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Italy: Requirement to Complete Two-Thirds of Sentence to Obtain Early Release for Certain Kidnapping Crimes Ruled Unconstitutional

(Dec. 16, 2019) On November 8, 2019, the Italian Constitutional Court declared unconstitutional a provision of Law No. 354 of July 26, 1975 (article 58-quater, paragraph 4) requiring that persons convicted of kidnapping for the purposes of robbery, extortion, terrorism, or subversion, during the perpetration of which the victim died, be ineligible for early release from prison until serving at least two-thirds of their sentence. (Decision No. 229 of November 8, 2019 (the Decision) (in Italian).)

Background of the Case

Article 630 of the Italian Penal Code relating to kidnapping for the purposes of robbery or extortion and article 289-bis of the Code relating to kidnapping for the purpose of terrorism or subversion require that offenders serve at least two-thirds of their sentence before they are eligible for early release if the victim died during the course of the crime. (Decision, considerations of fact § 1.)

The female offender in the case was sentenced to 24 years of imprisonment for her role in the kidnapping and later killing (by her accomplices) of an infant for extortion purposes. (Considerations of fact § 1.1.) At the time of her request, the woman had served 13 years, 1 month and 12 days of imprisonment. The judge in the case noted that, at the time of her conviction, the woman had argued her lack of participation in organized crime and the total impossibility of her having had an “active” collaboration with the underlying crimes, and that, under existing law, the woman’s request for early release would have to be denied because she had not served two-thirds of her sentence. Finally, the judge called attention to the fact that the woman had observed good conduct during her incarceration, including availing herself of treatment, engaging in “a critical review of her crime,” compensating the damage caused to the victim’s family, and maintaining a continuous relationship with her own family (in particular with her disabled son), as well as to the fact that she had no connection with organized crime. (Considerations of fact § 4.3.)

Constitutional Provisions Involved

The Constitutional Court performed its review in light of, among others, article 3 and article 27, third paragraph, of the Italian Constitution (English translation), which provide for the right of all citizens to equal social dignity and equality before the law, without distinction of sex, race, language, religion, political opinion, or personal or social conditions, and for the prohibition of inhuman punishments and the reeducation of the convicted.

Reasoning of the Court

The Court considered that article 58-quater, paragraph 4 of Law No. 354 expressly requires that the “convicted caused the death of the kidnapped.” (Considerations of law § 3.1, para. 2.) The Court mentioned its prior precedent contained in Decision No. 149 of 2018 in which it held that those who have been sentenced to life imprisonment for the same crimes as the offender in the present case have enjoyed better treatment than she has and, in fact, may obtain early release after 10 years of imprisonment. (Considerations of law § 4.2, paras. 1– 2.) The Court considered that the rigid imposition of a ban on early release unreasonably subverted the gradualist logic of the principle of “progressive treatment and punishment flexibility” as previously explained by the same Court in Decision Nos. 257 of 2006, 255 of 2006, 445 of 1997, and 504 of 1995, thus disregarding the constitutional mandate that the penalty must be also aimed at the reeducation of the offender. (Considerations of law § 4.1, para. 1.)

Such a situation, the Court concluded, is obviously incompatible with the principle of equality under the Constitution as explained by Decision No. 149 of 2018. (Considerations of law § 4.2, para. 3.) Consequently, the current requirement established by article 58-bis of Law No. 354 of 1975 of effective compliance with two-thirds of the penalty for the crimes of articles 630 and 289-bis of the Penal Code is constitutionally inapplicable, and instead the request of the convicted woman for early release must be decided by the pertinent courts according to the parameters applicable to the general prison population on equal terms. (Considerations of law § 4.3, para. 1.)