Corte europea dei diritti dell’uomo
(Prima Sezione)
26 ottobre 2017
CASE OF CIRINO AND RENNE v. ITALY
(Applications
nos. 2539/13 and 4705/13)
FINAL
26/01/2018
This
judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Cirino and Renne v. Italy,
The European
Court of Human Rights (First Section), sitting as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Guido Raimondi,
Krzysztof Wojtyczek,
Ksenija Turković,
Armen Harutyunyan,
Jovan Ilievski, judges,
and
Abel Campos, Section Registrar,
Having
deliberated in private on 3 October 2017,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two
applications (nos. 2539/13 and 4705/13) against the Italian Republic
lodged with the Court under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”) by two Italian
nationals, Mr Andrea Cirino (“the first applicant”) and Mr Claudio Renne (“the
second applicant”), on 14 and 21 December 2012 respectively. The
second applicant died on 10 January 2017. On 13 June 2017 the second
applicant’s daughter, Ms Gretel Renne, expressed the wish to pursue the
proceedings before the Court.
2. The first applicant was represented
by Mr A. Ginesi and Mrs S. Filippi, lawyers practising in Turin and
Rome respectively. The second applicant was represented by Mr M. Caliendo and
Mr A. Marchesi, lawyers practising in Asti and Rome respectively. The
second applicant’s daughter was represented by Mr M. Caliendo. The Italian
Government (“the Government”) were represented by their Agent,
Mrs E. Spatafora.
3. Joint written observations were
received from the Nonviolent Radical Party, Transnational and Transparty, the
association “Non c’è pace senza giustizia”
and the Italian Radicals (former Italian Radical Party), whom the Section
President had authorised to intervene in the written proceedings (under Article
36 § 2 of the Convention and Rule 44 § 3 of the Rules of Court).
4. Relying on Article 3 of the
Convention, the applicants complained of having suffered violence and
ill-treatment which they considered tantamount to torture during their
detention. They further submitted that those responsible for the impugned
conduct had not been appropriately punished because in the course of the
criminal proceedings the offences as charged had become statute-barred. They
added, in particular, that by refraining from classifying acts of torture as a
criminal offence and laying down adequate penalties for the latter, the State
had failed to adopt the requisite measures to prevent and punish the violence
and other types of ill-treatment of which they were complaining.
5. On 3 September 2015 the applications
were communicated to the Government.
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
6. The first applicant was born in 1978
and lives in Turin. The second applicant was born in 1975 and was detained in
Turin up to the time of his death on 10 January 2017.
A. The
events of December 2004
7. In 2004 the applicants were detained
in the Asti Correctional Facility.
8. On 10 December 2004 the second
applicant intervened in a fight that had broken out between the first applicant
and a prison officer.
9. The manner in which the impugned
events occurred, as submitted by the applicants and as it emerges from their
witness statements during the domestic proceedings, may be summarised as
follows.
1. The
first applicant’s account
10. On 10 December 2004, following an
altercation with the prison officer, the first applicant was summoned to a
meeting with the correctional unit commander
(comandante di reparto della polizia
penitenziaria). Before he reached
the commander’s office, he was stopped by a group of prison officers, who took
turns beating him. Following the meeting, he was stripped of his clothes and
led to a cell in the solitary confinement wing.
11. The only item of furniture in the
cell was a bed with no mattress, bed linen or covers. As to sanitary
facilities, the cell had a squat toilet without running water and was not
equipped with a sink. The cell window had no window panes and the only source
of heating was a small, malfunctioning radiator, which provided little
protection against the December weather. For a number of days, although it is
unclear for how many exactly, he was left naked.
12. During the first week of his
detention in solitary confinement no food was provided and he was given only
scant amounts of water. He was subsequently given rationed quantities of food.
13. He was beaten on a daily basis,
several times per day. He was repeatedly punched, kicked and hit in the head by
prison officers, who assaulted him in groups of varying sizes.
14. He was also subjected to sleep
deprivation, as the beatings often took place at night and the prison officers
verbally abused him in order to keep him awake.
