CCPR/C/142/D/3328/2019-3579/2019

GE.25-04571 (E) 290725 290725 Human Rights Committee Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communications No. 3328/2019 to No. 3579/2019*, **, *** Communications submitted by: Antonio Albanese and 251 other authors (for the complete list of authors, see annex I), represented by counsel, Andrea Saccucci Alleged victims: The authors State Party: Italy Date of communications: 21 March 2018 (initial submission) Document references: Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State Party on 2 April 2019 (not issued in document form) Date of adoption of Views: 24 October 2024 Subject matter: Access to parole for prisoners serving life sentences being conditional upon cooperation Procedural issues: Abuse of rights; exhaustion of domestic remedies Substantive issues: Cruel, inhuman and degrading treatment; essential aims of the penitentiary system Articles of the Covenant: 7 and 10 (1) and (3) Articles of the Optional Protocol: 3 and 5 (2) (b) 1.1 The authors are 252 male prisoners of Italian nationality serving life sentences.1 Their names and dates of birth are provided in annex I. They claim that the State Party has violated their rights under articles 7 and 10 (1) and (3) of the Covenant in view of the prison regime to which they are subjected in accordance with article 4 bis (1) of Penitentiary Act No. 354/1975, which rules out access to parole for all those convicted and sentenced for serious criminal offences concerning the mafia and/or terrorism unless they cooperate with

* Adopted by the Committee at its 142nd session (14 October–7 November 2024). ** The following members of the Committee participated in the examination of the communications: Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders, Mahjoub El Haiba, Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly Ndiaye, José Manuel Santos Pais, Soh Changrok, Tijana Šurlan, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu. *** Individual opinions by Committee members Carlos Gómez Martínez and Hélène Tigroudja (partially dissenting) are annexed to the present Views. 1 According to their counsel, the 252 authors represent roughly one quarter of all prisoners serving life sentences in Italy. United Nations CCPR/C/142/D/3328/2019-3579/2019 International Covenant on Civil and Political Rights Distr.: General 13 June 2025 Original: English CCPR/C/142/D/3328/2019-3579/2019 2 GE.25-04571 the authorities in securing prosecutions of other alleged members of criminal organizations. The Optional Protocol entered into force for the State Party on 15 December 1978. The authors are all represented by the same counsel. 1.2 On 24 October 2024, pursuant to rule 97 (3) of the Committee’s rules of procedure, the Committee decided to join the present communications for a joint decision, in view of their substantial factual and legal similarity. Facts as submitted by the authors 2.1 The authors were all convicted and sentenced to life imprisonment for mafia-related offences between 1977 and 2014.2 Given the seriousness of their offences, the sentences of life imprisonment that they are serving fall under a restrictive regime3 that was introduced in the wake of the mafia bombings and killings of 1992. The specific conditions of this harsh penitentiary regime are set forth in article 4 bis (1) of the Penitentiary Act. After mentioning a series of crimes ranging from aiding the mafia to trafficking in persons and drug trafficking, that provision establishes that those sentenced to imprisonment for one of those crimes are not eligible for parole or any other probation measure4 – excluding early release – unless they cooperate with the investigative or judicial authorities pursuant to article 58 ter of the Penitentiary Act. 2.2 The only way to challenge the operation of the absolute and non-rebuttable presumption contained in article 4 bis would be to file a request for probation measures and ask the judge to refer to the Constitutional Court a question concerning the constitutionality of that article. However, the European Court of Human Rights has already ruled that such an application cannot be a remedy that would need to be exhausted as required under the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).5 With several judgments issued between 1993 and 2014, the Constitutional Court has consistently ruled that the restrictive penitentiary regime applied to the authors does not infringe the Italian Constitution. Notably, in reaching this conclusion, the Constitutional Court indicated that the prohibition of accessing parole provided for by article 4 bis does not stem directly from the law, but is the consequence of prisoners’ choice not to cooperate, while having the chance to do so; thus, the law does not exclude the granting of parole in absolute terms, because detainees have the possibility of changing their mind and cooperating.6 2.3 As a consequence of this well-established constitutional case law, neither lower courts nor the Court of Cassation refer questions of constitutionality of article 4 bis of the Penitentiary Act to the Constitutional Court anymore. Rather, they declare them manifestly ill-founded, without exception. As such, these decisions confirm the “futile” nature of any further legal action that may be taken by the authors to seek redress at the domestic level. 2.4 This is also the outcome of all the applications filed by some of the authors in order to access probation measures and challenge the operation of the absolute presumption in article 4 bis of the Penitentiary Act:7 all the requests have been rejected and/or declared inadmissible. For this reason, as in the case of G. v. Australia,8 the authors consider that the Committee should relieve them from the obligation to exhaust domestic remedies that are “futile” or otherwise “ineffective”. 2 They provide certificates of detention that mention the date of the arrest and the penalty imposed (i.e. life imprisonment) for one or more of the following offences: mafia association, conspiracy aimed at drug trafficking, kidnapping, first-degree murder and extortion. 3 The specific conditions of life imprisonment are set out in article 22 of the Criminal Code, with article 4 bis of the Penitentiary Act establishing a special regime of life imprisonment without parole. 4 Assignment to work outside, bonus permits allowing for time away from prison and alternative measures to detention. 5 Parrillo v. Italy, Application No. 46470/11, Judgment, 27 August 2015, para. 101. 6 Case No. 135, Judgment, 24 April 2003, para. 4. 7 Of 241 authors, 159 stated that they had requested special leave. All the requests had been rejected. The reason given to 53 of them was the prohibition contained in article 4 bis of the Penitentiary Act. 8 CCPR/C/119/D/2172/2012, para. 6.9. CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 3 2.5 For example, when one of the authors – Claudio Conte (communication No. 3393/2019) – appealed the decision rejecting his request for special leave, the Catanzaro Court for the Enforcement of Sentences acknowledged that Mr. Conte had served 27 years of continuing detention, that there was evidence that he had ceased his bonds with organized crime and that “he had undertaken a pluriannual path of critical revision of his criminal past”. Despite considering that Mr. Conte was certainly “a new man”, the Tribunal ruled that his request must be rejected and prompted the legislature to “loosen the unbearable grip of article 4 bis”.9 Multiple requests for special leave introduced by 159 authors, including Giousè Chindamo (communication No. 3388/2019), Salvatore Biondo (communication No. 3353/2019) and Antonino Alcamo (communication No. 3330/2019), were rejected solely on the basis of their lack of cooperation. 2.6 The authors are involved in rehabilitation programmes and 109 of them have already completed such programmes. Some have also obtained satisfactory results. If the authors were not subject to the restrictive penitentiary regime, they would technically qualify for release on parole under article 176 of the Criminal Code, having been detained for 26 consecutive years or more. In principle, the authors have also been granted between five and eight years of early release under article 54 of the Penitentiary Act.10 However, none of them will ever be afforded the prospect of release unless they cooperate with the authorities. 2.7 The authors indicate that many of them also suffer from serious health conditions related to the heart, blood circulation, eyes and hearing, as well as diabetes, hernia, prostate issues, gastritis and arthritis. For example, Carmine Gerace (communication No. 3450/2019) has been in a wheelchair since his arrest in 1971 and the full-time assistance he needs is provided by his inmates. Gaetano Sades (communication No. 3543/2019) suffers from hepatitis C and epilepsy and has been recognized as having a disability. Complaint 3.1 The authors consider that the main question in their cases is whether cooperation with authorities amounts to a fair prospect of release, which makes life imprisonment compliant with international human rights instruments. They explain that, when coupled with life imprisonment, article 4 bis (1) of the Penitentiary Act breaches their right to rehabilitation in making access to parole conditional upon cooperation, rather than upon penological grounds.11 The Act sets an absolute and non-rebuttable presumption of equivalence between repentance and cooperation.12 This prison regime goes against human dignity. The authors’ certificates of detention prove that each of them is personally and individually affected by the application of the legislative provision complained of and, consequently, that the rights of each of them under articles 7 and 10 (1) and (3) of the Covenant have been violated. 