for the obligatory revocation of early release in the case of a conviction for a crime committed during the period of execution following the granting of the benefit. This very ruling would help to shed light on a further aspect of the constitutional illegitimacy of the provision now under examination with regard to art. 27, third paragraph, of the Constitution, since the prohibition provided for therein would prevent the supervisory magistrate ‘from concretely evaluating the significance of any regression that may have occurred in the person's rehabilitation process and the person's ability to make amends and get back on track, thus earning a new judgement of merit for access to the permit’.
The referring court also recalls sentence no. 173 of 1997, which declared the constitutional illegitimacy of art. 47-ter, last paragraph, of the penitentiary order, which in the version in force at the time provided for the automatic suspension of house arrest in the event of a complaint for unjustified absence from home.
The referring court continues that sentence no. 189 of 2010 did, however, declare inadmissible the questions of constitutional legitimacy proposed with reference to art. 58-quater, paragraph 1, ordin. penit., which provides for the preclusion of the granting of certain penitentiary benefits to the convicted person who has been found guilty of evasion pursuant to art. 385 of the penal code on the basis, however, of a constitutionally oriented interpretation of the censured provision already adopted by the jurisprudence of legitimacy, which would have allowed the judge a quo to overcome the preclusion. This interpretation would instead be excluded with respect to the provision now under examination, given its unequivocal literal wording.
Finally, judgement no. 173 of 2021 is cited, in which this Court declared unfounded the questions of constitutional legitimacy raised with reference to art. 58-quater, paragraphs 1, 2 and 3, ordin. penit., which prohibits the granting of certain benefits for a period of three years from the moment of revocation of an alternative measure, considering that the basis of the prohibition was ‘an evaluation carried out by the supervisory judiciary, on a case-by-case basis, and following an examination of the merits of the type of violations committed by the convicted person during the measure’. This would distinguish that case from the one in question, in which ‘the supervisory judiciary is not responsible for any concrete examination of the actions of the prisoner, even if only accused of an intentional crime committed during the execution of the sentence’. A screening – the referring judge argues – that is ‘different and separate from those of the court of first instance’, since ‘it necessarily takes into account the concrete significance of the actions in that process, always illuminated by the re-educational finality, which is proper to the execution of the sentence’. It is true that even the supervisory judiciary would sometimes base ‘its decisions, on the state of the proceedings, also on information from p. s., even before criminal cases’; but in such cases it would still be up to “the re-educational jurisdiction to make a concrete reading of what has been reported and to carry out a screening which, therefore, is done with the exercise of prudent discretion and by relating what has been narrated to the imagined re-socialising progression”.
For all these reasons, the referring court primarily requests a declaration of constitutional illegitimacy of the entire contested provision.
In the alternative, he invites this Court to declare the constitutional illegitimacy of the provision only in the part in which it provides that the granting of premium permits is prohibited before two years have elapsed since the commission of the offence, even with regard to those who are merely accused – and not convicted – of an intentional crime committed during the serving of a sentence or the execution of a measure restricting personal freedom.
2.– The Prime Minister has intervened in the proceedings, represented and defended by the Attorney General, requesting that the questions be declared manifestly unfounded.
The Attorney General first recalls that the proposed questions have already been addressed by this Court in judgements no. 296 and no. 403 of 1997, which respectively ruled out the constitutional illegitimacy of the prohibition referred to in the contested provision with regard to adults, and instead declared the parallel prohibition with regard to minors to be constitutionally illegitimate.
The questions would therefore be manifestly unfounded, due to the unchanged regulatory framework of reference with respect to the rulings of 1997, so as to render ‘completely current’ the arguments then used by this Court.
The only legislative provision reformed in the meantime would indeed be art. 47-ter, paragraph 9, of the penitentiary code, which establishes, as of 2013, the revocation of house arrest only in the case of a conviction – and not merely a complaint, as in the provision in force in 1997 – for the crime of evasion.