15. During the detention in solitary confinement
the applicant did not receive visits from his lawyer or his family.
2. The
second applicant’s account
16. On 10 December 2004, following the
same altercation with the prison officer, the second applicant was stripped of
his clothes and led to a cell in the solitary confinement wing of the
correctional facility. The bed in the cell had no mattress, sheets or covers,
and the cell had no sink. Initially there were no panes in the windows, which
were covered with some plastic sheeting after an unspecified number of days.
For a number of days, although it is unclear for how many exactly, he was left
naked. He was subsequently given some light clothing.
17. The applicant’s food was rationed,
and at certain times he was given only bread and water. On some days he
received no food at all.
18. The applicant was beaten by prison
officers, often more than once per day. He was subjected to various forms of physical
violence, including being repeatedly punched, kicked and slapped, at one point
with his head being pinned to the ground by one of the prison officers’ boots.
The beatings occurred both during the day and at night. The applicant was
beaten by four or five officers at a time. One prison officer ripped out a
chunk of his hair.
19. On 16 December 2004 he was
admitted to the hospital.
20. During the period he spent in
solitary confinement he was only allowed outside the cell twice, once to shower
and once for some outdoor time.
B. Criminal
proceedings against the prison officers
21. A criminal
investigation into the impugned treatment was launched in 2005. It was
initiated when it emerged, in the context of covert surveillance in an
operation to investigate drug smuggling in the Asti correctional facility, that
a number of the prison officers had discussed the ill-treatment inflicted on
the applicants.
22. On 7 July 2011 five prison officers,
C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged
with ill-treatment of the applicants under Article 572 of the Italian Criminal
Code (“the Criminal Code”), in conjunction with Article 61 § 9
of the Criminal Code, a provision which considers the commission of an offence
by a civil servant abusing his or her position to be an aggravating
circumstance.
23. On the same date the applicants
joined the proceedings as civil parties.
1. Proceedings before the Asti District
Court
24. The
Asti District Court’s judgment was delivered on 30 January 2012. Its
findings may be summarised as follows.
25. As
to the establishment of the facts concerning the ill-treatment, the court found
that the evidence gathered during the investigation and produced at the trial
showed that the events had occurred in the manner described by the victims in
their submissions during the trial. The Court relied on statements to the
effect that the applicants had been subjected to physical and verbal abuse,
coupled with the deprivation of food, water, sleep, and clothing, and had been
detained in cells without adequate access to sanitation, heating, and bedding.
26. The
court further found it to be established beyond reasonable doubt that the
applicants had been subjected not merely to isolated acts of harassment and
abuse, but to repeated ill-treatment which had been put into practice in a
systematic manner.
27. More
specifically, the court found it established beyond reasonable doubt that the
first and second applicants had been subjected to repeated physical violence
from 10 to 29 December 2004 and from 10 to 16 December 2004 respectively.
The court found that the beatings occurred regularly at all times of the day,
and particularly at night.
28. The
court noted that the second applicant had been admitted to the emergency room
of the Asti Civil Hospital on 16 December 2004 with traumatic injuries. With
regard to the first applicant, the court acknowledged his hospitalisation
following the events without citing a date or specific medical documentation to
this effect.
29. Moreover,
the court found it to be established beyond reasonable doubt that in 2004 and
2005 in the Asti Correctional Facility there had existed what it defined as a
“generalised practice of ill-treatment” that had been systematically inflicted
on prisoners considered to be problematic. Measures which the court defines as
exceeding the bounds of permitted disciplinary or security measures were
routinely taken to punish and intimidate problematic detainees and to deter
other disorderly behaviour. As part of this practice, a detainee would
generally be taken to a cell in the solitary confinement unit where he would be
subjected to repeated harassment and abuse by prison officers. The abuse would
primarily take the form of physical violence, as detainees would be beaten by
groups of prison officers, often during the night. In addition, detainees would
be routinely subjected to sleep, food and water deprivation, and would also be
denied access to sanitary facilities.