3.2 When applied to prisoners serving life sentences, the presumption contained in article 4 bis of the Penitentiary Act makes cooperation the only possible means of being afforded early release from a whole-life sentence. Nevertheless, however it is labelled, cooperation cannot be deemed as amounting to a fair prospect of release, which is the only condition that makes life imprisonment compliant with international human rights instruments. On the contrary, the choice between cooperation and continuing detention constitutes a subtle form of psychological torture and inhuman and degrading treatment. 3.3 The authors recall that the Committee has already held that “no penitentiary system should be only retributory”, but should, rather, “essentially seek the reformation and social rehabilitation of the prisoner”.13 States have a positive obligation to avail prisoners of a whole 9 Judgment, 5 December 2013. 10 Of 196 authors who provided information in this sense, 53 declared that they had been granted five years of early release, 27 had been granted six years, 4 had been granted seven years and 4 had been granted eight years. 11 The overwhelming majority of Italian scholars consider article 4 bis of the Penitentiary Act to be unconstitutional – the authors cite several sources in that sense. However, the Parliament has never amended it. 12 The authors claim that there is a strict exception of “impossible cooperation” accepted by the Constitutional Court, but do not give further details. 13 Blessington and Elliot v. Australia (CCPR/C/112/D/1968/2010), para. 7.8. CCPR/C/142/D/3328/2019-3579/2019 4 GE.25-04571 host of measures with a view to their rehabilitation, including “teaching, education and re-education, vocational guidance and training”, in addition to “work programmes for prisoners inside the penitentiary establishment as well as outside”. 14 Therefore, the Committee generally finds a violation of articles 7 and 10 when no recreational or educational policies or programmes in or outside of the prison are available to prisoners serving life sentences.15 3.4 The authors note that the European Court of Human Rights has also ruled, in its landmark case Vinter and others v. the United Kingdom, that “in the context of a life sentence, article 3 [of the European Convention for Human Rights] must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life of the prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds”.16 The authors do not have access to such a review. In the absence of cooperation, their recreational and work or study programmes cannot possibly lead to release. In the case of Fardon v. Australia, the Committee made a specific reference to article 10 (3) of the Covenant to consider that the State should have demonstrated that the author’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment.17 3.5 The authors point to the consequences of the preclusion contained in article 4 bis of the Penitentiary Act on their physical and psychological health. Many of them suffer from health conditions that are not compatible with life imprisonment, let alone a form of life imprisonment that rules out early release or any other form of parole. 3.6 The authors do not have at their disposal any domestic remedy satisfying the conditions of article 2 (3) of the Covenant. The violation of their rights guaranteed by articles 7 and 10 (1) and (3) of the Covenant stems directly from – and is an automatic consequence of – article 4 bis (1) of the Penitentiary Act. This provision deprives the penitentiary regime of any rehabilitative aim by making parole conditional upon cooperation, rather than reformation and social rehabilitation. In this sense, the authors point out to the unsuccessful attempts of some of them to challenge the absolute and non-rebuttable presumption contained in article 4 bis and to the settled case law of the Court of Cassation and the Constitutional Court. 3.7 Against this background, the authors do not claim that they did in fact exhaust domestic remedies or are exempted from exhausting a specific remedy. Rather, they claim that there is no remedy in the Italian legal system that would allow them to effectively claim their rights before a competent domestic authority as required under article 2 of the Covenant. The information concerning the unsuccessful attempts of some of the authors to challenge the absolute and non-rebuttable presumption contained in article 4 bis (1) of the Penitentiary Act at the domestic level is merely intended to reinforce their contention that there are no effective domestic remedies. This conclusion is confirmed by the settled case law of the Court of Cassation and the Constitutional Court. Domestic courts are bound by the law and enjoy no discretion in the application of article 4 bis. As a consequence, courts are unable to address the violation complained of by the authors. This is the reason why the authors bring this injustice directly before the Committee. 3.8 Regarding the delay in bringing their case before the Committee – given that some of the authors were aware of the automatic application of article 4 bis of the Penitentiary Act as early as 1993 – they submit that the principle laid down in rule 99 (c) of the Committee’s rules of procedure does not apply to the case at hand because the authors complain of the continuing violation of their rights under articles 7 and 10 (1) and (3) of the Covenant, which is still ongoing and in respect of which the authors have no effective remedy at their disposal. The authors do not challenge their conviction and sentence, but complain of a violation of their rights under the Covenant as a result of the continuing application to them of the special 14 General comment No. 21 (1992), para. 11. 15 For example, Quliyev v. Azerbaijan (CCPR/C/112/D/1972/2010 and CCPR/C/112/D/1972/2010/Corr.1), para. 9.2. 16 Applications No. 66069/09, No. 130/10 and No. 3896/10, Judgment, 9 July 2013, para. 119. 17 CCPR/C/98/D/1629/2007, para. 7.4. CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 5 penitentiary regime provided for by article 4 bis (1). Thus, the violation of which they complain is a continuing violation stemming from the application and implementation of legislation that is incompatible with the State Party’s international obligations. 3.9 Since article 4 bis of the Penitentiary Act is still in force in the Italian legal system, the violation continues to date. It follows that the authors’ right to petition the Committee under article 2 of the Optional Protocol is not subject to any time limit. In a number of cases, the Committee itself has recognized that the authors complained of a “continuing violation of human rights” and has, consequently, relieved them from the requirements of admissibility ratione temporis.18 The same approach was followed in Blessington and Elliot v. Australia. The authors in that case had been convicted and sentenced to life imprisonment in 1990, but submitted their communication in 2010 to complain of the penitentiary regime imposed on them. The Committee deemed the application admissible and found a violation of articles 7, 10 (3) and 24 of the Covenant. 3.10 The authors argue that a similar conclusion has been reached by the European Court of Human Rights when dealing with applications concerning the lack of fair prospect of release in the context of life imprisonment.19 In none of those cases did the European Court or the Committee declared the case inadmissible ratione temporis, notwithstanding the fact that the sentence of life imprisonment had been imposed many years before the submission of the complaints. More importantly, in none of those cases did the respondent Government argue that the complaint was inadmissible on grounds of delay in submission.20 State Party’s observations on admissibility and the merits 4.1 On 1 October 2019, the State Party provided its observations on admissibility and the merits. It first clarified some errors as to the spelling of some authors’ names, dates of birth and the prison in which they were held. It also noted that Pellegrino Cataldo (communication No. 3383/2019) had been released from prison; Salvatore De Santo (communication No. 3410/2019), Stefano Ganci (communication No. 3445/2019) and Pasquale Mazzocchi (communication No. 3487/2019) had died; Gaetano Fiandaca (communication No. 3435/2019) was under a work-release regime; and Carmine Gerace (communication No. 3450/2019), Salvatore Nicastro (communication No. 3499/2019) and Aurelio Quattroluni (communication No. 3529/2019) were in home detention. 