However, this amendment that occurred in the meantime would not be suitable to establish the unreasonableness of the provision here censured, as it involved an inappropriate tertium comparationis. In fact, in the first place, the early release permit would constitute a mere form of treatment and not an alternative measure to detention, such as that regulated by the tertium comparationis. Secondly, the preclusive automatism of the censured provision differs from that provided for by art. 47-ter, paragraph 9, of the penitentiary order, which would impose the revocation of a measure already granted: this would justify a ‘greater significance of the requested assessment regarding the commission of the crime, in that it relates to a measure already adopted’.
Considered in law
1.– With the aforementioned ordinance, the Supervisory Magistrate of Spoleto raised, as a main point, questions of constitutional legitimacy of art. 30-ter, paragraph 5, ordin. penit., with reference to articles 3, 27, second and third paragraphs, and 117, first paragraph, of the Constitution, the latter in relation to article 6 of the ECHR and article 48 of the CDFUE.
In the alternative, the referring court criticised the provision, with reference to the same parameters, only in the part in which it provides that the granting of premium permits is also prohibited for those who are ‘charged’ with an intentional crime committed during the serving of a sentence or the execution of a measure restricting personal freedom, before two years have elapsed since the commission of the offence.
The contested provision states that ‘for individuals who, during the serving of their sentence or restrictive measures, have been convicted or are accused of an intentional crime committed during the serving of their sentence or the execution of a measure restricting personal freedom, the granting of remission is only permitted after two years have elapsed since the commission of the offence’.
The referring court must consider an application for early release made by a convicted person in March 2024. Like the contested provision, the application would, however, be inadmissible, since in February 2024 the applicant, who had been detained since 2017, was committed for trial for a drug offence allegedly committed by him in March 2023 upon his return from a previous parole. The applicant was therefore ‘charged with an intentional crime committed during the serving of the sentence’ in the two years prior to the request for the granting of the benefit: which would make the request itself a priori unassessable.
If the legal bar were removed, the judge a quo could instead concretely assess the treatment programme carried out in the meantime by the convicted person, and possibly grant the requested benefit.
2.– The questions are admissible.
This applies in particular to the objection raised in relation to art. 48 CDFUE, through art. 117, first paragraph, Cost. and, implicitly, art. 11 Cost.: the latter parameter necessarily comes into consideration whenever it is assumed that a national law is contrary to a provision of European Union law, with respect to which the limitations of sovereignty based on this constitutional provision operate, as affirmed by the constant and long-standing jurisprudence of this Court (sentences no. 349 of 2007, point 6.1. of the Consideration in law; no. 348 of 2007, point 3.3. of the Consideration in law; no. 183 of 1973, point 5 of the Consideration in law).
According to the equally constant constitutional jurisprudence, the evocation of provisions of the Charter of Fundamental Rights of the European Union as parameters interposed in the judgment of constitutional legitimacy presupposes that the dispute under examination by the referring court falls within the scope of application of European Union law, pursuant to art. 51 CDFUE (most recently, sentence no. 7 of 2025, point 2.3. of the Consideration in law, and further references therein).
Although not ex professo addressing this specific issue, the judge a quo evokes, in the order for reference, Directive 2016/343/EU on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings. This directive, based on Article 82(2)(b) of the Treaty on the Functioning of the European Union, operates as a ‘horizontal’ instrument of application in the legal systems of the Member States, aiming to establish minimum standards of protection of certain rights recognised by Articles 47 and 48 of the CFREU, including the presumption of innocence, for all Member States.
This is sufficient to ensure that the dispute that is the subject of the proceedings in question, which calls into question the presumption of innocence, falls within the scope of application of Union law pursuant to Article 51 CFREU, and the purely internal nature of the proceedings does not stand in the way of this (ruling no. 182 of 2021, point 4.2. of the Consideration in law, and further references therein). With the consequent invocability, in the case in question, of the same art. 48 CDFUE, as an intervening parameter of constitutional legitimacy.
3.– Before addressing the merits of the questions, it should be emphasised that – as underlined by the referring court – doubts of constitutional legitimacy similar to those now formulated were judged unfounded by this Court in sentence no. 296 of 1997.