30. The court further found ample evidence that the prison
officers operated in a climate of impunity. This was due, in the court’s view,
to the acquiescence of high-level
prison administrators and the complicity that existed among prison officers.
31. It emerges that the court ordered an
inspection of the correctional facility, including the solitary confinement
wing, during the course of the trial. The court found that several cells in the
solitary confinement wing of the Asti Correctional Facility were unfit for
holding detainees. Some did not have bed linen, mattresses, sanitary facilities
or heating. Although the windows in some cells had no panes and others had
windows covered by metal plates with small perforations, the cells were nonetheless
used during the winter months. Some cells were equipped with a bed and a squat
toilet but no other furniture or sanitary facilities.
32. Following
the establishment of the facts, the court went on to assess responsibility for
the established conduct. In this regard, G.S. was acquitted as to his
involvement in the ill-treatment, and A.D. and D.B. were acquitted of the
charge of ill-treatment under Article 572 of the Criminal Code. The court
nonetheless held that the conduct of A.D. and D.B. amounted to infliction of
bodily harm contrary to Article 582 of the Criminal Code. However, it ordered
that the proceedings against them be discontinued due to the expiry of the
applicable time-limit as laid down in the statute of limitations.
33. With
respect to C.B. and M.S., the court held that there existed sufficient evidence
to conclude that they had been responsible for most, if not all, of the acts of
physical, psychological, and “material” abuse at issue. The court then
considered that the acts at issue could be classified as torture pursuant to
the definition provided by the United Nations (UN) Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went
on to observe that Italy had failed to incorporate the offence of torture into national
legislation, in breach of its international obligations. It was therefore obliged
to conclude that, under Italian law, there existed no legal provision that
would allow it to classify the impugned conduct as acts of torture.
34. Having
taken note of the above-mentioned considerations, the court proceeded to assess
which existing offence was more suitable in respect of the legal classification
of C.B. and M.S.’s conduct. When conducting its assessment, the court relied on
the conclusion that the primary purpose of the impugned treatment was to punish
the applicants, to “maintain order” in the correctional facility, and to convey
a clear message to the other detainees.
35. The
court considered that the conduct of the two prison officers thus fell most
appropriately within the scope of Article 608 of the Criminal Code, which deals
with abuse of authority against arrested or detained persons. However, the
statutory limitation period for the offence in question had elapsed, as the
court had found no procedural action which would have the effect of
interrupting it.
The
court stated that C.B. and M.S. were also responsible for the infliction of
bodily harm, but that, as the statute of limitations was applicable to that
offence as well, such a finding did not alter the substance of the decision.
The court therefore ordered that the proceedings against C.B. and M.S be
discontinued because the applicable time-limit as laid down in the statute of
limitations had expired.
2. Proceedings before the Court of
Cassation
36. On 22
February 2012 the public prosecutor lodged an appeal with the Court of
Cassation, arguing that the Asti District Court had erred in the legal
classification of the offence with respect to C.B. and M.S. The prosecutor
contended that the most appropriate offence for the purposes of classification
of the conduct in question would have been aggravated ill‑treatment under
Article 572 of the Italian Criminal Code ‒ as initially identified in the
bill of indictment ‒ in conjunction with Article 608 of the Criminal
Code.
37. By a judgment issued on 21 May 2012,
and filed with the court Registry on 27 July 2012, the Court of Cassation
declared the public prosecutor’s application inadmissible. The court expressed
its agreement with the prosecutor’s contention as a matter of principle but, as
the statute of limitations had been likewise applicable to the offence of
aggravated ill‑treatment, a decision in favour of the prosecution would
have been devoid of any practical effect.
3. Subsequent
proceedings
38. On 26 July 2012 C.B. lodged an
objection to execution (incidente
d’esecuzione) with the Asti District Court, arguing that its decision of
30 January 2012 (see paragraph 24 above) could not be considered as final and
binding insofar as he was concerned, as the decision had not been properly
served on him.