4.2 The State Party submits that any convicted person serving a life imprisonment for the very serious crimes set forth in article 4 bis (1) of the Penitentiary Act (life imprisonment without parole) has the legal means to apply for a conditional release by submitting to the judge for the enforcement of sentences the results of his or her actual rehabilitation and cooperation with the justice system, the latter being deemed by the law as having undeniable value as an indicator of full dissociation from the criminal environment to which the convicted person used to belong. The State Party explains that the Constitutional Court – on many occasions – has found the possible reduction of a life sentence to be a concrete prospect for a person with a life sentence either by excluding from limitations to penitentiary benefits cases in which cooperation was impossible or irrelevant or by dismissing the assumption that the current discipline of life imprisonment without parole resulted in an automatic impediment to penitentiary benefits, and rather considering it as a deliberate choice of the convicted person. 4.3 On the merits, the State Party submits that the mafia association is characterized by the particular strength of the bond among the members and their common aim to guarantee the life of the group and its ever-increasing success. It follows that the main and genuine indicator of an actual dissociation from mafia membership and its underlying criminal values is cooperation with justice. As noted by the Constitutional Court,21 it is a deliberate choice of 18 See Millis v. Algeria (CCPR/C/122/D/2398/2014), para. 7.4, and cases cited therein, regarding the continuing nature of the violations entailed by enforced disappearance. 19 See, for example, Vinter and others v. the United Kingdom; Murray v. the Netherlands, Application No. 10511/10, Judgment, 26 April 2016; and Petukhov v. Ukraine (No. 2), Application No. 41216/13, Judgment, 12 March 2019. 20 Blessington and Elliot v. Australia, para. 6.3. 21 No reference provided. CCPR/C/142/D/3328/2019-3579/2019 6 GE.25-04571 an applicant to demonstrate effective and actual rehabilitation and dissociation from the very criminal context to which he or she belonged. Given the nature and seriousness of the crimes concerned, endorsed by affinity to the association through the subjection, silence and fidelity of its members, the State Party considers that its law legitimately – under the Constitution – requires a tangible demonstration of the completion of the rehabilitation course and dissociation from the criminal values at the basis of the offences committed through an effective cooperation aimed at the disintegration of that context and the re-establishment of legality. The legislative choice to consider cooperation as the main evidence of rehabilitation is strictly connected to the nature and seriousness of the crimes committed. 4.4 The State Party points out that persons sentenced to life imprisonment can still benefit, under article 4 bis of the Penitentiary Act, from other favourable measures, such as early release and emergency leave permits in case of imminent risk to their relatives’ life or in case of very serious and urgent family events. Moreover, it is always possible under the law to postpone the execution of a sentence for serious physical infirmity22 or mental illness,23 which – for the State Party – makes the system compliant with the Covenant even in cases of life sentences being served for crimes in accordance with article 4 bis. 4.5 The State Party notes that, in accordance with the legislation in force, penitentiary benefits could be granted even when cooperation with the judiciary is impossible or irrelevant

– impossible because the facts and related responsibility have already been clarified or irrelevant because the marginal position of the convicted person within the association does not allow him or her to have any knowledge of facts or participants holding a superior position in the criminal organization. The State Party refers to several domestic decisions – in which the possibility or the usefulness of cooperation was examined – to explain that the concrete application of article 4 bis of the Penitentiary Act is based on in-depth judicial assessment, on a case-by-case basis and unrelated to any automatism, with regard to the existence of the conditions for granting penitentiary benefits, even in the absence of collaboration, to a person convicted of one of the crimes indicated in the law. 4.6 Specifically, the Italian courts have deemed that cooperation was not useful when the convicted person played a marginal role within the mafia association24 or when the mafia association had disintegrated.25 Also significant is a decision of the Court of Naples, which assessed as objectively impossible the collaboration of an affiliate who, despite his important role in the association, had played his role exclusively outside of Italy and would have knowledge only of activities abroad. 26 Moreover, courts have found irrelevant the cooperation of a person sentenced to life imprisonment for mafia crimes associated with the mafia organization called Stidda, established in the 1980s following the fragmentation of the large mafia group called Cosa Nostra, owing to the fact that, after such a long time, the former Stidda had been completely replaced by different members and the former associates of the person in question had all been detained or had collaborated with the justice system.27 In another case, cooperation was not required from a mafia associate given the long time spent in detention, the full ascertainment of the facts during the trial and the lack of connections with the clan.28 Lastly, the Supervisory Court of Aquila granted penitentiary benefits to persons sentenced to life imprisonment for mafia crimes when options aside from cooperation were available.29 22 Criminal Code, art. 147. 23 Ibid., art. 148. 24 Catanzaro Court for the Enforcement of Sentences, Order No. 771/17, 25 July 2017; and Catanzaro Court for the Enforcement of Sentences, Order No. 1316/16, 17 November 2016. 25 Court of Naples, Order No. 3241/15, 9 November 2016; and Milan Court for the Enforcement of Sentences, Order No. 3064/17, 7 February 2018. 26 He had been in Colombia and there was no proof that he knew anything about activities other than those related to his activities in South America (see Court of Naples, Order, 20 June 2002). 27 Court of Naples, Order No. 15/237, 23 January 2015; and Court of Naples, Order No. 16/4590, 9 November 2016. 28 Court of Naples, Order No. 6772/15, 20 December 2017. 29 Aquila Court for the Enforcement of Sentences, Order No. 913/2017, 7 May 2017; and Aquila Court for the Enforcement of Sentences, Order No. 1145/2015, 9 July 2015. CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 7 4.7 The State Party also refers to a decision of the Court of Cassation in which it pointed out the burden on the applicant of providing the elements that would establish the fact that his cooperation with the authorities was either impossible or irrelevant and in which it indicated the judge’s responsibility to consider all the elements in order to ascertain, in practice, whether the obligation of cooperation existed or not.30 The judge therefore has an obligation to examine the original facts set out in the judgment in the case and the elements produced by an applicant in order to determine whether cooperation with the justice system would be useful or impossible or irrelevant because the facts and the related responsibility have already been clarified or because the person in question held only a marginal position within the criminal association. 4.8 As to the prospect of a person sentenced to life imprisonment under the regime of article 4 bis of the Penitentiary Act engaging in rehabilitation activities with a view to possible early release, the State Party considers that the system complies with the Covenant. The particular seriousness of crimes for which a life sentence may be imposed justifies the granting of penitentiary benefits, such as conditional release, only to those who have irrefutably demonstrated that they have ceased any relation with their criminal past. 4.9 The State Party makes reference to a recent ruling by the European Court of Human Rights31 and points out that, in that judgment, the Court stressed that article 3 of the European Convention on Human Rights required a prospect of release but not a right to be released if the prisoner was deemed at the close of the review to still be a danger to society.32 Authors’ comments on the State Party’s observations on admissibility and the merits 5.1 In their comments of 17 December 2019, the authors contest the State Party’s observations. As regards the State Party’s argument that some of the authors may have access to probation measures following an assessment of the “impossible” and/or “irrelevant” nature of their cooperation, the authors claim that such an allegation needs to be assessed in the light of relevant information, the collection of which is particularly laborious; hence, they reserve the right to respond in full to the State Party’s remarks in this respect as soon as such information is available. 