In summarising the practice observed throughout the entire span of its jurisprudence, this Court has recently noted that the tendency to respect its own precedents – together with the consistency of interpretation with the text of the rules interpreted and the persuasiveness of the motivations – is an essential condition for the authoritativeness of the decisions of any superior jurisdiction; and that this also applies, to a special degree, for the constitutional court (ruling no. 203 of 2024, point 4.5. of the Consideration in law).
However, as with any other higher jurisdiction, it is quite possible for this Court to reconsider its guidelines, and if necessary modify them, when there are ‘particularly cogent reasons that make the previously adopted solutions no longer tenable: for example, the irreconcilability of precedents with the subsequent development of the same jurisprudence of this Court or that of the European Courts; the changed social or legal context in which the new decision is made or - in any case - the supervening of circumstances, of a factual or normative nature, not previously considered; the increased awareness of the undesirable consequences produced by previous jurisprudence’ (ruling no. 203 of 2024, point 4.5. of the Considered in law). These criteria are widely used in comparative constitutional jurisprudence, and have also been referred to in substance by the Court of Cassation on several occasions, including recently, with regard to the possibility of modifying its own previous guidelines (Court of Cassation, United Civil Sections, sentence 28 March 2024, no. 8486, point 8; and, in a similar sense, sentence 4 December 2024, n. 31136, point 7).
Now, sentence no. 296 of 1997 addressed and resolved to the effect of non-grounds two questions that the referring party substantially re-proposes: first, that relating to the alleged contrast with the principle of non-culpability referred to in art. 27, second paragraph, of the Constitution. (point 5 of the Consideration of the law); secondly – after having excluded certain aspects of unreasonable unequal treatment that are not considered here – that relating to the alleged unreasonable sacrifice of the principle of the rehabilitative purpose of punishment (point 7 of the Consideration of the law), which the referral order under examination today raises, evoking together, Articles 27, third paragraph, and 3 of the Constitution.
It is therefore necessary to verify whether – with respect to both profiles – there are reasons that could lead this Court to reconsider that decision, taking into account, in particular, the subsequent evolution of the regulatory and jurisprudential context.
4.– With regard first of all to the presumption of innocence, sentence no. 296 of 1997 had considered the complaints of the referring judges to be ‘exorbitant with respect to the aims pursued by art. 27, second paragraph, of the Constitution’. The presumption of innocence, the ruling observed, ‘is [...] essentially linked to the offence for which the new charge has been brought and cannot be extended to aspects which, in the case in question, concern the prison treatment following the crime for which the sentence is being served’ (point 5 of the Consideration in law).
However, such a conclusion is now at odds with the interim interpretations given to the presumption of innocence (or of not guilty, as it is currently called in international and EU sources) by the European Court of Human Rights, the interpretation of which the national legal system is in principle bound by under Article 32 of the ECHR (judgments no. 348 of 2007, point 4.6. of the Consideration in law, and no. 349 of 2007, point 6.2. of the Consideration in law) (infra, 4.1.), as well as by recent developments in Union law (infra, 4.2.) and the case law of this Court itself (infra, 4.3.).
4.1.– As for the case law of Strasbourg, a recent ruling by this Court emphasised that the presumption of innocence based on Article 6, paragraph 2, of the ECHR, as interpreted by the Court of Strasbourg, ‘assumes a broader significance with respect to the national parameter, having a scope that is not strictly intra-procedural’ (ruling no. 182 of 2021, point 9 of the Consideration in law).
On the one hand – this Court continued, extensively quoting the Grand Chamber judgment of 12 July 2013, Allen v. United Kingdom – ‘the presumption of innocence constitutes a “procedural guarantee” intended to operate ’ in the context of a criminal trial’, producing effects in terms of the “burden of proof”, the operativity of “legal presumptions of fact and law”, the applicability of the “privilege against self-incrimination”, as well as in relation to “pre-trial publicity and premature expressions, by the trial Court or other public officials, of the guilt of an accused”. On the other hand, the presumption of innocence, ‘in line with the need to ensure that the right guaranteed’ by art. 6, paragraph 2, ECHR ‘is practical and effective’, extends its effects outside the criminal trial and operates in the time following its conclusion or interruption, not in order to provide procedural guarantees to the accused, but with the aim of ’ protecting persons who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been terminated, from being treated by public officials and authorities as if they were in fact guilty of the alleged offence’ (point 9 of the Consideration in law).
