Life imprisonment, an important reform

Last December 30, a reform was approved which launches an important signal in the fight against the mafia and has a special meaning for Palermo, a city which after the massacres of 1992 transformed pain into hope and rebuilt its identity on the basis of ideas and of the courage of those people – Giovanni Falcone, Francesca Morvillo, Paolo Borsellino, their escort agents – whom the mafia wanted to kill and who today, however, are more alive than ever.

This is the reform of the life imprisonment, with which the legislator, fulfilling the mandate entrusted to him by the Constitutional Court in the previous year, avoided the risk that the demolition of a regulatory system strongly desired by Giovanni Falcone would be carried out, and the way would be opened to the release of those top representatives of «Cosa nostra» who decided and carried out a terrorist attack aimed at bringing the state to its knees, without then showing even the slightest respect for the victims, for their pain, for their need for the truth .

Such an eventuality has been unequivocally excluded by the reform, which indicates a series of very rigorous requirements to which the possibility of accessing conditional release for those sentenced to life imprisonment for mafia and terrorism crimes remains subordinate.

First of all, the interested party must attach specific elements (different from regular prison conduct, the prisoner’s participation in the re-education process and the mere declaration of dissociation from the criminal organization to which he belongs) which make it possible to exclude the actuality of links with the organized crime, terrorism or subversion. Furthermore, it is necessary for the supervisory judge to ascertain the existence of initiatives by the convict in favor of the victims, both in the forms of compensation and in those of restorative justice.

This last requisite, the introduction of which was proposed by the Falcone Foundation, has very important potential: the model of restorative justice, in fact, has a very strong genetic link with the full realization of that “right to the truth” which international courts attribute not only to the families of the victims of the most serious human rights violations, but also to the whole community. A right which therefore must be realized through a choral commitment of all the institutions.

The reform – whose initiative, adopted as a matter of urgency in this legislature, was also appreciated by the CSM – is based on a text which, in the previous legislature, had been widely shared between the political forces.

It could represent the first step in a commitment to update the anti-mafia legislation, to adapt the contrast tools to the reality of a criminal phenomenon that is constantly changing while always remaining the same.

In particular, there are three aspects, closely connected to the reform of the life sentence, which could be the subject of further interventions by the legislator, in the exercise of its discretion.

The first aspect concerns the provision of a specific model of restorative justice structured in such a way as to make this tool effective even with respect to the most serious criminal events, which require appropriate forms of reparation.

In this perspective, the reform of life imprisonment can become an important opportunity to ensure that the “right to truth” and the “right to hope”, both affirmed by the European Court, can reinforce each other.

The profound meaning of the right to hope is therefore to give even the perpetrators of the most serious crimes the possibility of effectively repairing the damage caused to the victims and to society. If the right to hope is to be taken seriously, it is necessary to rediscover, alongside its individual dimension, its collective dimension. It is necessary to exploit its potential in terms of restorative justice also in the realization of the right to the truth for the families of the victims and for the entire community.

It is clear, however, that the implementation of the right to truth represents a commitment that is by no means limited to collaboration with the judiciary.

Think, for example, of the contribution that could be made to the activities of the parliamentary commissions of inquiry, even in cases where collaboration with the judiciary has become impossible due to the inherent limitations of the criminal trial.

It is significant that precisely in 2022, by some of the highest exponents of the institutions, the commitment to illuminate the dark pages of our history was strongly affirmed, on which Italy has the right to know the truth. A commitment that was placed at the basis of the proposal to set up a commission of inquiry into the massacre in via D’Amelio.

The second aspect that deserves adequate attention in the reform programs consists in the provision of all the measures (legislative and organisational) necessary for the construction of an information exchange system involving the surveillance judiciary, the various bodies of the public prosecutor and the prevention measures sections of the courts, to effectively and promptly collect all those elements that are indispensable for the assessments of the economic and patrimonial conditions of the prisoners, required by the law that has just been approved. This is an important profile to ensure the protection of the community and of the weakest people against the danger deriving from the release of prisoners who are the protagonists of only apparent repentance.
The third aspect consists in the commitment to positively encourage collaboration with the judiciary, also by increasing the human and professional resources available to people included in the protection system. This is the best way to encourage the development of a cognitive contribution from subjects who can offer a reconstruction of the life of criminal organizations that can never be replaced by the now widespread techniques for capturing communications. Regarding Tommaso Buscetta’s contribution to understanding the profound reality of «cosa nostra», Giovanni Falcone said: «he gave us a global, broad, far-reaching vision of the phenomenon. He has given us an essential key to understanding, a language, a code ».

With a concerted commitment by the institutions, legislation capable of becoming an important factor of credibility of our State in the international context can be created precisely because of its ability to achieve an exemplary protection of the fundamental rights of all members of the community.

An important role, in this perspective, could be played by the Parliamentary Anti-Mafia Commission, the establishment of which has also been requested in this legislature by some of the most authoritative representatives of civil society, signaling that the time has come to become more present in those uncomfortable contexts and far away where the mafias proliferate. It is a commitment not only of justice, but, even before that, of solidarity and civil courage.

*President of the Court of Palermo

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