5.2 On the merits, the authors note that the State Party’s observations are generalizations instead of specific responses to their claims under articles 7 and 10 (1) and (3) of the Covenant. They recall that, following a judgment by the Constitutional Court on 21 September 1983, prisoners serving life sentences benefit from the “indirect effect” of early release. This means that, under article 54 of the Penitentiary Act, a prisoner serving a life sentence who has given proof of participating in rehabilitation programmes can gain a reduction in the period of time of 26 years, which is established as the minimum time to be served by a prisoner serving a life sentence before qualifying for conditional release under article 176 of the Criminal Code. However, under article 4 bis of the Penitentiary Act, for the authors and all prisoners serving under the regime of life imprisonment without parole, conditional release under article 176 of the Criminal Code is subject to cooperation with the authorities under article 58 ter of the Penitentiary Act – irrespective of the minimum period of time served or of participation in the rehabilitation programmes. Against this background, it cannot be concluded that the authors’ access to early release – or to leave permits under article 30 of the Penitentiary Act

– bears any relevance in the present case. 5.3 As to the domestic case law referred to by the State Party to illustrate cases in which cooperation was deemed to be impossible or irrelevant, the authors consider that it actually shows that, for all other prisoners whose cooperation is not legally impossible or irrelevant, but merely costly for personal, family or other reasons – such as in the authors’ case – access to parole in the absence of cooperation remains an illusion. In that connection, the authors refer to the case of Marcello Viola v. Italy, in which the European Court of Human Rights dismissed the argument of the Government of Italy that article 4 bis did not rule out a prospect of release, since the choice to cooperate rested with the prisoner. Quite the contrary: the 30 No. 29217, 6 June 2013. 31 Marcello Viola v. Italy (No. 2), Application No. 77633/16, Judgment, 13 June 2019. 32 The State Party claims that this quote is from a European Court of Human Rights factsheet on life imprisonment dated July 2019. CCPR/C/142/D/3328/2019-3579/2019 8 GE.25-04571 European Court doubted the freedom of that choice and the appropriateness of establishing an equivalence between the failure to cooperate and the social dangerousness of the offender, and concluded that failure to cooperate could not always be linked to a free and voluntary choice, nor could it be solely justified by persistent adherence to “criminal values” and the maintenance of links to a criminal organization.33 5.4 Against this background, the European Court concluded that the absolute and non-rebuttable presumption contained in article 4 bis of the Penitentiary Act de facto prevented the competent court from examining the application for conditional release and determining whether, during the course of a sentence, the applicant had developed and made progress towards reform to such an extent that continued detention was no longer justified on penological grounds. 34 The same can be said of a judgment in which the Italian Constitutional Court 35 found that article 4 bis of the Penitentiary Act contravened the principle that penalties must tend to the rehabilitation of the prisoners (codified in article 27 (3) of the Constitution) in that it rules out the possibility of accessing special leave under article 30 of the Penitentiary Act in the absence of the cooperation required by article 58 ter of the Penitentiary Act. 5.5 According to the authors, the Constitutional Court criticized the mechanism introduced by article 4 bis because it represented a trade between information useful to the investigative authorities and the possibility, for the prisoner, to access the ordinary path toward rehabilitation. It thus found article 4 bis of the Penitentiary Act to be: (a) unreasonable, to the extent that it made a sentence of imprisonment more or less serious based on the prisoners’ willingness to cooperate; (b) disproportionate, as it disconnected the actual duration of a prison sentence from the seriousness of the charge on which the prisoner had been found guilty; and (c) contrary to the principle of rehabilitation, since it infringed upon the right to remain silent. It concluded that, as a result of the automatic character of article 4 bis, judges and courts for the enforcement of sentences were precluded from making an individual assessment on whether, in a given case, continuing detention of a prisoner was called for on legitimate penological grounds.36 5.6 However, the authors specify that the none of them will directly benefit from the Constitutional Court judgment because that case did not concern life imprisonment without parole, but merely the provision of article 4 bis – as applied to any prisoner, and not only to prisoners serving life sentences – and its compatibility with article 27 (3) of the Constitution as far as a request for special leave under article 30 of the Penitentiary Act was concerned. In the words of the Constitutional Court, “the questions of constitutionality raised do not concern […] the so-called ergastolo ostativo [life imprisonment without parole], whose compatibility with the European Convention on Human Rights has recently been assessed by the European Court of Human Rights in the case […] of Marcello Viola v. Italy”.37 State Party’s additional observations 6. On 19 June 2020, the State Party provided further updates as to the place in which some of the authors were detained. It also informed the Committee that Giuseppe Barbagallo (communication No. 3347/2019), Gianfranco Bruni (communication No. 3363/2019) and Pellegrino Cataldo (communication No. 3383/2019) had been released; Gaetano Fiandaca (communication No. 3435/2019), who had been under a work-release regime, “has been at home”; 38 Carmine Gerace (communication No. 3450/2019) and Aurelio Quattroluni (communication No. 3529/2019) had been in home detention, but were subsequently returned to prison; and Nicola Solazzo (communication No. 3555/2019), who had been in home detention, had died. On 5 November 2024, the State Party informed the Committee that Giuseppe Garofalo (communication No. 3447/2019) had been released and that Amedeo 33 Marcello Viola v. Italy (No. 2), paras. 116 and 118. 34 Ibid., para. 129. 35 Judgment No. 253, 23 October 2019. 36 Ibid., paras. 8.1 and 8.2. 37 Ibid., para. 5.2. 38 No further details were provided. CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 9 Genovese (communication No. 3448/2019), Filippo Gerace (communication No. 3449/2019) and Mario Serpa (communication No. 3552/2019) had died. Authors’ additional observations 7. On 29 April 2023, the authors informed the Committee that Aurelio Cavallo (communication No. 3384/2019) and Claudio Conte (communication No. 3393/2019) wished to withdraw their communications.39 On 2 October 2024, the authors informed the Committee that Giuseppe Di Benedetto (communication No. 3413/2019) and Francesco Di Dio (3415/2019) had died. They also mentioned that Francesco Borrata (communication No. 3358/2019) had not been sentenced to life imprisonment. Issues and proceedings before the Committee Consideration of admissibility 8.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether it is admissible under the Optional Protocol. 8.2 As required under article 5 (2) (a) of the Optional Protocol, the Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement. 