Judgment No. 32 of 2020

Marta CARTABIA, President, Francesco VIGANO', Author of the Judgment

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In this case, the Court heard a series of referral orders from a number of courts questioning the constitutionality of a provision set forth in a recently enacted anti-corruption law (No. 3 of 2019). The provision lays down more restrictive conditions under which a supervisory court can replace the term of imprisonment that a person convicted of a corruption offence has been sentenced to with a non-custodial measure. According to established case law, any changes to the rules on the enforcement of sentences making them harsher can apply retroactively, since such rules have been considered so far not to be covered by Article 25(2) of the Constitution, which enshrines the principle that no person may be punished by a more severe penalty than that provided for at the time the offence was committed (nulla poena sine lege praevia). As a consequence, the 2019 amendments have been widely held as applicable also to persons convicted of offences committed before the enactment of the new law. The referral orders essentially asked whether the retrospective application of the new detrimental rules was compatible with Article 25(2) of the Constitution, considered in light of the recent case law of the European Court of Human Rights (ECtHR) on Article 7 ECHR. Departing from its own previous case law, the Court ruled that the enforcement of sentences is, in principle, governed by the law in force at the time of the execution of the sentence and not by the law in force at the time of the commission of the offence, unless the legislative amendments enacted after the commission of the offence are so significant as to transform the scope of the penalty and its actual impact on the convict’s personal liberty. In this latter case, the application of the subsequent law would amount to an enforcement of a penalty that is essentially different from that provided for at the time of the commission of the offence, and would thereby infringe the nulla poena principle. As a consequence, the Court declared that the challenged provision, as interpreted by established case law as applicable also to persons convicted of offences that have been committed before its entry into force, is unconstitutional.

Judgment No. 18 of 2020

Marta CARTABIA, President, Marta CARTABIA, Author of the Judgment

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The Court declares unconstitutional a number of provisions on special house arrest, insofar as they only apply to female inmates having children under the age of ten, and do not apply to incarcerated mothers with severely disabled children of any age. In fact, the Court considers that the limit of ten years of age violates the constitutional principles of equality, reasonableness and protection of the fundamental rights of the human person (Articles 2 and 3 of the Constitution), along with those laid down in Article 31(2) of the Constitution (also invoked by the referring court), which provides for the protection of maternity, that is the bond between mother and child, which cannot be considered to end after the initial stages of the child’s life. These principles require providing for alternative measures to detention having the principal purpose of protecting the child, an innocent third party requiring daily relationship with and care from the inmate; principles that must also apply to situations involving a severely disabled child, who is always in a particularly vulnerable physical and psychological state irrespective of his or her age. In fact, experience shows that the life circumstances and health of persons with a severe disability tend to deteriorate further as they advance in age. As a result, making the prison benefit concerned conditional upon a parameter related only to age is unconstitutional where a severely disabled person is involved. It must also be noted that according to the Constitutional Court’s case law, human relationships, including in particular family ones, are decisive factors in the full development and effective protection of the most vulnerable people. In fact, this Court has consistently held, in a rich line of settled case law, that “ensuring full protection for weaker individuals” also requires “continuity within the constitutive relationships of the human personality” (Judgment no. 203 of 2013). Moreover, it has also reiterated that the right of a disabled person to “receive assistance within the context of his or her life community” constitutes “the fulcrum of the protections established by the legislator, with the aim of removing the impediments liable to prevent the full development of the human person” (Judgment no. 232 of 2018). It need hardly be added, the Court notes, that the declaration of unconstitutionality does not impinge upon the further prerequisites for granting the measure according to which female inmates will be eligible for house arrest in their own home, in another private residence, or within a facility offering care, assistance or hospitality only “if there is no tangible risk of the commission of further offences”.