39. In a decision issued on 31 October
the Asti District Court dismissed C.B.’s objection on the grounds that C.B.
must have had cognisance of the decision at the moment the public prosecutor
lodged an appeal with the Court of Cassation (see paragraph 36 above) or, at the latest, when his representative
filed a defence brief at a hearing before the Court of Cassation in May 2012.
40. On 26 July 2012 C.B. appealed against
the decision before the Court of Cassation.
41. In a
judgment delivered on 11 July 2013, and filed with the Registry on 1 August
2013, the Court of Cassation granted the appeal. It found that the failure to
serve the decision on C.B. could not be remedied by C.B.’s potential knowledge
of the decision at a later stage, as argued by the District Court. The Asti
District Court judgment of 30 January 2012 could not, accordingly, be
considered final and binding insofar as C.B. was concerned.
42. Based on the latter decision, on 10
October 2013 C.B. lodged an appeal against the Asti District Court judgment of
30 January 2012 with the Turin Court of Appeal, seeking an acquittal.
43. No further information has been
provided by the parties as to the outcome of the proceedings.
C. Disciplinary
proceedings against the prison officers
44. In their
observations of 31 March 2016, the Government indicated that four prison
officers had undergone disciplinary proceedings in connection with the impugned
events and by different decisions issued on 29 January 2013 the following
disciplinary sanctions had been imposed:
– C.B.
was dismissed from his functions (destituito
dal servizio). He was, however, reinstated on 26 November 2013,
following the Court of Cassation judgment of 11 July 2013 which suspended the
binding nature of the Asti District Court’s judgment (see paragraph 41 above);
– M.S.
was dismissed from his functions;
– A.D.
was suspended from duty for a period of 4 months;
– D.B.
was suspended from duty for a period of 6 months.
45. According to a
document issued by the Staff Director of the Prison Administration Department of the Ministry of Justice on 12
October 2015, and furnished by the Government, the four prison officers were
not suspended from duty (sospensione
precauzionale dal servizio) during the course of the investigation or the
trial.
D. Medical
documentation
46. At
the Court’s request, the Government submitted extracts from the prison medical
record of the second applicant between 26 November 2004 and 5 March 2005
and typed copies of his hospitalisation record of 16 December 2004.
47. The prison medical record indicates
that on 13 December 2004 the second applicant was examined visually (whilst still
“behind bars”). He complained of pain in the thoracic area and right ear. The
reporting physician noted the presence of ecchymoses and haematomas around the
patient’s ribcage. He recommended a more thorough medical examination and/or
transfer to the infirmary.
48. The record further indicates that
another visual examination (also “behind bars”) took place on 15
December 2004. The information in this entry is the same as in the
previous entry. Transfer to the infirmary for a medical examination was
recommended.
49. On 15 December
2004 the record shows that the applicant underwent a medical examination in the
afternoon. The physician reported ecchymoses on the patient’s ribcage and in
the retroauricular region. Palpation
of the patient revealed diffuse pain. The reporting physician recommended that
X‑rays be performed for a suspected fracture. Painkillers were
administered.
50. The entry of 16 December 2004 reports
the applicant’s transfer to the emergency room of the Asti Civil Hospital as a
consequence of traumatic injury.
51. According
to the medical record of the Asti Civil Hospital, an X-ray revealed a fractured
rib and the medical examination disclosed diffuse bruising in the thoracic and
abdominal area and pain on palpation. The record states that the applicant told
the doctor his injuries occurred as a consequence of an accidental fall.
52. The prison medical record entry on the
applicant’s discharge from the hospital on 16 December 2004 shows that he was
prescribed painkillers.
53. As to the first applicant, no copy of
the prison medical register had been submitted by the Government,
notwithstanding the Court’s request for such information.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. Relevant
offences as provided by the Italian Criminal Code
54. Article 572 of the Italian Criminal Code
(hereinafter “the Criminal Code”) provides that anyone found guilty of
ill-treating a member of his or her family, a child under fourteen years of
age, or a person under his or her authority or who has been placed in his or
her care or custody may be sentenced to a term of imprisonment of up to five
years.