8.3 The Committee notes the information provided by the State Party that Salvatore De Santo (communication No. 3410/2019), Stefano Ganci (communication No. 3445/2019), Amedeo Genovese (communication No. 3448/2019), Filippo Gerace (communication No. 3449/2019), Pasquale Mazzocchi (communication No. 3487/2019), Mario Serpa (communication No. 3552/2019) and Nicola Sollazzo (communication No. 3555/2019) have died; Giuseppe Barbagallo (communication No. 3347/2019), Gianfranco Bruni (communication No. 3363/2019), Pellegrino Cataldo (communication No. 3383/2019) and Giuseppe Garofalo (communication No. 3447/2019) have been released; and Gaetano Fiandaca (communication No. 3435/2019), Carmine Gerace (communication No. 3450/2019), Salvatore Nicastro (communication No. 3499/2019) and Aurelio Quattroluni (communication No. 3529/2019) have benefited from alternative measures to detention such as work-release regimes and home detention (although Carmine Gerace (communication No. 3450/2019) and Aurelio Quattroluni (communication No. 3529/2019) were subsequently returned to prison). The authors have not commented on this information. The Committee also notes that, according to the information provided by the authors, Giuseppe Di Benedetto (communication No. 3413/2019) and Francesco Di Dio (communication No. 3415/2019) have passed away. Therefore, the Committee considers that the communications relating to Giuseppe Barbagallo (communication No. 3347/2019), Gianfranco Bruni (communication No. 3363/2019), Pellegrino Cataldo (communication No. 3383/2019), Salvatore De Santo (communication No. 3410/2019), Giuseppe Di Benedetto (communication No. 3413/2019), Francesco Di Dio (communication No. 3415/2019), Gaetano Fiandaca (communication No. 3435/2019), Stefano Ganci (communication No. 3445/2019), Giuseppe Garofalo (communication No. 3447/2019), Amedeo Genovese (communication No. 3448/2019), Filippo Gerace (communication No. 3449/2019), Carmine Gerace (communication No. 3450/2019), Pasquale Mazzocchi (communication No. 3487/2019), Salvatore Nicastro (communication No. 3499/2019), Aurelio Quattroluni (communication No. 3529/2019) and Nicola Solazzo (communication No. 3555/2019) have become moot and that their consideration should be discontinued. The Committee also discontinues the communications relating to Aurelio Cavallo (communication No. 3384/2019) and Claudio Conte (communication No. 3393/2019), who expressed their wish to withdraw their communications. 8.4 The Committee notes the authors’ declaration regarding the delay in bringing their case before the Committee. While they were given life sentences between 1977 and 2014 and some of them were aware of the automatic application of article 4 bis as early as 1993, they 39 No further details were provided. CCPR/C/142/D/3328/2019-3579/2019 10 GE.25-04571 consider that the principle laid down in rule 99 (c) of the Committee’s rules of procedure, which states that a communication may constitute an abuse of the right of submission when it is submitted after five years from the exhaustion of domestic remedies, does not apply to them because they do not challenge their conviction, but complain of the continuing violation of their rights under the Covenant, which is still ongoing and in respect of which they have no effective remedy at their disposal. The authors explain that, since 1993, the Constitutional Court has consistently ruled that the penitentiary regime raised by the authors does not infringe the Italian Constitution. They also argue that there is no remedy in the Italian legal system that would allow them to effectively claim their rights before a competent domestic authority as required by article 2 of the Covenant. 8.5 The Committee considers that the five-year delay provided by rule 99 (c) should be calculated from the moment that the authors became aware of the fact that they did not have at their disposal a remedy to complain about the effects of the regime implemented by article 4 bis (1) of the Penitentiary Act. The Committee considers that the authors did not provide a convincing explanation of the significant delay in submitting their complaints to the Committee since they should have been aware of the prospect of release, or lack thereof, since the moment they received their final judgment. Therefore, the Committee considers that the communications fall under the provisions of rule 99 (c) of its rules of procedure. The Committee thus declares the communication inadmissible under article 3 of the Optional Protocol and under rule 99 (c) of the Committee’s rules of procedure in respect of the 204 authors who received a final judgment before 21 March 2013. 8.6 In this connection, the Committee notes that Giuseppe Garofalo (communication No. 3447/2019), Leonardo Greco (communication No. 3456/2019), Luigi Maesano (communication No. 3475/2019) and Sergio Palumbo (communication No. 3507/2019) have not provided the date of the final judgment in which they were sentenced to life imprisonment. It also notes that Francesco Borrata (communication No. 3358/2019) was not sentenced to life imprisonment and failed to explain how the regime implemented by article 4 bis (1) of the Penitentiary Act affected him. The Committee therefore finds that these authors have failed to substantiate their claims for the purpose of admissibility and consequently declares their communications inadmissible, pursuant to article 2 of the Optional Protocol. 8.7 The Committee notes the authors’ allegation under article 7 of the Covenant that cooperation remains the only alternative to serving a whole-life sentence, which constitutes a form of psychological torture, inhuman and degrading treatment. The Committee notes, on the one hand, that the authors do not explain – with express reference to article 7 – how the substantive aspect of that article was violated in their case. On the other hand, as far as the procedural aspect of article 7 is concerned, the Committee notes the State Party’s explanation

– supported by several examples of domestic jurisprudence – that any person serving a life imprisonment for the very serious crimes set forth in article 4 bis (1) of the Penitentiary Act can apply for conditional release to a judge for the enforcement of sentences and argue the impossibility or irrelevance of cooperation with the justice.40 The Committee therefore notes that the authors still have avenues to request conditional release. It thus considers that the authors have also failed to substantiate the procedural aspect of their claim under article 7 of an alleged absolute and permanent prohibition of access to parole or other probation measures (see para. 5.1 above). Consequently, the Committee considers that the claims under article 7 of the Covenant have not been sufficiently substantiated and are therefore inadmissible under article 2 of the Optional Protocol. 8.8 The Committee also notes that the option invoked by the State Party as a way of overcoming the restrictive effects of article 4 bis remains directly linked to an individual’s decision to cooperate with the authorities rather than on the reformation and social rehabilitation of the prisoner, as provided under article 10 (3) of the Covenant. In that sense, the Committee notes that, in 2019, the Italian Constitutional Court concluded that, as a result of the automatic character of article 4 bis, judges and courts for the enforcement of sentences were precluded from making an individual assessment on whether, in a given case, the continuing detention of a prisoner was called for on legitimate penological grounds (see 40 See the jurisprudence of the Court of Cassation, cited by the European Court of Human Rights in Marcello Viola v. Italy (No. 2), paras. 45 and 46. CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 11 para. 5.5 above). Therefore, the Committee considers that it is not precluded by article 5 (2) (b) of the Optional Protocol from examining the claim under article 10 (1) and (3) of the Covenant. 8.9 The Committee therefore finds that the claim based on article 10 (1) and (3) of the Covenant for the remaining authors has been sufficiently substantiated for the purposes of admissibility. Accordingly, the Committee declares the claim admissible and proceeds with its consideration of the merits. Consideration of the merits 9.1 The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 5 (1) of the Optional Protocol. 9.2 The Committee notes that the issue in the present case is the compatibility with the State Party’s obligations under article 10 (1) and (3) of the Covenant of the regime put in place pursuant to article 4 bis (1) of the Penitentiary Act to exclude from parole or other probation measures the authors, who have been sentenced to life imprisonment for some serious crimes, unless they cooperate with the investigative or judicial authorities. 9.3 The Committee recalls its general comment No. 21 (1992) in which it declared that no penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner.41 It also recalls that rehabilitation of prisoners must be understood as emphasizing not their exclusion from the community, but their continuing part in it.42 Therefore, prisoners sentenced to life imprisonment are entitled to know what steps they can take in order to be considered for rehabilitation and release.43 9.4 The Committee considers that the imposition of life sentences on the authors can only be compatible with article 10 (1) and (3) of the Covenant if there is a possibility of review and a prospect of release, notwithstanding the gravity of the crime they committed and the circumstances around it. As it has already clarified in Blessington and Elliot v. Australia, that does not mean that release should necessarily be granted. It rather means that release should not be a mere theoretical possibility and that the review procedure should be a thorough one, allowing the domestic authorities to evaluate the concrete progress made by the authors towards rehabilitation and the justification for continued detention.44 The Committee further considers that any decisions taken pursuant to such applications should be reasoned and subject to judicial review.45 9.5 The Committee therefore needs to examine whether the authors’ access to parole or other probation measures being contingent on their cooperation with the judicial authorities is compatible with the requirement under article 10 (3) that the essential aim of detention is reformation and social rehabilitation. The Committee notes that the ban on access to prison benefits for those who do not collaborate is expressly provided for by Italian law as an exception to the life imprisonment regime in case of a number of serious crimes. While the Committee does not question the State Party’s entitlement to establish policies to address organized crime, it nonetheless needs to examine whether the effective application of such policies excessively restricts prisoners’ prospects of release. 