15 Jun The irreducible life sentence is not in accordance with the Convention on Human Rights

In the case of Marcello Viola v. Italy (no. 2) (application no. 77633/16, 13.06.2019) the European Court of Human Rights held, by a majority, that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights. 

The case concerned an irreducible sentence of life imprisonment. 

Applicant, Mr Marcello Viola, is an Italian national who is currently detained in Sulmona Prison (Italy). He was involved in a series of incidents between two rival Mafia clans from the mid-1980s until 1996. In December 2008t the applicant was sentenced to life imprisonment with daytime isolation for two years and two months.

The applicant subsequently applied for prison leave on two occasions. His first application was rejected in July 2011. His first application was rejected in July 2011 by the post-sentencing judge. The applicant appealed against that decision, but the sentence supervision court dismissed an appeal by the applicant, holding that it had not been established that he had broken off contact with the criminal organisation and that it did not appear from observation of his everyday behaviour that he had engaged in critical reflection on his criminal past. The second application for prison leave was rejected on the same grounds. In March 2015 Mr Viola applied to the sentence supervision court for release on licence. In a decision of 26 May 2015 the court held that his application could not be granted, since release on licence was conditional on cooperation with the judicial authorities and the permanent severing of ties between the convicted person and Mafia circles. In a judgment of 22 March 2016 the Court of Cassation dismissed an appeal on points of law by the applicant.

Relying on Article 3 of the Convention (prohibition of inhuman or degrading treatment), the applicant complained that his life sentence was irreducible and afforded him no prospect of release on licence. Relying on Articles 3 and 8 (right to respect for private and family life), he also complained that the prison regime was incompatible with the aim of prisoners’ rehabilitation and social reintegration.

The Court reiterated that human dignity lay at the very essence of the Convention system. It was impermissible to deprive persons of their freedom without striving towards their rehabilitation and providing them with the chance to regain that freedom at some future date. 

The Court acknowledged that the domestic rules offered convicted prisoners a choice as to whether to cooperate with the judicial authorities. However, it had doubts as to the free nature of that choice and the appropriateness of equating a lack of cooperation with the prisoner’s dangerousness to society. According to one of the third-party interveners in the case, the main reason why prisoners refused to cooperate was the fear of endangering their own lives or those of their families. The Court inferred from this that the lack of cooperation was not always the result of a free and deliberate choice, nor did it necessarily reflect continuing adherence to criminal values or ongoing links with the Mafia-type organisation. The Court considered that the lack of cooperation with the judicial authorities gave rise to an irrebuttable presumption of dangerousness which had deprived Mr Viola of any realistic prospect of release. 

Thus, the Court considered that the sentence of life imprisonment imposed on Mr Viola under section 4 bis of the Prison Administration Act (ergastolo ostativo) restricted his prospects for release and the possibility of review of his sentence. Accordingly, his sentence could not be regarded as reducible for the purposes of Article 3 of the Convention. 

Nevertheless, the Contracting States enjoyed a wide margin of appreciation in deciding on the appropriate length of prison sentences, and the fact that a life sentence might in practice be served in full did not mean that it was irreducible. Consequently, the possibility of review of life sentences entailed the possibility for the convicted person to apply for release but not necessarily to be released if he or she continued to pose a danger to society.

References from the official website of the European Court of Human Rights