55. Article 582 of the Criminal Code
provides that anyone who causes bodily harm to another person, resulting in
that person’s mental or bodily injury, may be sentenced to a term of
imprisonment ranging from three months to three years.
56. Article 608 of the Criminal Code
provides that a public official who subjects a detainee or a person in his or
her custody to punitive measures not provided for by law may be sentenced to a
term of imprisonment of up to thirty months.
57. Article 61 of the Criminal Code
contains general provisions related to aggravating circumstances. Article 61 §
9 provides that the commission of an offence as the result of abuse of
authority or by a public official in the performance of his or her duties
constitutes an aggravating circumstance.
B. Time-barring
of criminal offences
58. The relevant domestic law provisions
are set out in Cestaro v. Italy, no.
6884/11, §§ 96-101, 7 April 2015.
C. Introduction
of the offence of torture into the Italian criminal law framework
59. On 5 March 2014 the Italian Senate
approved a bill introducing the offence of torture into the Italian legal
system. The bill was subsequently sent to the Chamber of Deputies for approval.
The Chamber of Deputies amended
the bill and the text was returned to the Senate for reconsideration on 13
April 2015. On 17 May 2017 the Senate approved the bill, with further
amendments, and the text once again returned to the Chamber of Deputies for
reconsideration. On 5 July 2017 the Chamber of Deputies approved and adopted
the final version of the bill. On 18 July 2017 the bill entered into force as
Law No. 110 of 14 July 2017.
THE LAW
60. The Court considers that the
applications should be joined, given their related factual and legal background
(Rule 42 § 1 of the Rules of Court).
II. PRELIMINARY
ISSUE
61. Following the second applicant’s
death on 10 January 2017, his daughter, Ms Gretel Renne, informed the Court of
her wish to pursue the application in her father’s stead (see paragraph 1
above).
62. In cases in which an applicant has
died after lodging an application, the Court has on previous occasions taken
into account statements made by the applicant’s heirs or close family members
expressing their wish to pursue the proceedings before the Court. For the
Court’s assessment of the person’s standing to maintain the application on
behalf of a deceased, what is important is not whether the rights at issue are
transferable to the heirs but whether the heirs could in principle claim a
legitimate interest in requesting the Court to deal with the case on the basis
of the applicant’s wish to exercise his or her individual and personal right to
lodge an application with the Court (see Ergezen
v. Turkey, no. 73359/10, § 29, 8 April 2014). The Court has accepted that a
next of kin or an heir may in principle pursue the application, provided that
he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania
[GC], no. 47848/08, § 97, ECHR 2014). In this connection, the Court reiterates
that human rights cases before it generally have a moral dimension and persons
close to an applicant may thus have a legitimate interest in ensuring that
justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR
2000‑XII).
63. In view of the above, and taking into
account the circumstances of the present case, the Court accepts that the
second applicant’s daughter has a legitimate interest in pursuing the
application. It will therefore – at her request – continue dealing with
the case. For convenience, it will, however, continue to refer to Mr Renne
as the second applicant in the present judgment.
III. ALLEGED
VIOLATION OF ARTICLE 3 OF THE CONVENTION IN ITS SUBSTANTIVE ASPECT
64. The applicants submitted that during
their detention in the Asti Correctional facility in December 2004, they had
suffered acts of violence and ill-treatment which they considered as amounting to
torture. They relied on Article 3 of the Convention, which provides:
“No
one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
A. Admissibility
65. The Court notes that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The
parties’ submissions
(a) The
applicants
66. The applicants complained that they
had been subjected to various forms of ill-treatment during their detention in
the Asti correctional facility in December 2004.
67. The first applicant reiterated the assertion
that he had been kept in solitary confinement for more than twenty days, had
been stripped of his clothes and detained in a cell with no window panes in
winter, in Northern Italy, and that there had been no sink and neither covers
nor a mattress on the bed. He further stated that he had been subjected to
sleep, food and water deprivation as well as physical violence and verbal
abuse.