9.6 The Committee notes that, according to the State Party, cooperation amounts to a tangible demonstration of rehabilitation and dissociation from criminal values and that the convicted person has a choice whether to cooperate. However, the State Party does not discuss at all the fact that, in the context of mafia-type structures, members are usually bound by a code of silence. In these circumstances, a person may choose not to cooperate for reasons related to risk to life and personal security. While the State Party sees cooperation as the ultimate proof of rehabilitation, the Committee considers that cooperation is not necessarily 41 Para. 10. 42 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), rule 88 (1). 43 Aliev v. Ukraine (CCPR/C/135/D/3809/2020), para. 7.5. 44 Blessington and Elliot v. Australia, para. 7.7. 45 Aliev v. Ukraine, para. 7.6. CCPR/C/142/D/3328/2019-3579/2019 12 GE.25-04571 a free personal choice, and that lack of cooperation does not necessarily mean absence of rehabilitation or refusal to dissociate from criminal values.46 9.7 The Committee also notes that domestic courts make a primarily automatic application of the rule contained in article 4 bis (see para. 2.5 above), based on the principle of cooperation, rather than on penological grounds. In the circumstances of such a strict conditionality, it was impossible for the authors to show that there were no longer any legitimate reasons of a penological nature to justify their continued detention and the impossibility of benefiting from parole or other probation measures. By establishing by law the equivalence between failure to cooperate and the irrebuttable presumption of dangerousness to society – and thus making access to probation measures contingent upon cooperation – the current regime fails to consider any rehabilitation progress other than cooperation with the authorities.47 9.8 In the light of the above considerations, the Committee considers that the lack of a possibility of judicial review and of a realistic prospect under the State Party’s legal framework for the authors to be eligible for parole or other probation measures in absence of cooperation upsets the essential aim of the penitentiary system – which should be reformation and social rehabilitation – and is thus contrary to article 10 (1) and (3) of the Covenant.48 10. The Committee, acting under article 5 (4) of the Optional Protocol and having discontinued its consideration of the communications of 18 of the authors (see para. 8.3 above and annex I) and having declared the communication inadmissible in respect of the authors who received a final judgment by 21 March 2013 (see para. 8.5 above and annex I) and of those who have not provided the date of the final judgment in which they were sentenced to life imprisonment or have not been sentenced to life imprisonment (see para. 8.6 above and annex I), is of the view that the State Party has violated the rights of the 26 remaining authors under article 10 (1) and (3) of the Covenant. 11. Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide those authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide the authors with an effective remedy. The State Party is under an obligation to take steps to prevent similar violations through an appropriate review mechanism in the future. 12. Bearing in mind that, by becoming a party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official language of the State Party. 46 European Court of Human Rights, Marcello Viola v. Italy (No. 2), paras. 116 and 118; and Italy, Constitutional Court, Judgment No. 253, 23 October 2019. 47 European Court of Human Rights, Marcello Viola v. Italy (No. 2), para. 128. 48 The Committee notes that, in March 2023, the Committee of Ministers of the Council of Europe examined the execution of the judgment of the European Court of Human Rights in the case of Marcello Viola v. Italy (No. 2) and noted with satisfaction the legislative reform of article 4 bis of the Penitentiary Act, which introduced the possibility for prisoners who fail to cooperate with the justice system to be eligible for release on parole, thus responding to the indications of the European Court and the previous call of the Committee of Ministers (document CM/Del/Dec(2023)1459/H46-13). CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 13 Annex I Communication No. Name Date of birth Date of final judgment Committee’s decision 3328/2019 Antonio Albanese 26 May 1965 6 July 2007 Inadmissible 3329/2019 Antonio Albanese 3 June 1965 19 June 2009 Inadmissible 3330/2019 Antonino Alcamo 8 August 1964 25 May 2006 Inadmissible 3331/2019 Giovanni Alfano 4 October 1957 15 May 2003 Inadmissible 3332/2019 Fulvio Amante 23 January 1955 19 June 2009 Inadmissible 3333/2019 Giacomo Salvatore Amato 7 January 1965 2 February 2004 Inadmissible 3334/2019 Vincenzo Amato 30 August 1954 22 June 2000 Inadmissible 3335/2019 Franco Ambrosio 13 April 1956 25 October 2000 Inadmissible 3336/2019 Giuseppe Amendola 1 January 1963 21 April 1997 Inadmissible 3337/2019 Paolo Amico 22 April 1967 5 February 2003 Inadmissible 3338/2019 Francesco Annaloro 1 December 1950 10 October 2007 Inadmissible 3339/2019 Giancarlo Anselmo 15 September 1958 21 March 2014 Violation 3340/2019 Antonio Antonucci 20 November 1975 18 December 2008 Inadmissible 3341/2019 Emanuele Antonuccio 22 June 1969 20 November 1998 Inadmissible 3342/2019 Costanzo Apice 21 May 1981 29 November 2016 Violation 3343/2019 Mario Arena 18 January 1962 29 November 1996 Inadmissible 3344/2019 Giovanni Avarello 14 September 1965 25 November 1995 Inadmissible 3345/2019 Giovan Battista Badalamenti 10 January 1945 30 June 2009 Inadmissible 3346/2019 Vito Baglio 25 April 1968 22 June 1998 Inadmissible 3347/2019 Giuseppe Barbagallo 6 June 1958 31 October 2001 Discontinued 3348/2019 Francesco Barivelo 6 September 1975 29 April 2005 Inadmissible 3349/2019 Santo Battaglia 4 March 1961 20 March 2019 Violation 3350/2019 Giuseppe Belcastro 3 July 1956 3 August 2017 Violation 3351/2019 Salvatore Belfiore 26 June 1954 14 February 2002 Inadmissible 3352/2019 Simone Benenati 21 June 1959 10 November 2005 Inadmissible 3353/2019 Salvatore Biondo 5 January 1956 18 January 2003 Inadmissible 3354/2019 Bernardo Bommarito 8 January 1937 Before 2004 Inadmissible 3355/2019 Concetto Bonaccorsi 26 February 1961 11 June 2001 Inadmissible 3356/2019 Ignazio Bonaccorsi 20 September 1957 20 January 2003 Inadmissible 3357/2019 Natale Bonafede 4 August 1969 2 February 2004 Inadmissible 3358/2019 Francesco Borrata 16 June 1968 Not sentenced to life imprisonment Inadmissible 3359/2019 Antonino Bosco 30 July 1955 1 March 2004 Inadmissible 3360/2019 Filippo Botteri 3 June 1963 4 February 2011 Inadmissible 3361/2019 Alessandro Bozza 24 November 1961 26 October 2001 Inadmissible CCPR/C/142/D/3328/2019-3579/2019 14 GE.25-04571 Communication No. Name Date of birth Date of final judgment Committee’s decision 3362/2019 Giuseppe Brancato 14 May 1958 11 October 2004 Inadmissible 3363/2019 Gianfranco Bruni 13 November 1963 21 March 2014 Discontinued 3364/2019 Salvatore Buccarella 4 June 1959 14 July 2005 Inadmissible 3365/2019 Mario Buda 27 November 1961 13 December 2004 Inadmissible 3366/2019 Ignazio Bufalini 8 October 1961 27 October 2008 Inadmissible 3367/2019 Orazio Buonprincipio 29 December 1968 18 July 2014 Violation 3368/2019 Salvatore Busco 10 January 1950 14 March 2006 Inadmissible 3369/2019 Antonino Cacici 13 April 1970 5 November 1998 Inadmissible 3370/2019 Gioacchino Calabro 2 June 1946 20 May 2004 Inadmissible 3371/2019 Salvatore Calabro 4 July 1968 28 June 2012 Inadmissible 3372/2019 Salvatore Calafato 23 June 1967 5 November 1998 Inadmissible 3373/2019 Paolo Campanella 27 August 1951 30 October 2001 Inadmissible 3374/2019 Sebastiano Cannizzaro 15 March 1954 9 July 2007 Inadmissible 3375/2019 Antonio Capasso 4 December 1967 30 November 2000 Inadmissible 3376/2019 Mario Capuano 22 November 1973 19 November 2009 Inadmissible 3377/2019 Angelo Caruso 12 July 1970 2 February 2011 Inadmissible 3378/2019 Aldo Carvelli 26 January 1965 1 June 2006 Inadmissible 3379/2019 Rosario Casciana 20 November 1971 20 November 1998 Inadmissible 3380/2019 Carmelo Cascino 3 February 1967 8 February 2005 Inadmissible 3381/2019 Giuseppe Casciola 7 January 1967 1 March 2004 Inadmissible 3382/2019 Giulio Castiglia 2 March 1953 21 March 2014 Violation 3383/2019 Pellegrino Cataldo 4 December 1949 4 July 2000 Discontinued 3384/2019 Aurelio