A New Technique for Implementing ECtHR Judgments: Will It Work?

In this much-awaited ruling (Order No. 97 of 15 April 2021), the Corte Costituzionale had to decide on the constitutionality of the existing prohibition on release on parole for life prisoners convicted for Mafia-related crimes, in the absence of any cooperation with justice (ergastolo ostativo). This form of life imprisonment without prospect of release had already been deemed in contrast with Article 3 of the European Convention of Human Rights (echr) in the judgment rendered by the Strasbourg Court in Viola v. Italy (No. 2): on that occasion, the ECtHR invoked a legislative reform of the ergastolo ostativo. In the order at hand, the Corte Costituzionale, instead of formally declaring the unconstitutionality of relevant provisions, resorted to a recently crafted technique to postpone the hearing (until 10 May 2022) so as to give the Houses time to pass new legislation and fix the “systemic problems” outlined by the Strasbourg Court. This contribution aims at offering initial reflections on the use of such technique as an instrument for ensuring the proper implementation of ECtHR judgments in the domestic legal order. For this purpose, after an overview of the ECtHR case law in the field of ergastolo ostativo, it will provide an analysis of relevant proceedings before the Committee of Ministers qua monitoring body of the execution of ECtHR judgments. Finally, a critical appraisal of the reasons militating in favor of and against this technique, from the standpoint of the respect of human rights, will ensue.