68. He argued that the intention
underlying the treatment was to punish and intimidate him, as the treatment
went well beyond security needs. This latter point was reinforced, in the first
applicant’s view, as the treatment was carried out against a background of
systemic ill-treatment existing in the correctional facility, whereby detainees
would be subjected to various forms of ill-treatment that prison authorities
and staff knew about but about which they remained indifferent.
69. Furthermore, he submitted that even
though many years had elapsed since the impugned events, he still suffered from
anxiety and depression and had to take medication.
70. The second applicant, drawing on the
reconstruction of events set out in the first-instance decision, described the
ill-treatment inflicted on him, which consisted of repeated physical violence,
including beatings and his hair being ripped out, as well as detention in a
solitary confinement cell without clothing for a number of days and with his
food being rationed.
71. As to the legal classification of the
treatment, both applicants reiterated that they had suffered acts of torture
within the meaning of Article 3 of the Convention.
(b) The
Government
72. The Government did not submit
specific observations on the substantive aspect of the complaint under Article
3.
2. The
Court’s assessment
(a) General
principles
73. The Court
refers to the general principles concerning the substantive limb of Article 3
as set out in Bouyid v. Belgium [GC],
no. 23380/09, § 81‑90, ECHR 2015 and, recently, in Bartesaghi Gallo and Others v. Italy,
nos. 12131/13 and 43390/13, § 111-113, 22 June 2017.
74. The Court reiterates, in particular,
that in determining whether a given form of ill-treatment should be classified
as torture, consideration must be given to the distinction, embodied in Article
3, between this notion and that of inhuman or degrading treatment. As noted in
previous cases, it appears that it was the intention that the Convention
should, by means of such a distinction, attach a special stigma to deliberate
inhuman treatment causing very serious and cruel suffering (see, amongst many
other authorities, Gäfgen v. Germany
[GC], no. 22978/05, § 90, ECHR 2010). In addition to the severity of the
treatment, there is a purposive element to torture, as recognised in the United
Nations Convention against Torture, which in Article 1 defines torture in terms
of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or
intimidating (see, amongst many other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC],
no. 39630/09, § 197, ECHR 2012).
(b) Application
of the general principles to the present case
(i) Establishment
of the facts
75. The Court
observes at the outset that the Asti District Court found that the impugned
events occurred in the manner described by the applicants during the course of
the domestic proceedings (see paragraphs 25-31 above). The Court sees no cogent reasons to call
such findings into question.
76. The Court further observes that the
Government did not contest the applicants’ factual submissions or deny that the
events as described by the applicants had occurred.
77. In view of the foregoing, and in the
light of all the documentary material in its possession, the Court finds it
established that the applicants were subjected to the treatment complained of.
(ii) Classification
of the treatment inflicted on the applicants
78. It remains to be determined whether
the impugned treatment can be said to have attained the minimum level of
severity to bring it within the scope of Article 3 and, if so, how it is to be
classified.
79. The Court will begin by assessing the
severity of the treatment to which the applicants were subjected. The Court
reiterates that, according to the findings of the domestic court, the first
applicant was subjected to repeated physical violence for nineteen days and the
second applicant for six days (see paragraph 27 above). With specific regard to the second
applicant, his medical records reveal that he sustained injuries and complained
about being in pain, and he was ultimately admitted to the hospital with a
fractured rib and widespread bruising (see paragraphs 28 and 51 above).
80. In addition to the physical suffering
the applicants must have endured as a consequence of the physical abuse, the
Court considers that the treatment may be regarded as having caused them
considerable fear, anguish and mental suffering. As an overarching
consideration, the Court is mindful of the fact that the treatment was
inflicted in the context of the applicants being in the custody of prison officers,
and thus already in a situation of vulnerability (see Bouyid, cited above, § 107). The applicants’ state of further
isolation due to their placement in the solitary confinement wing must have
intensified their fear, anxiety, and feelings of helplessness.