Cavallo 23 January 1956 Unknown Discontinued 3385/2019 Domenico Cavo 3 August 1979 7 June 2011 Inadmissible 3386/2019 Arturo Censabella 25 October 1957 8 March 2011 Inadmissible 3387/2019 Gavino Chessa 21 May 1956 14 February 2002 Inadmissible 3388/2019 Giosuè Chindamo 21 April 1962 2 October 2006 Inadmissible 3389/2019 Cataldo Chiochia 4 December 1958 26 November 2001 Inadmissible 3390/2019 Modestino Cirella 3 January 1948 10 April 2005 Inadmissible 3391/2019 Pasquale Cirillo 27 September 1971 28 September 2012 Inadmissible 3392/2019 Cosimo Commisso 8 March 1954 30 April 2002 Inadmissible 3393/2019 Claudio Conte 6 September 1970 Unknown Discontinued 3394/2019 Gianfranco Conti Taguali 29 June 1974 24 April 2012 Inadmissible 3395/2019 Giuseppe Coppola 11 June 1980 27 November 2015 Violation 3396/2019 Girolamo Costanzo 4 December 1951 26 April 1999 Inadmissible 3397/2019 Salvatore Cristaldi 28 May 1957 8 April 2018 Inadmissible CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 15 Communication No. Name Date of birth Date of final judgment Committee’s decision 3398/2019 Giuseppe Cristofaro 17 March 1949 15 June 2018 Violation 3399/2019 Alletto Croce 25 February 1964 26 February 1999 Inadmissible 3400/2019 Michele Cuffari 27 July 1959 23 November 2005 Inadmissible 3401/2019 Marcello D’Agata 13 November 1948 17 September 2005 Inadmissible 3402/2019 Giuseppe D’Agostino 12 September 1967 6 July 2007 Inadmissible 3403/2019 Cosimo D’Agostino 3 November 1966 22 January 2002 Inadmissible 3404/2019 Francesco D’Amico 18 March 1934 2 February 2004 Inadmissible 3405/2019 Giuseppe Antonio Davi 9 December 1943 18 October 2001 Inadmissible 3406/2019 Pasquale De Feo 27 January 1961 28 April 1993 Inadmissible 3407/2019 Giovanni De Gennaro 16 February 1950 11 July 2000 Inadmissible 3408/2019 Bruno De Matteis 18 June 1954 16 November 2000 Inadmissible 3409/2019 Tommaso De Pace 3 May 1942 14 February 2002 Inadmissible 3410/2019 Salvatore De Santo 27 February 1958 Unknown Discontinued 3411/2019 Oronzo De Trane 1 February 1978 11 November 2014 Violation 3412/2019 Adriano Di Bari 12 February 1975 24 June 2009 Inadmissible 3413/2019 Giuseppe Di Benedetto 17 October 1955 Unknown Discontinued 3414/2019 Enzo Di Bona 31 May 1966 18 October 2000 Inadmissible 3415/2019 Francesco Di Dio 5 July 1972 Unknown Discontinued 3416/2019 Francesco Di Fresco 5 November 1957 15 July 2002 Inadmissible 3417/2019 Giovanni Di Gaetano 7 December 1938 23 March 1992 Inadmissible 3418/2019 Antonio Di Girgenti 6 October 1965 22 September 2000 Inadmissible 3419/2019 Matteo Di Mauro 15 June 1961 25 June 2002 Inadmissible 3420/2019 Salvatore Di Mauro 24 October 1957 12 June 2008 Inadmissible 3421/2019 Michele Di Mauro 25 August 1948 5 December 2011 Inadmissible 3422/2019 Giancarlo Di Sarno 1 March 1964 17 June 2009 Inadmissible 3423/2019 Tommaso Di Stefano 5 April 1948 1 March 2004 Inadmissible 3424/2019 Raffaele Dragone 23 April 1963 2 May 1997 Inadmissible 3425/2019 Giuseppe Durante 12 February 1959 8 November 1988 Inadmissible 3426/2019 Giuseppe Eligiato 4 March 1963 29 March 2011 Inadmissible 3427/2019 Aldo Ercolano 14 November 1960 17 October 2007 Inadmissible 3428/2019 Vincenzo Esposito 6 July 1964 5 April 2005 Inadmissible 3429/2019 Pacifico Esposito 29 April 1962 11 February 2016 Violation 3430/2019 Salvatore Faia 22 February 1959 15 July 2002 Inadmissible 3431/2019 Felice Falanga 24 November 1960 4 December 1998 Inadmissible 3432/2019 Antonio Fanelli 22 July 1968 29 April 2005 Inadmissible 3433/2019 Giuseppe Farao 23 February 1947 25 June 2009 Inadmissible CCPR/C/142/D/3328/2019-3579/2019 16 GE.25-04571 Communication No. Name Date of birth Date of final judgment Committee’s decision 3434/2019 Salvatore Fiandaca 18 December 1954 7 May 1999 Inadmissible 3435/2019 Gaetano Fiandaca 30 May 1967 20 April 2010 Discontinued 3436/2019 Paolo Sebastiano Furno 14 November 1954 2 February 2011 Inadmissible 3437/2019 Giovanni Gaddone 15 October 1963 4 April 2003 Inadmissible 3438/2019 Ottavio Galati 21 January 1968 16 September 2008 Inadmissible 3439/2019 Raffaele Galatolo 18 July 1950 20 April 2005 Inadmissible 3440/2019 Giuseppe Galeone 30 April 1967 26 October 2001 Inadmissible 3441/2019 Antonio Gallace 13 June 1965 14 November 2000 Inadmissible 3442/2019 Maurizio Galletta 5 August 1966 6 November 2007 Inadmissible 3443/2019 Luigi Galli 5 August 1956 14 April 2005 Inadmissible 3444/2019 Giuseppe Gambacorta 22 September 1958 7 May 2010 Inadmissible 3445/2019 Stefano Ganci 12 February 1962 Unknown Discontinued 3446/2019 Andrea Gancitano 23 November 1955 2 February 2004 Inadmissible 3447/2019 Giuseppe Garofalo 3 November 1978 Unknown Inadmissible 3448/2019 Amedeo Genovese 30 March 1955 Unknown Discontinued 3449/2019 Filippo Gerace 23 October 1951 Unknown Discontinued 3450/2019 Carmine Gerace 22 March 1950 1 April 1997 Discontinued 3451/2019 Lorenzo Giannetti 26 November 1953 6 October 1987 Inadmissible 3452/2019 Silvio Giannetto 15 December 1965 19 June 2009 Inadmissible 3453/2019 Cosimo Grassi 11 March 1963 16 November 2000 Inadmissible 3454/2019 Luigi Grassi 6 May 1969 19 December 2009 Inadmissible 3455/2019 Alessandro Greco 8 August 1973 19 January 2007 Inadmissible 3456/2019 Leonardo Greco 6 June 1938 Unknown Inadmissible 3457/2019 Giuseppe Iovinella 19 February 1966 4 November 2011 Inadmissible 3458/2019 Emanuele Italiano 26 July 1951 31 March 2016 Violation 3459/2019 Francesco Lamberti 30 November 1965 4 February 2009 Inadmissible 3460/2019 Serafino Larosa 1 July 1956 25 May 2002 Inadmissible 3461/2019 Ruggiero Lattanzio 7 May 1960 4 December 2008 Inadmissible 3462/2019 Giuseppe Laudani 19 July 1946 16 November 1995 Inadmissible 3463/2019 Mario Laudani 21 September 1954 16 January 1995 Inadmissible 3464/2019 Antonino Lauria 2 March 1968 9 July 2007 Inadmissible 3465/2019 Maurizio Lavoro 25 August 1969 18 June 2010 Inadmissible 3466/2019 Pasquale Leccia 19 February 1957 31 October 1997 Inadmissible 3467/2019 Agostino Lentini 17 October 1965 15 December 2005 Inadmissible 3468/2019 Antonino Liotta 26 September 1972 16 October 2012 Inadmissible 3469/2019 Alfio Rino Lo Castro 7 January 1960 30 May 2009 Inadmissible CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 17 Communication No. Name Date of birth Date of final judgment Committee’s decision 3470/2019 Cosimo Lo Nigro 8 September 1968 14 June 2022 Violation 3471/2019 Giovanni Lombardi 9 August 1965 3 March 2006 Inadmissible 3472/2019 Sebastiano Lombardo 9 April 1972 13 December 2004 Inadmissible 3473/2019 Salvatore Longo 1 January 1953 25 February 2009 Inadmissible 3474/2019 Giuseppe Lucchese 2 September 1958 4 March 2008 Inadmissible 3475/2019 Luigi Maesano 27 July 1954 Unknown Inadmissible 3476/2019 Giovanni Mafrica 23 August 1970 18 October 2000 Inadmissible 3477/2019 Giuseppe Magri 27 July 1967 9 July 2004 Inadmissible 3478/2019 Gaspare Marazzotta 21 April 1939 2005 Inadmissible 3479/2019 Giuseppe Marchese 10 February 1970 26 September 2008 Inadmissible 3480/2019 Alessandro Marciano 20 September 1951 8 July 2014 Violation 3481/2019 Pietro Giovanni Marinaro 22 November 1952 24 January 2006 Inadmissible 3482/2019 Carlo Marsala 24 June 1967 19 March 2008 Inadmissible 3483/2019 Francesco Martinese 4 February 1956 11 June 2003 Inadmissible 3484/2019 Antonio Carmine Massaro 8 January 1962 16 April 2012 Inadmissible 3485/2019 Pasquale Matina 28 September 1955 3 July 1995 Inadmissible 3486/2019 Vito Mazzara 1 January 1948 8 July 2004 Inadmissible 3487/2019 Pasquale Mazzocchi 7 October 1957 Unknown Discontinued 3488/2019 Antonino Melodia 6 June 1959 30 January 2003 Inadmissible 3489/2019 Michele Mercadante 13 August 1951 1 March 2004 Inadmissible 3490/2019 Donato Mercuri 14 November 1963 30 April 2003 Inadmissible 3491/2019 Salvatore Messina 5 November 1969 11 October 2004 Inadmissible 3492/2019 Giuseppe Montanti 10 May 1956 26 February 1999 Inadmissible 3493/2019 Giovanni Luciano Montefrancesco 30 January 1968 16 November 2000 Inadmissible 3494/2019 Domenico Morelli 28 February 1956 8 March 2012 Inadmissible 3495/2019 Calogero Musso 9 September 1948 2 February 2004 Inadmissible 3496/2019 Sabato Nappa 7 August 1979 9 April 2014 Violation 3497/2019 Antonino Nastasi 3 May 1947 2 February 2004 Inadmissible 3498/2019 Vincenzo Nicastro 18 March 1949 20 November 1998 Inadmissible 3499/2019 Salvatore Nicastro 1 February 1954 Unknown Discontinued 3500/2019 Giuseppe Nicomede 22 June 1968 26 September 2008 Inadmissible 3501/2019 Orazio Nicolosi 5 April 1955 7 November 2001 Inadmissible 3502/2019 Francesco Ottina 1 May 1960 14 March 2001 Inadmissible 3503/2019 Domenico Pace 23 November 1964 22 March 1996 Inadmissible 3504/2019 Pompeo Rosario Padovano 23 February 1971 16 February 2016 Violation CCPR/C/142/D/3328/2019-3579/2019 18 GE.25-04571 Communication No. Name Date of birth Date of final judgment Committee’s decision 3505/2019 Emilio Pagano 8 November 1959 25 June 1991 Inadmissible 3506/2019 Valerio Paladini 23 November 1978 19 October 2010 Inadmissible 3507/2019 Sergio Palumbo 12 January 1960 Unknown Inadmissible 3508/2019 Orazio Paolello 9 March 1966 26 July 2002 Inadmissible 3509/2019 Domenico Papalia 18 