Viola V. Italy - First Section

AMICUS CURIAE Application No. 77633/16 – Viola v. Italy - First Section - Davide Galliani, Professor of Public Law, University of Milan, and Andrea Pugiotto, Professor of Constitutional Law, University of Ferrara, and Gaetano Silvestri, Emeritus Professor of Constitutional Law and former President of the Italian Constitutional Court, Giovanni Maria Flick, Emeritus Professor of Penal Law and former President of the Italian Constitutional Court, Paola Bilancia, Professor of Constitutional Law, University of Milan, Adolfo Ceretti, Professor of Criminology, University of Milano-Bicocca, Carlo Fiorio, Professor of Procedural Penal Law, University of Perugia, Glauco Giostra, Professor of Procedural Penal Law, University of Rome La Sapienza and former President of the Commission for the reform of the Penitentiary Law promoted by the Consiglio Superiore della Magistratura (Conseil Supérieur de la Magistrature), Vittorio Manes, Professor of Penal Law, University of Bologna, Francesco Palazzo, Professor of Penal Law, University of Florence and former President of the Commission for the reform of penal sanctions promoted by the Ministry of Justice, Marco Ruotolo, Professor of Constitutional Law, University of Rome Tre, Emilio Santoro, Professor of Philosophy of Law, University of Florence, Francesco Viganò, Professor of Penal Law, Bocconi University Milan, Stefano Anastasia, Regional Guarantor for the Rights of Detainees (Lazio and Umbria), Franco Corleone, Regional Guarantor for the Rights of Detainees (Tuscany) and National Coordinator of the Local Guarantees for the Rights of Detainees, Sergio D’Elia, Secretary of Nessuno Tocchi Caino (Hands Off Cain), Patrizio Gonnella, President of Antigone, Luigi Manconi, President of the Special Committee for the guarantee of Human Rights, Senate, Italian Parliament, Antonio Marchesi, President of Amnesty International – Italian Section, and Mauro Palma, National Guarantor for the Rights of Detainees and former President of the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT). 15 September 2017 – ENGLISH VERSION § 0. A brief note on the terms which will be used in this Amicus. Whilst the term “ergastolo ostativo” can be translated into French with the expression “réclusion à perpétuité réelle”, the words which best express the term “ergastolo ostativo” in English would be Real Life Imprisonment or Perpetual Life Imprisonment. As the second term is more similar to the actual meaning of “ergastolo ostativo”, we will employ it for the rest of the Amicus- considering that the use of the term “pena perpetua” (“perpetual penalty”) in Article 22 of the Italian Penal Code derives from the French expression “perpétuité”. § 1. The European Court of Human Rights (hereinafter: the Court) is evaluating, for the first time since its institution, the compatibility of the Italian penalty of Perpetual Life Imprisonment (hereinafter: P.L.I.) with the Convention. Although the issue is completely new and there are serious questions regarding the Convention’s interpretation, we will not pronounce on the opportunity of relinquishment. § 2. We would like to highlight the fact that when the Court has to deal with cases of Life Imprisonment it has always, since Vinter and Others v. the United Kingdom (Grand Chamber, 9 July 2013) up to now, linked the matter to Article 3 of the Convention. Moreover, taking into account the diversity of the cases, the Court has almost unanimously found a violation of Article 3 in nine cases, and a non- violation of Article 3 in two cases(1). It is essential to note that the Court has derived the concept of human dignity from Article 3, since Tyrer v. the United Kingdom (25 April 1978), even though the concept itself is not explicitly stated in the Convention. It goes without saying that the concept of human dignity is the basis of the Convention’s whole human rights system. Moreover, the Court has emphasised, based on Article 15, that the prohibition to violate human dignity cannot be derogated. Therefore, human dignity must be guaranteed even in times of war and regardless of any other public emergency threatening the life of the nation. The Court recognised that human dignity must be upheld no matter what crimes the individual has committed. During the Tyrer case, which undoubtedly may be described as a landmark case in the Court’s sixty-year jurisprudence, the Court expressed two other extremely important concepts, which have never been doubted again since then (2). It is worth remarking that the Court unanimously rejected the Party’s request to strike out the case as it involved “general questions” which regarded the Court’s interpretation of the Convention(3). On one hand, the Court (§ 31) has described the Convention as a “living instrument” whose interpretation should follow the evolution of the State legal systems and of the European legal systems, which both consider human dignity