The Law of Relativity

In a legal system based on the principle of reserve of law and jurisdiction in criminal matters (Art. 13 of the Constitution), absolute legal presumptions should not exist: they are the symptom of a distorted system that places little trust in judges. The ultimate effect of every iuris et de iure presumption, and of the rigid regulatory automatism that follows, is in fact to debase the meaning of the reservation of jurisdiction, effectively relegating the prerogatives of the judiciary to mere notarial certification activities. There really is no need for such absolute presumptions.

Even more so in a particular sector of the legal system, the penitential one, where the re-educational purpose of the criminal sentence (Art. 27 of the Constitution) requires always reserving to the supervisory judiciary the evaluation of the progress made by the convicted person with a view to their progressive reintegration into society , because if it is true that prison is a punishment for deeds that should not have been carried out, it is equally true that the person is never completely wholly defined by the deed they make, whether good or bad.

If one agrees with these premises, the two rulings (Sentence 253/2019 and Order 97/2021) of the Constitutional Court which decreed the overcoming of the absolute presumption at the basis of the impediment mechanism prefigured by Art. 4 bis of the law on the penitentiary system (Law 354/1975) certainly marks an important milestone in the process aimed at bringing life imprisonment back under constitutional coverage.

In its original fort, as is known, Art. 4 bis of the penitentiary law provided for a large number of people convicted of "major crimes" (e.g. organized crime and other instances) the prohibition to have access to measures alternative to detention and other penitential benefits, which could be overcome exclusively by virtue of a qualified good conduct, such as collaborating with justice (in concrete terms: reporting other people's crimes) which, by virtue of absolute legal presumption, became the legal indicator of certain repentance.

The Court's criticisms, in both rulings, focused precisely on the (too) rigid regulatory equation "collaboration equals repentance": because collaboration is a procedural attitude, while repentance is an internal state; because the choice to collaborate can also be due to purely utilitarian evaluations and conversely, its opposite, silence, is not necessarily an indication of continuing social danger; because there is ultimately a difference between rewarding collaboration and sanctioning non-collaboration.

Let's be clear: the Council did not censor the choice to consider collaboration with justice as a condition for access to penitentiary benefits, but rather the option of considering it as a sine qua non, the alternative capable of excluding all the others. In other words: what is void is not the presumption in itself, but its absolute character.

Hence, in the name of the overarching need for institutional collaboration, the intimation addressed by the High Court to the legislator was to transform the presumption of social danger deriving from the choice not to collaborate from absolute to a relative one and, at the same time, identify the conditions that would allow the convict who decides to not cooperate to still be able to access penitential benefits. The Court's invitation, at least this time, did not go unheeded.

The legislator, also to avoid further issues of unconstitutionality, did not eschew responsibility and drafted a reform text (Legislative Decree 162/2022 converted with amendments into Law 199/2022) which, although going in the right direction, nevertheless raises additional doubts. It must immediately be said that in the "new" Art. 4 bis of the Italian Penitential Law on collaboration with justice, while remaining the main path, is no longer – and could not be otherwise – the exclusive condition for accessing penitentiary benefits. On paper, there is no doubt, the absolute presumption has been transformed into a relative presumption which, at least in the abstract, lends itself to being contradicted by contrary evidence. 

In the abstract, precisely. In practice, things are very different. In fact, in the absence of collaboration with prosecutors, the legislator has established rather stringent limits and conditions that are extremely difficult to demonstrate in order to have access to prison benefits: the convict is now asked to provide specific elements that exclude, not only the actuality of connections with organized crime, but also – mind you – the danger of their resumption in the future. A requirement, the latter, that seems to evoke shamanic predictive abilities: in fact, the convict is asked to demonstrate that in the future what already doesn't exist today will continue to be perpetuated. The burden of proof is diabolical to say the least, if not downright impossible: it is thus worth asking whether the law has really eliminated the absolute presumption of social danger for the non-cooperator or whether, in substance, behind the veil of appearances such presumption is still present.

Of course, much will depend on the concrete implementation of the reform, but the feeling is that Parliament proved incapable (or unwilling) to fully grasp the indications contained in the Constitutional Court rulings that were aimed at re-establishing the right to have hope, which, according to the European Convention on Human Rights, must be guaranteed to every prisoner.