April 1945 31 March 1989 Inadmissible 3510/2019 Antonio Papalia 26 March 1954 11 December 2000 Inadmissible 3511/2019 Calogero Pardo 24 December 1962 5 July 2002 Inadmissible 3512/2019 Salvatore Parla 29 May 1948 19 March 2002 Inadmissible 3513/2019 Francesco Pascone 15 August 1962 20 February 2006 Inadmissible 3514/2019 Cesare Natale Patti 24 December 1958 7 February 2011 Inadmissible 3515/2019 Pasquale Pelliccia 17 January 1960 10 June 2004 Inadmissible 3516/2019 Orlando Perrone 18 March 1973 11 April 2013 Violation 3517/2019 Giuseppe Perrone 16 March 1966 16 November 2000 Inadmissible 3518/2019 Rosario Petrolo 26 January 1956 3 July 1995 Inadmissible 3519/2019 Salvatore Francesco Pezzino 6 November 1962 9 February 2007 Inadmissible 3520/2019 Giovanni Piacente 11 December 1961 10 December 1997 Inadmissible 3521/2019 Antonio Piccolo 20 November 1956 22 May 2013 Violation 3522/2019 Pino Piscopo 10 January 1961 30 November 2000 Inadmissible 3523/2019 Giovanni Prinari 8 April 1963 1 June 2010 Inadmissible 3524/2019 Ciro Puccinelli 2 March 1958 21 January 1999 Inadmissible 3525/2019 Giovanni Pugliese 1 January 1970 19 November 2009 Inadmissible 3526/2019 Pietro Puglisi 31 July 1958 17 October 2007 Inadmissible 3527/2019 Camillo Pulvirenti 15 May 1960 24 September 2007 Inadmissible 3528/2019 Gaetano Puzzangaro 8 September 1968 10 November 1997 Inadmissible 3529/2019 Aurelio Quattroluni 7 February 1960 9 July 2007 Discontinued 3530/2019 Albano Racco 17 August 1971 14 December 2004 Inadmissible 3531/2019 Emanuele Radosta 13 November 1972 22 December 2004 Inadmissible 3532/2019 Raffaele Randone 29 October 1974 2 February 2011 Inadmissible 3533/2019 Carmelo Ivano Rapisarda 9 January 1971 13 April 2007 Inadmissible 3534/2019 Roberto Reitano 14 October 1966 5 March 2002 Inadmissible 3535/2019 Francesco Riela 28 February 1956 9 July 2007 Inadmissible 3536/2019 Filippo Rigano 29 January 1957 10 September 2002 Inadmissible 3537/2019 Davide Riserbato 6 December 1967 2 February 2004 Inadmissible 3538/2019 Tommaso Romeo 1 October 1963 7 June 2004 Inadmissible 3539/2019 Demetrio Sesto Rosmini 10 February 1965 4 December 1994 Inadmissible 3540/2019 Gianfranco Rua 4 February 1960 21 March 2014 Violation CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 19 Communication No. Name Date of birth Date of final judgment Committee’s decision 3541/2019 Giuseppe Ruffolo 19 March 1954 21 March 2014 Violation 3542/2019 Massimo Sabatino 6 November 1973 18 December 2014 Violation 3543/2019 Gaetano Sades 27 March 1963 2 February 2004 Inadmissible 3544/2019 Pietro Salerno 10 November 1958 8 November 2000 Inadmissible 3545/2019 Salvatore Sanfilippo 19 July 1963 13 April 2007 Inadmissible 3546/2019 Salvatore Santangelo 20 February 1946 28 May 1987 Inadmissible 3547/2019 Giuseppe Carmelo Saraceno 29 July 1951 24 February 1993 Inadmissible 3548/2019 Giuseppe Scarlino 14 January 1949 25 October 2004 Inadmissible 3549/2019 Vincenzo Sciacca 11 May 1976 6 October 2015 Violation 3550/2019 Francesco Sergi 6 July 1956 27 October 2006 Inadmissible 3551/2019 Francesco Sergi 4 February 1968 24 June 2009 Inadmissible 3552/2019 Mario Serpa 30 January 1953 Unknown Discontinued 3553/2019 Filippo Sesta 30 September 1950 2 February 2010 Inadmissible 3554/2019 Alfredo Sole 18 November 1967 29 November 1996 Inadmissible 3555/2019 Nicola Solazzo 26 February 1965 Unknown Discontinued 3556/2019 Giuseppe Sorrentino 19 March 1963 2 November 2000 Inadmissible 3557/2019 Antonio Sorrento 7 April 1965 26 February 2004 Inadmissible 3558/2019 Francesco Spadaro 7 December 1958 10 June 1996 Inadmissible 3559/2019 Francesco Spampinato 21 August 1950 14 February 1994 Inadmissible 3560/2019 Raffaele Sperandeo 28 August 1965 3 July 1999 Inadmissible 3561/2019 Pasquale Spierto 30 March 1968 13 January 2012 Inadmissible 3562/2019 Giuseppe Squillaci 26 August 1946 9 July 2007 Inadmissible 3563/2019 Francesco Stilo 13 July 1969 11 July 2001 Inadmissible 3564/2019 Antonino Gianluca Stuppia 17 April 1985 28 May 2016 Violation 3565/2019 Luigi Tarantino 28 December 1981 24 February 2016 Violation 3566/2019 Dario Tedesco 23 July 1980 18 February 2013 Inadmissible 3567/2019 Lorenzo Tinnirello 28 January 1960 21 July 2020 Violation 3568/2019 Salvatore Torrisi 25 June 1962 19 June 2009 Inadmissible 3569/2019 Giuseppe Trigila 13 January 1974 26 February 2009 Inadmissible 3570/2019 Salvatore Tuccio 21 April 1953 20 October 2000 Inadmissible 3571/2019 Gennaro Veneruso 8 February 1956 18 December 2014 Violation 3572/2019 Emanuele Versienti 16 January 1973 12 July 2007 Inadmissible 3573/2019 Giovanni Vitale 28 October 1965 12 June 2001 Inadmissible 3574/2019 Giuseppe Zagari 13 February 1963 26 February 2004 Inadmissible 3575/2019 Alfio Zappulla 10 May 1951 3 October 2013 Violation 3576/2019 Alfredo Zara 24 September 1960 15 January 2010 Inadmissible CCPR/C/142/D/3328/2019-3579/2019 20 GE.25-04571 Communication No. Name Date of birth Date of final judgment Committee’s decision 3577/2019 Francesco Zavota 28 July 1969 27 March 2012 Inadmissible 3578/2019 Giovanni Zito 2 December 1969 12 February 2005 Inadmissible 3579/2019 Pierdonato Zito 3 May 1959 16 April 2003 Inadmissible CCPR/C/142/D/3328/2019-3579/2019 GE.25-04571 21 Annex II [Original: Spanish] Individual opinion of Carlos Gómez Martínez (partially dissenting) 1. I concur with the Committee’s Views, but partially disagree with the measures adopted in paragraph 11 as a consequence of the finding of a violation of article 10 of the Covenant. 2. It may be understood that, in the event of a finding of a human rights violation, the process of adopting measures is governed by the dispositive principle and that, therefore, the Committee can only adopt such measures as have been requested in the corresponding communication. 3. If this is so, in the present case the authors did not claim any remedy other than the declaration of a violation of their right. It follows that their claim is satisfied with the mere declaration of the violation and, therefore, it is inappropriate to recommend a measure of non-repetition, as the Committee does in paragraph 11, where it indicates that the State Party has an obligation to take steps to prevent similar violations in the future. 4. If, however, it is considered that, once the violation has been established, it is indeed appropriate to adopt ex officio measures not requested by the authors, it seems to me that it would have been appropriate to add a clarification similar to that which appears in the European Court of Human Rights judgment of 13 June 2019 in the case of Marcello Viola v. Italy (paras. 138 and 143). That judgment clarifies that the Court’s finding of a violation cannot be understood as giving the applicant the prospect of imminent release and that the authorities must be allowed to assess whether the person deprived of liberty has changed and made progress towards rehabilitation to such an extent that his or her continued imprisonment can no longer be justified. CCPR/C/142/D/3328/2019-3579/2019 22 GE.25-04571 Annex III Individual opinion of Hélène Tigroudja (partially dissenting) 1. I concur with the conclusion reached by the Committee in these cases, namely “that the lack of a possibility of judicial review and of a realistic prospect … for the authors to be eligible for parole … in absence of cooperation” violates article 10 of the Covenant (para. 9.8). This is in line with the case law of the European Court of Human Rights and, in particular, with its judgment in Marcello Viola v. Italy (No. 2).1 2. However, I do not share the Committee’s decision to declare the claim under article 7 inadmissible (see para. 8.7) and I find this conclusion at odds with the judgment in Marcello Viola v. Italy (No. 2), in which the European Court considered that the Italian domestic system was in violation of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). 3. In the present case, the two provisions are raised jointly by the authors. The lack of a realistic prospect to be eligible for parole is seen as a breach of both article 7 and article 10 of the Covenant (see paras. 3.1–3.10 above). In the case law of the Committee dealing with the treatment of prisoners, article 10 is seen as a lex specialis and article 7 is construed as a lex generalis.2 However, this does not mean that they exclude each other. On the contrary: it occurs that, in complaints dealing with conditions of detention that cause mental and physical suffering, the Committee concludes that there has been a violation of article 10 and, without further explanation, of article 7.3 Therefore, in this case, the reasoning of the Committee would have been more consistent with its own stance and the European Court’s reasoning by declaring both articles admissible and by concluding that the anguish and mental suffering caused by the lack of realistic prospect to be eligible for parole triggers a violation not only of article 10 but also of article 7 of the Covenant. 1 Application No. 77633/16, Judgment, 13 June 2019. 2 Dafnis v. Greece (CCPR/C/135/D/3740/2020), para. 8.5. 3 Ibid. See also Pichugina v. Belarus (CCPR/C/132/D/2711/2015), para. 6.3.