The protection guaranteed by art. 6, paragraph 2, ECHR therefore extends beyond the specific criminal proceedings in which the possible criminal liability of the accused is being contested.
In particular, according to the constant jurisprudence of the ECHR, it extends not only to subsequent judicial proceedings, but also to parallel ones in which the offence charged to the person, but not yet definitively ascertained against him, may assume some relevance: for example, to the procedure for revoking the conditional suspension of the sentence (ECHR, judgment of 3 October 2002, Böhmer v. Germany, paragraph 57 et seq.; 12 November 2015, El Kaada v. Germany, paragraph 56 et seq.); to criminal proceedings in which the inclusion of an aggravating circumstance must be assessed (judgment of 19 June 2012, Hajnal v. Serbia, paragraph 131; judgement 14 March 2019, Kangers v Latvia, paragraph 61); to proceedings in which a decision must be made regarding the extension of pre-trial detention (judgement 31 October 2013, Perica Oreb v Croatia, paragraph 147).
4.2.– As regards EU law, the right to the presumption of innocence is now expressly recognised by art. 48, paragraph 1, CDFUE: a provision whose meaning and scope – by virtue of the general provision of art. 52, paragraph 3, CDFUE – incorporate the minimum level of protection provided for by the corresponding provision of the ECHR, namely art. 6, paragraph 2, as interpreted by the Court of Strasbourg.
At the level of secondary legislation, the principle of the presumption of innocence is specifically recognised in Article 4, paragraph 1, of Directive 2016/343/EU, according to which ’ Member States shall take the necessary measures to ensure that, for as long as the guilt of a suspect or accused person has not been proven according to law, […] judicial decisions, other than those on guilt, do not refer to that person as being guilty’; this obligation has been implemented in Italian law, among other things, by Legislative Decree No. 188 of 8 November 2021, containing “Provisions for the full adaptation of national legislation to the provisions of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016”. 188, containing ‘Provisions for the full adaptation of national legislation to the provisions of Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings’.
4.3. Finally, with regard to the case law of this Court, it too has now recognised that the presumption of innocence referred to in Article 27, second paragraph, of the Constitution extends to all judicial proceedings in which a criminal offence alleged against the person in criminal proceedings, but not yet definitively established at that time, may assume some relevance.
Since immediately after sentence no. 296 of 1997, this Court has stated that the constitutional principle of the presumption of innocence implies the need for the commission of a new crime in the period indicated by art. 445, paragraph 2, of the code of criminal procedure following the sentence of application of the penalty on request, which the law links the effect of preventing the extinction of the previous offence to, is ascertained with an irrevocable conviction (order no. 107 of 1998 and, with reference to the extinction of the offence consequent to the conditional suspension of the sentence, orders no. 210 of 2020 and no. 101 of 2019).
More recently, this Court, in examining a provision that establishes the revocation of the alternative sanction of expulsion of the foreigner if he illegally re-enters the territory of the State, thus committing the corresponding offence, affirmed that the enforcement judge cannot ‘proceed with an incidental verification of the criminal offence based solely on the news of an offence following the discovery of the presence of the foreigner on national territory by the police, without thereby violating the presumption of innocence referred to in Article 27, second paragraph, of the Constitution, the overcoming of which requires the conduct of a trial in which the accused is placed in a position to defend himself adequately’ (ruling no. 163 of 2024, point 3.2. of the Consideration in law).
4.4.– It is therefore clear that the presumption of innocence, far from being limited to the individual criminal proceedings or trial concerning the possible criminal liability of the individual, implies a general prohibition on considering that same individual guilty of the offence attributed to him by the public prosecutor. This prohibition applies, in particular, in the context of any judicial proceedings parallel to the same criminal proceedings, until guilt has been definitively established in the court of law.
Hence the now evident friction with the principle in question of a provision which, like the one being criticised here, obliges a judge (in this case, the supervisory magistrate) to adopt a negative measure against the interested party, for the sole fact that he has been accused of a crime by the public prosecutor.
