Not releasing of a life sentenced prisoner consists of inhuman and degrading treatment. The sentenced person must always have the possibility of dismissing and granting a release


Marcello Viola v. Italy 13.06.2019 (n 2) (no. 77633/16)

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Revision of life sentence. Inhuman and degrading treatment.

The applicant has been sentenced to life imprisonment for serious offenses related to mafia criminal activities and murder, kidnapping, etc.

His continued requests for prison leave and release on licence were rejected on the grounds that he had not cooperated with the judicial authorities and had not engaged in critical reflection on his criminal past.

The ECHR held by majority that there was a violation of Article 3 (inhuman or degrading treatment) because his perspective for release on license was limited and his sentence remained irreducible due to his refusal to cooperate with the judicial authorities, despite the fact that even in the case of the imposition of a life sentence, it is possible to apply for release. The deprivation of the right for prisoners to fight for their freedom is incompatible with human dignity.


Article 3


The applicant, Mr Marcello Viola, is an Italian national who was born in 1959 and 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.

On 16 October 1995 the Palmi Assize Court sentenced Mr Viola to 15 years’ imprisonment for
membership of a Mafia-type criminal organisation in connection with events occurring between
1990 and 1992. The Assize Court of Appeal upheld his conviction but reduced the sentence to 12
years’ imprisonment. The applicant did not appeal on points of law. In September 1999 the Palmi
Assize Court sentenced Mr Viola to life imprisonment for separate offences linked to Mafia-type
criminal activities, and also found him guilty of murder, abduction, false imprisonment resulting in
the victim’s death and unlawful possession of firearms. An appeal on points of law by the applicant
was dismissed. On 12 December 2008 the Assize Court of Appeal reassessed the overall sentence as
one of life imprisonment with daytime isolation for two years and two months.

Between 2000 and 2006 the applicant was placed under a special prison regime (section 41 bis (2) of
Law no. 354 of 26 July 1975). In December 2005 the Ministry of Justice issued a decree ordering the
extension of the regime for a further year. In an order of 14 March 2006 the sentence supervision
court allowed an appeal by the applicant and discontinued the special regime.

The applicant subsequently applied for prison leave on two occasions. His first application was
rejected in July 2011 by the post-sentencing judge, who pointed out that the applicant remained
ineligible for prison leave as he was serving a sentence for membership of a Mafia-type criminal
organisation and had not cooperated with the judicial authorities. On 29 November 2011 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.


Article 3

The Court observed that the regime applicable to life imprisonment resulted from the combined
application of Article 22 of the Criminal Code and sections 4 bis and 58 ter of the Prison
Administration Act. Those provisions provided for differentiated treatment of prisoners, the effect of
which was to preclude release on licence and access to other reductions of sentence and
alternatives to custody for prisoners who did not satisfy the requirement to cooperate with the
judicial authorities. The forms which such cooperation could take were laid down in section 58 ter of
the Prison Administration Act: the convicted prisoner had to provide the authorities with decisive
information enabling them to prevent the consequences of the offence and assisting them in
establishing the facts and identifying the perpetrators of criminal offences. Convicted prisoners were
exempted from this requirement if cooperation could be considered impossible or unenforceable
and if they could prove that they had severed all links with the Mafia-type group.

In order to determine whether the life sentence was reducible, that is, whether it offered a prospect
of release and a possibility of review, the Court focused its attention on the only option available to Mr Viola in order to be eligible for and be granted release, namely to cooperate with the judicial authorities’ investigative and prosecution activities.

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. Hence, the Court noted that Mr Viola had decided not to cooperate with the judicial
authorities. 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 also observed that a situation could reasonably be imagined whereby a convicted prisoner
cooperated with the authorities without this signifying any rehabilitation on his or her part or a
genuine severing of contact with criminal circles. Regarding cooperation with the authorities as the
only possible indication that a prisoner had broken off contact with criminal circles and been
rehabilitated failed to take account of other indicators that could be used to assess his or her
progress. It could not be ruled out that the severing of ties with Mafia circles might be expressed in
ways other than cooperation with the judicial authorities.

The Court pointed out that the Italian prison system offered a range of progressive opportunities for
contact with society – such as outside work, release on licence, prison leave and a semi-custodial
regime – designed to ease the prisoner’s resocialisation. However, Mr Viola had not been granted
these opportunities despite the fact that the reports on his conduct in prison submitted in support of
his applications for release on licence had reported a positive change in his personality. Moreover,
Mr Viola pointed out that he had never had any disciplinary sanctions imposed on him since his
conviction and had built up entitlement to be released five years early; however, he had been
unable to take advantage of this owing to his refusal to cooperate.

In the Court’s view, a convicted prisoner’s personality did not remain unchanged from the time of
commission of the offence. It could evolve in the course of his or her sentence, as reflected in the
resocialisation process, which enabled individuals to review their criminal past critically and rebuild
their personality. In order to do that, convicted prisoners had to know what they needed to do in
order to be considered for release.

Lastly, 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. By continuing to equate a lack of cooperation with an irrebuttable presumption of
dangerousness to society, the rules in place effectively assessed the person’s dangerousness by
reference to the time when the offence had been committed, instead of taking account of the
reintegration process and any progress the person had made since being convicted. The
presumption of dangerousness also prevented the competent courts from examining applications
for release on licence and from ascertaining whether the person concerned had changed and made
progress towards rehabilitation, such that his or her detention was no longer justified.

The Court recognised the fact that the offences of which Mr Viola had been convicted concerned a
particularly dangerous phenomenon for society. However, efforts to tackle that scourge could not
justify derogating from the provisions of Article 3 of the Convention, which prohibited in absolute
terms inhuman or degrading treatment. Hence, the nature of the offences of which Mr Viola had
been accused was irrelevant for the purposes of examining his application under Article 3.

Moreover, the Court had previously found that the ultimate aim of resocialisation was to prevent
reoffending and protect society.

The Court stressed that it would be incompatible with human dignity – which lay at the very essence
of the Convention system – 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. Thus,
the Court considered that the life sentence 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 to an excessive degree. Accordingly, his sentence could not be regarded as
reducible for the purposes of Article 3 of the Convention.

The Court therefore concluded that the requirements of Article 3 had not been satisfied. However,
the finding of a violation could not be understood as offering the applicant the prospect of imminent

Article 46

The Contracting States enjoyed a wide margin of appreciation in deciding on the appropriate length
of prison sentences, and the mere 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.

Just satisfaction (Article 41)

The Court held that Italy was to pay the applicant 6,000 euros (EUR) in respect of costs and

Separate opinion

Judge Wojtyczek expressed a separate opinion which is annexed to the judgment(


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