to be a primary and fundamental objective. On the other hand, the Court (§ 32) has underlined that in order to determine whether or not a penalty or treatment is degrading (1) After the Vinter case, the violation of Article 3 was declared by the Court in 1) Öcalan v. Turkey no. 2, Second Section., 18 March 2014, final 13 October 2014, 2) Laszlo Magyar v. Hungary, Second Section, 20 May 2014, final 13 October 2014, 3) Harakchiev and Tolumov v. Bulgaria, Fourth Section, 8 July 2014, final 8 October 2014, 4) Trabelsi v. Belgium, Fifth Section, 4 September 2014, final 16 February 2015, 5) Kaytan v. Turkey, Second Section, 15 September 2015, final 15 December 2015, 6) Murray v. the Netherlands, Grand Chamber, 26 April 2016, 7) T.P. and A.T. v. Hungary, Fourth Section, 4 October 2016, final 6 March 2017 and 8) Matiosaitis and Others v. Lithuania, Second Section, 23 May 2017. The non-violation of Article 3 was declared by the Court in Bodein v. France, Fifth Section, 13 November 2014, final 13 February 2015, and in Hutchinson v. the United Kingdom, Grand Chamber, 17 January 2017. In Čačko v. Slovakia, Third Section, 22 July 2014, final 15 December 2014, the Court did not examine the question regarding Article 3. In Khamtokhu e Aksenchik v. Russia, Grand Chamber, 24 January 2017, the issue involved only Article 14 of the Convention. Basically, the Court, including Murray of the Grand Chamber, unanimously decided all cases of violation. The only exceptions are T.P. and A.T., decided by six votes to one, and Vinter and Others v. the United Kingdom of the Grand Chamber, decided by sixteen votes to one. In Hutchinson, the non-violation, declared by the Fourth Section, 3 February 2015, was decided six votes to one, whereas the Grand Chamber declared the non-violation fourteen votes to three. The decision on Bodein was unanimous. We note that in France the conditional release is “only” subject to time- restrictions (30 years). In Harkins v. the United Kingdom, Grand Chamber, 10 July 2017 (decision), the Court, by a majority, declared compliance under article 3 inadmissible. (2) The importance of the Tyrer case is unanimously recognised. The case is constantly used by the Court, also in its most recent judgments (see Bouyid v. Belgium, Grand Chamber, 28 September 2015, § 87). (3) The applicant decided to withdraw the application but the Commission rejected the request of strike out. The Chamber, with regard to the subsequent request by the Government, confirmed the decision of the Commission. 1 “it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others”. The Court has established this considering that the primary function of Article 3 is to protect “a person’s dignity and physical integrity”. Therefore, a penalty or a treatment must never violate human dignity “whatever their deterrent effect may be” (§ 31) and we may determine whether or not an individual has been subject to inhumane or degrading penalties or treatments only if we view the matter in the individual’s own eyes. § 3. This point is extremely important in order to understand P.L.I. because it is a genus of penalty, which manifestly violates the moral liberty of a person that may be defined as a fundamental aspect of human dignity, which can never be earned thanks to merits or lost because of demerits(4). Indeed, as human beings, moral liberty belongs to each one of us. This is precisely why it cannot be violated, restricted or eliminated. Individuals may gain benefits if they choose to collaborate usefully with justice(5). This is the only possibility P.L.I. provides in order to obtain all alternative measures to detention(6) and other instruments which are useful for the detainees’ resocialisation (like allowing them to work outside prison walls). Even though individuals may gain benefits if they choose to collaborate with justice, the choice not to collaborate should not be sanctioned. Indeed, punishing individuals on the basis of their choice not to collaborate with justice, considering that choice is an expression of moral liberty, would be against Article 3. We must consider that the right to silence, which is recognised in the Court’s jurisprudence and in EU law (Directive (EU) 2016/343 of 9 March 2016), is a human right which cannot be restricted or limited. The right to silence should always be guaranteed, both during the trial before the sentence and in the subsequent executive phase. On the contrary, according to the Italian law, the choice of exercing one’s right to silence will cause grave consequences, such as the permanent exclusion from all alternative measures to detention thus creating a regime which never allows non-cooperating detainees condemned to P.L.I. to leave prison(7). The right to silence is a projection of moral liberty and is therefore inextricably linked to human dignity. It cannot exist one day and disappear the next one.

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