In practical terms, such a provision obliges the judge to ‘presume the accused guilty’. It deprives the supervising magistrate of any margin of autonomous appreciation on the real consistency of the notitia criminis and, above all, prevents him from hearing the accused and his defence counsel, and from taking into account their deductions regarding the actual commission of the offence, as well as evaluating its relevance with respect to the thema decidendum in the individual proceedings.
With a consequent, indirect vulnus to the same right of defence of the interested party, closely linked to the presumption of innocence: which, in essence, this Court has recently had the opportunity to highlight, when it underlined the need for all the elements collected by the public prosecutor in a criminal proceeding concluded with a dismissal to be ’ subject to careful re-evaluation in the context of any different proceedings (civil, criminal, administrative, disciplinary, accounting, prevention) in which they might subsequently be used, it being necessary in particular to ensure for the interested party the widest possible opportunity for cross-examination, in accordance with the procedural rules in force in the relevant sector of the legal system’ (ruling no. 41 of 2024, point 3.8. of the Consideration in law).
5.– As anticipated, ruling no. 296 of 1997 had also excluded the contrast of the censured provision with the necessary re-educational purpose of the penalty referred to in art. 27, third paragraph, of the Constitution.
The sentence in question recalled, in fact, its already numerous precedents that had criticised ‘the use by the legislator of mechanisms that prevent the supervisory magistrate from verifying the effective impact of a specific offence on prison treatment’. However, he had held that the preclusive mechanism in question – not definitively excluding a person from the benefit – could pass constitutional scrutiny: ‘The incentive to ‘regular prison conduct through the promise of a reward permit’ may justify that, in the presence of intentional crimes, the new concession may remain precluded for a certain period of time.’
Such a mechanism was therefore not considered suitable for compromising the re-educational function of the punishment, the foreclosure being here ‘framed in the assumption of that regular conduct of the convicted person which is essential for the granting of reward permits’.
Moreover, this Court had expressed the hope that the legislator would review the automatism in question, ‘in relation to the types of intentional crimes whose commission effectively compromises the judgement on the regularity of the conduct and, consequently, makes it possible to presume the dangerousness of the convicted person, as well as in relation to the undifferentiated duration of the period of exclusion from the benefit’ (point 7 of the Consideration of the law).
5.1. Almost thirty years have passed since that hope, and the automatism criticised by this Court remains intact, despite the proposals for reform formulated in the meantime to remedy the critical issues highlighted on that occasion.
In particular, an initial draft legislative decree reforming the prison system in implementation of the delegation referred to in art. 1, paragraphs 82, 83 and 85, letters a), b), c), d), e), f), g), i), l), m), o), r), s), t) and u), of the law of 23 June 2017, n. 103 (Amendments to the penal code, the code of criminal procedure and the penitentiary system) had provided for the repeal of the provision now censured, in accordance with the indications contained in the report of the Commission for the reform of the penitentiary system established by decree of the Minister of Justice of 2 July 2013 (so-called Giostra commission) (page 114). This plan was presented to the Chambers, obtaining a favourable opinion on the repeal of the censured provision, but was not adopted by the Government.
5.2. On the other hand, sentence no. 296 of 1997 – which had held that the critical issues highlighted did not yet reach the threshold of constitutional illegitimacy – itself posed a problematic reconciliation not only with the jurisprudence that considers automatism in the execution of juvenile justice to be incompatible with articles 3 and 31 of the Constitution, and which would lead this Court, a few months later, to declare the constitutional illegitimacy of the same provision with reference to the same provision with reference to the same provision. 3 and 31 of the Constitution, the automatic nature of the juvenile justice system, and which would lead this Court, a few months later, to declare the constitutional illegitimacy of the same provision with reference to juvenile offenders (sentence no. 403 of 1997); but also, and above all, with the series of rulings that, since before 1997, had criticised similar automatic procedures also in the context of criminal enforcement concerning adult convicts.
