Constitutional Court: Conditional Release and Barred Crimes

1. The facts

   The case originates from the prison history of Domenico Pavone, sentenced to life imprisonment for mafia-type offenses and previously convicted of extremely serious crimes. After serving over twenty-six years in prison, the inmate filed a petition for conditional release without, however, undertaking a path of cooperation with the justice system. According to reports from publications such as Il Dubbio and specialized journals, the L'Aquila Surveillance Court questioned the constitutional legitimacy of the provisions introduced by Decree-Law 162/2022. These rules require the non-cooperating inmate to demonstrate not only rehabilitation, but also the absence of current links with the criminal organization and the risk of their re-establishment, in addition to the fulfillment of civil obligations. The proceedings concluded before the Constitutional Court, which had to determine whether these requirements constituted an insurmountable barrier to the rehabilitative function of punishment.

2. 

   The laws at play

   The regulatory framework centers on Article 4-bis of the Penitentiary Law, paragraphs 1-bis.1 and 1-bis.2. First, paragraph 1-bis.1 states that non-cooperating inmates convicted of barred crimes can access benefits only by providing elements that exclude current links with organized crime. Second, paragraph 1-bis.2 regulates the burden of proof and the powers of the judge, who must obtain opinions from the National Antimafia Prosecutor's Office and verify the financial situation to ascertain the fulfillment of civil obligations. Third, Articles 176 and 177 of the Criminal Code define the general requirements for conditional release, requiring the proven rehabilitation of the convicted person. Finally, Article 27, paragraph 3, of the Constitution mandates that punishments must aim for the rehabilitation of the convicted person and prohibits treatment contrary to humanity. The combination of these rules determines whether the choice not to cooperate, despite being a right, can transform into an absolute bar to freedom.

3. What the jurisprudence says

   The direction of constitutional jurisprudence has undergone significant evolution in recent years. In the past, the Court had already clarified that absolute bars were incompatible with the Constitution, as cooperation could not serve as the sole indicator of rehabilitation. Subsequently, the principle was established that the legislature may impose stricter requirements for non-cooperating inmates, provided that such burdens do not result in an impossible standard of proof. Jurisprudence has specified that an inmate's silence must not be interpreted as a presumption of social dangerousness if other indicators of profound change are present. With this recent decision, the established principle is that the surveillance judge must conduct a thorough investigation: if the inmate provides serious allegations regarding their detachment from the criminal past, the judge cannot merely note the failure to cooperate, but must exercise ex officio powers to ascertain the substantive truth through police forces and investigative bodies.

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8. What it teaches professionals

   1. Proactivity in providing evidence: the defense lawyer must not merely await the judge's initiative, but must construct a comprehensive evidentiary file documenting every indicator of severance from the criminal environment, such as the death of accomplices or the dissolution of the group.
   2. Rigorous documentation of civil obligations: it is essential to provide detailed proof of the objective impossibility of fully compensating the damage or to demonstrate maximum effort in relation to available income.
   3. Requesting investigative actions: counsel should urge the magistrate to exercise the ex officio investigative powers affirmed by the Court, preventing a rejection based solely on the absence of cooperation.
   4. Highlighting the rehabilitation record: every educational certificate, work record, or treatment activity must be woven into a coherent narrative of rehabilitation that overcomes the static evaluation of an offense committed decades earlier.

References: Articolo 4-bis Legge 354/1975Articolo 176 Codice PenaleArticolo 27 Costituzione

Editorial oversight: Avv. Federico Papa·ICAMUpdated 21 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction