• Fri. Oct 22nd, 2021

Life imprisonment: Guzzetta, ‘it is not a free ordinance for everyone, it removes an obstacle to the legislator’


May 11, 2021

Ordinance number 97 (editor Nicolò Zanon) on life imprisonment for mafia crimes filed today in the Consulta “is not a ‘free all’ sentence. But an order that removes an obstacle”: that of limiting the only way of access to conditional release. “Taking a further step with respect to a sentence 253 of 2019, we abandon the assumption that collaboration is a sign of repentance in itself, in the awareness that non-cooperation can still have relevance”. The constitutionalist Giovanni Guzzetta, Full Professor of Public Law Institutions at the University of Rome Tor Vergata explains this to Adnkronos, who adds: “the Court considered that by reason of the principle of institutional collaboration it was appropriate to offer the legislator the possibility of regulating the the matter, since Parliament has a wider operating margin than the constitutional judge has. It did so by relocating the reward mechanisms in a logic that is not moralistic but of exchange between the State and the defendant who pursues ends, with a secular approach to the question of collaboration ” . “The sentence – he continues – abandons an idea of ​​criminal paternalism, for which those who collaborate are in good faith and those who do not collaborate are certainly in bad faith”, calibrating themselves on a substantive and an institutional level. As for the first, according to the professor of Tor Vergata, “this ordinance takes a further step compared to a previous sentence 253 of 2019 in which the idea was demolished that for the sole fact of not collaborating a convict was suspected of maintaining ties with criminal associations to which they belong. This is no longer a dogma but the Court is aware of the fact that even if it is not, the lack of cooperation can have relevance. This is therefore a sentence that removes the obstacle that prevented the judge from assessing in concrete if the lack of collaboration was motivated by the lack of repentance, or by other compatible reasons “. On the institutional level,” it is not a question of choosing between inside and outside everyone, but of concretely evaluating and establishing legislative procedures that can differentiate the position of the condemned . The Court – remarked the constitutionalist – held that on the basis of a principle of institutional collaboration it was appropriate offer the Parliament the possibility of regulating the matter by having the legislator a wider operating margin than the constitutional judge has. This is because the Court already cites a parliamentary debate and legislative proposals and as this issue then has an effect on the situation of other types of life sentences that would find themselves in a situation of unreasonably undifferentiated treatment “. After the Cappato case and the order 132 of 2020 relating to the prison sentence for defamation crimes in the press, “it is the third time – recalls Guzzetta – that the Court has adopted this decision technique and reserves the right to intervene.” How? “Not having creative power, it could reconstruct on the basis of constitutional principles the possible solutions, also considering similar situations and therefore using the picklock of the principle of equality and reasonableness – replies the professor of Tor Vergata – This is a complex case because the interventions alluded to in the sentence are very large. It is unlikely that in the event of a parliamentary default the Court will remain inert. In fact, it has already set the next hearing in which it will take note of the actions or omissions of Parliament “. And will it also be able to evaluate the intervention of the legislator?” It depends, but it cannot be ruled out to assess whether the parliamentary decision has overcome the doubts of unconstitutionality. It could either refer the matter to the judge to assess the relevance or unfoundedness of the question under the new law; or believe that the issue has moved on to the new provision. And then evaluate the arrangement. This derives from how the parliamentary intervention will be constructed. “Overwhelming or insurmountable difficulties?” If the legislator tackles the issue in ideological rather than secular terms, it will be difficult to find the solution – concludes Guzzetta – If he grasps the nuances of the Court, then the positions will fall more extremist, it is possible that a solution can be found “. (by Roberta Lanzara)