Exclusion from parole for life-sentenced prisoners who do not cooperate

Facts

The authors are 252 Italian nationals, who have been convicted and sentenced to life imprisonment for mafia-related offences. They challenge the application of a law that automatically excludes parole for those who are convicted for serious mafia or terrorism offences unless they cooperate in securing prosecutions of other alleged members of criminal organizations. The Italian Constitutional Court previously ruled that this regime does not infringe the Italian Constitution, and all applications filed by authors in order to access probation measures and challenge this absolute presumption have been rejected and/or declared inadmissible. Many of the authors had completed rehabilitation programmes and served over 26 years in prison. However, due to their refusal to cooperate, often due to fear of personal safety, they were deemed automatically ineligible for parole. The authors allege violations of articles 7 and 10 (1) and (3) of the Covenant, arguing that the automatic and irreversible exclusion from release based on non-cooperation amounted to inhuman treatment and undermined the rehabilitative purpose of incarceration.

Admissibility

The Committee discontinued the communications as to authors who had died, been released, benefited from alternative measures to detention, or expressed a wish to withdraw their communications. The communications were also inadmissible as to three authors who had not provided the date of their final judgment for life imprisonment, or had not been sentenced to life imprisonment. Additionally, the communications of 204 authors who received a final judgment by 21 March 2013 were inadmissible because they were submitted over five years from the exhaustion of domestic remedies. The Committee also found that the authors had failed to sufficiently substantiate article 7 claim on torture, inhuman and degrading treatment, which were therefore inadmissible.

The Committee noted that the challenged law links the possibility of parole to an individual’s decision to cooperate with the authorities, rather than on reformation and social rehabilitation. This precludes judges and tribunals from making an individual assessment as to whether the continuing detention of a prisoner is based on legitimate penological grounds. Therefore, the claim based on article 10 (1) and (3) of the Covenant for the remaining authors was admissible.

Merits

The Committee noted that, in the context of mafia-type structures, members are bound by a code of silence and individuals may choose not to cooperate due to a risk to life and safety. Therefore, cooperation is not necessarily a free personal choice. The challenged law linked the failure to cooperate to an irrebuttable presumption of dangerousness to society, and failed to consider other forms of rehabilitation progress. The Committee considered that the lack of possibility for judicial review, as well as the exclusion from parole in the absence of cooperation, upset the essential aim of the penitentiary system and ran contrary to article 10 (1) and (3) of the Covenant. The Committee concluded that the State party had violated the rights of the 26 remaining authors under article 10 (1) and (3) of the Covenant.

Recommendations

The State party should, inter alia:

• (a) provide the authors with an effective remedy;
• (b) make full reparation to individuals whose Covenant rights have been violated; and
• (c) take steps to prevent similar violations through an appropriate review mechanism in the future.

Implementation

Deadline for implementation: 24 May 2025