In particular, with sentence no. 186 of 1995, this Court had declared the provision of art. 54, third paragraph, penit. ord. penit., in the part in which it provided for the revocation of early release in the case of conviction for a crime committed during the execution of the sentence after the benefit had been granted, instead of establishing that early release is revoked if the subject's conduct, in relation to the sentence received, appears incompatible with the maintenance of the benefit. The ruling had, in particular, criticised the ‘regulatory indifference to any kind of assessment regarding the compatibility or otherwise of the effects arising from early release with the symptomatic value that the sentence can actually assume’; an indifference that led, according to this Court, ’ presuppose that at the bottom of such a rigorous option [there was] nothing more than a precise design aimed at ensuring, through a mechanism of a merely punitive nature, the sole ‘good conduct’ of the subject in expiation of punishment, thus relegating to the shadows the very function of impulse and stimulus to an effective collaboration in the re-educational treatment that constitutes the very essence of the institution’ (point 2 of the Consideration in law).
Judgment no. 173 of 1997, which came just before judgment no. 296 of 1997, had in turn declared the last paragraph of art. 47-ter of the penitentiary order to be constitutionally illegitimate penit., in the part where it automatically derived the suspension of house arrest from the presentation of a complaint for the crime, foreseen by paragraph 8 of the same article, of unjustified removal from the home. Although the principle of presumption of innocence was not taken into consideration at the time, the sentence had underlined how an ‘abrupt and automatic suspension’ of house arrest, without the judge being able to assess on a case-by-case basis the ‘circumstances in which the removal reported as a crime took place’, could ‘interrupt a process of re-socialisation and rehabilitation without sufficient reason’, thus compromising the re-educational purpose of the alternative measures to detention (point 5 of the Consideration in law).
5.3.– Constitutional jurisprudence after 1997 has confirmed the tendency towards constitutional illegitimacy of the automatic revocation or foreclosure of benefits and alternative measures, consequent to the commission of new offences by the convicted person; insisting, on the other hand, on the need for a precise evaluation by the supervising judge regarding the concrete significance of the fact with respect to the treatment programme undertaken by the convicted person and the judgement regarding his possible persistent social dangerousness.
In this context, sentence no. 189 of 2010, for example, ruled inadmissible questions of constitutional legitimacy relating to the denial of access to prison benefits established by art. 58-quater, paragraph 1, penit. penit. against those who have been convicted of escape, considering that the referring judge had not interpreted it in accordance with the Constitution. Based on this interpretation, the judge should have in any case ‘evaluated, case by case, with thorough and rigorous motivation, the personality and concrete behaviour of the convicted person responsible for the crime as per art. 385 of the penal code’ (point 3 of the Consideration in law), in order to ascertain or exclude his actual and lasting social dangerousness, as well as his progress in treatment.
More recently, and in general, this Court has enunciated the ‘criterion of “constitutionally binding” ’ which ‘excludes “rigid automatisms and requires instead that an individualised assessment be made on a case-by-case basis” in the matter of penitentiary benefits (ruling no. 436 of 1999), [...] since if the use of individualising criteria were not allowed, ’the repressive option would end up relegating the re-educational profile to the shadows’ (ruling no. 257 of 2006)» (ruling no. 149 of 2018, point 7 of the Consideration in law; as well as, in the same sense, rulings no. 56 of 2021, point 2.4. of the Consideration in law, and no. 253 of 2019, point 8.2. of the Consideration in law).
Finally, when this Court had to examine the constitutional legitimacy of the regulations referred to in art. 58-quater, paragraphs 1, 2 and 3, ordin. penit., in the part in which it prohibits the granting of certain benefits for a period of three years from the moment of revocation of an alternative measure, held that this prohibition – although defined as ‘severe and questionable from the point of view of penitentiary policy choices’ – passed constitutional muster only on the basis of the consideration that the supervisory court normally orders revocation only in the most serious cases of violation of the requirements inherent to the measure, and in particular when it is demonstrated that the need for a regression of the re-educational path and an at least temporary reinstatement of the detention regime, in particular in order to contain a concrete risk of recidivism that has emerged for the convicted person’ (judgment no. 173 of 2021, point 3.3.3. of the Considered in law). In making such assessments, this Court continued, the court ‘cannot fail to take into account the particularly serious consequences associated with revocation, and in particular the preclusion - for a period of three years - of any alternative measure or penitentiary benefit other than early release’ (again, point 3.3.3. of the Consideration in law); which ensures, at least in the decision that determines the subsequent preclusive effect, a significant margin of discretion for the supervisory judge, outside of any automatism incompatible with art. 27, third paragraph, of the Constitution.
