Il principio rieducativo della pena e della dignità del detenuto : prime risposte tra Corte Costituzionale e Corte Europea dei Diritti dell'Uomo : riflessione a margine di Corte Cost. n. 279 del 2013

Never like in these past few years, the concern shown by the media to the overcrowding of italian penitentiaries has progressively grown in intensity up to the ruling of the European Court of Human Rights, Torreggiani and others v. Itlay, which, on January 8, 2013, condemned Italy for the inhuman and degrading treatments caused by detention conditions, which resulted in a violation of Article 3 of the ECHR. The Constitutional Court’s ruling, n. 279 of 2013, which found inadmissible the question of constitutional legitimacy of the criminal code provision about indictment of punishment (Article 147, § 1, n. 2), gives rise to several issues and stimulates a debate which, on the one side, involves the Constitutional Court’s attitude towards the supranational level of fundamental rights protection, embodied by the jurisprudence of the ECHR, and, on the other, touches upon her limits to manipulate the Law, moving throughout a background of a persistent violation of constitutional (and conventional) fundamental rights of the individuals. The article, after a brief introduction aimed at illustrating the object of the question of constitutional legitimacy brought to the Constitutional Court (par. 1), addresses these two aspects, firstly, from the perspective of the potential influence of the ECHR’s pilot judgement on italian Constitutional Court’s case law (par. 2.1.); and, secondly, from that of the disproportion of the mean selected by the judges in order to decrease the impact of overcrowding issue on the fundamental rights protection of those convicted (par. 3).