5.4. – The provision now under examination, on the other hand, eliminates any margin of discretion on the part of the supervisory magistrate regarding the treatment path undertaken by the prisoner and his residual social dangerousness, whenever he has been convicted (or is even simply accused) of any intentional crime committed during the execution of the sentence or of a measure that in any case restricts personal freedom. And this for two years from the commission of the offence: a period of time that is anything but negligible for someone who spends their life in prison.
6.– In light of all the considerations made up to this point, this Court believes that the conclusions reached on this point in sentence no. 296 of 1997 are no longer tenable today; and that the provision in question must, consequently, be declared constitutionally illegitimate.
More precisely, the reasons set out above – relating to the incompatibility of the automatic exclusion with regard to the new granting of premium permits with the necessary re-educational purpose of the penalty referred to in Article 27, paragraph 3, of the Constitution – entail the lapsing of the entire provision, with the consequent absorption of the further objections (raised with reference to Articles 27, second paragraph, Cost.; 117, first paragraph, Cost., in relation to art. 6 CEDU; 11 and 117, first paragraph, Cost., in relation to art. 48 CDFUE) relating to the fragment of the provision concerning the position of those who are only accused of committing a new crime during the execution of the sentence.
The question formulated with reference to art. 3 of the Constitution also remains absorbed, moreover, it is merely ancillary to the question regarding the contrast with the re-educational function of the punishment.
7.– The absence of the automaticity provided for by the provision under examination does not, of course, exclude the possibility that the supervisory magistrate may base his/her assessment also on facts emerging from police reports or reports from the penitentiary authorities, which may lead to the integration of hypotheses of crime.
With regard to reward permits, art. 30-ter, paragraph 1, penitentiary ord. penit. confers on the supervisory magistrate the task of ascertaining, on the one hand, the ‘regular conduct’ of the convicted person - in turn demonstrated, according to paragraph 8, by the ‘constant sense of responsibility and correctness in personal behaviour, in the activities organised in the institutes and in any work or cultural activities’ –; and, on the other hand, the absence of social dangerousness of the convicted person himself.
In the context of these investigations, the supervisory magistrate must therefore also take into account any notitiae criminis relating to the conduct of the person requesting the early release (such as the attempt to introduce drugs into the prison on returning from a previous early release, for which the applicant in the proceedings a quo is accused). And this is regardless of whether such conduct actually integrates all the objective and subjective elements of a crime, and whether it is in fact likely to give rise to criminal liability for the applicant: This is a matter on which the supervisory magistrate cannot and must not express an opinion, as he may also base the denial of a benefit on facts for which the parallel criminal trial ended with a verdict of acquittal due to the absence of a lawsuit (Court of Cassation, first criminal section, sentence 9 September-17 November 2021, no. 41796), or even acquittal because the facts – although considered to exist in their materiality – did not constitute a criminal offence (first criminal section, sentence 29 February-9 May 2024, no. 18351).
However, it is essential that the supervisory magistrate can freely evaluate the evidence relating to the conduct in question, without being bound by the evaluations made on it by a public prosecutor, nor by those contained in a judicial decision that is not yet definitive.
It is also essential that, even in the presence of a final conviction of the applicant, the supervisory magistrate can - just as freely - evaluate the concrete relevance of the fact, judicially ascertained in another court, for the purposes of the specific decision entrusted to him, taking into account the contributions from the defence.
For these reasons
THE CONSTITUTIONAL COURT
declares that art. 30-ter, paragraph 5, of law no. 354 of 26 July 1975 (Rules on the penitentiary system and on the execution of measures depriving and limiting freedom) is unconstitutional.
So decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 30 January 2025.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Editor
Valeria EMMA, Registrar
Filed with the Registrar on 7 March 2025
The Registrar
Signed: Valeria EMMA