81. The Court once again notes that the
applicants were subjected to physical abuse at all hours of the day and night
for many consecutive days (see paragraph 27 above). Moreover, the physical abuse was
coupled with extremely serious “material” deprivations, which must have
inevitably accentuated their suffering. In this latter respect, the applicants
were subjected to deprivations and rationing of food and water, and were
detained in cells with limited or no access to sanitary facilities, appropriate
bedding, or heating. The applicants were further subjected to additional
gratuitous acts, such as depriving them of their clothing, which must have
entailed elements of humiliation and debasement (see, mutatis mutandis, Hellig
v. Germany, no. 20999/05, §§ 52-57, 7 July 2011).
82. In the light of the foregoing, the
Court considers that the treatment sustained by the applicants may be
characterised as “inhuman treatment causing very serious and cruel suffering”
for the purposes of Article 3 (see Al
Nashiri v. Poland, no. 28761/11, § 515, 24 July 2014).
83. In the Court’s view, the treatment
was deliberate and carried out in a premeditated and organised manner. In this
connection, the Court notes that the impugned treatment was not confined to one
particular moment, namely immediately following the fight between the
applicants and the prison officers. It has been clearly established that the
applicants endured repeated and sustained assaults and other forms of abuse and
deprivations over a number of days. In this connection, note should also be
taken of the conclusions reached by the domestic court, which found that the
applicants had been subjected not just to isolated acts of harassment and
abuse, but to what it defined as measures which had been put into practice in a
systematic manner (see paragraph 26 above).
84. The Court further considers that, for
the purposes of its assessment as to the deliberate nature of the treatment,
the context in which the treatment was inflicted is worthy of particular
scrutiny. The domestic court found evidence of the existence of a broader
pattern of abuse in the correctional facility at issue, which it labelled a
“generalised practice of ill‑treatment” (see paragraph 29 above). It
emerges from the domestic court’s findings that “problematic” detainees were
routinely exposed to punitive measures that exceeded the bounds of
permitted disciplinary or security measures, consisting of placement in solitary confinement cells which in
themselves were in a deplorable condition, and where they would be subjected to
physical violence and material deprivations. The domestic court highlighted the
existence of such a situation in the Asti prison beyond the events concerning
the applicants, and provided an account of the practices described above in the
text of the judgment (see paragraphs 29 - 31 above).
85. The foregoing considerations also
indicate the existence of a purposive element underlying the impugned
treatment, namely to punish the detainees, to enforce discipline and to deter
future disorderly behaviour in the correctional facility (see paragraphs 29 and 34 above).
(iii) Conclusion
86. In view of the above, the Court is
persuaded that the treatment to which the applicants were subjected attained
the level of severity required to bring the impugned conduct within the scope
of Article 3, and that it amounted to torture.
87. There has
accordingly been a violation of Article 3 of the Convention in its substantive
aspect.
IV. ALLEGED
VIOLATION OF ARTICLE 3 OF THE CONVENTION IN ITS PROCEDURAL ASPECT
88. The applicants complained that they
had suffered a further violation of Article 3 in that the penalty imposed on
those responsible for the acts of which they were complaining had been
inadequate owing, in particular, to the time-barring in the course of the
criminal proceedings. They emphasised that by failing to introduce the offence
of torture into the Italian legal framework and to provide for an appropriate
penalty for that offence, the State had failed to take the necessary steps to
prevent the ill-treatment which they had suffered.
89. As regards the alleged shortcomings
in the investigation deriving, in particular, from the absence of an offence of
torture in the Italian legal system, the applicants also relied on Article 13 of
the Convention, alone and in conjunction with Article 3. However, the Court
considers that it should examine the issue of the lack of an effective
investigation into the alleged ill-treatment solely under the procedural limb
of Article 3 of the Convention.
A. Admissibility
90. The Court notes that this complaint
is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The
parties’ submissions
(a) The
applicants
91. The applicants submitted that,
following the criminal proceedings, the first-instance court had recognised the
seriousness of the ill-treatment to which they had been subjected, but that
those responsible for that ill‑treatment had not been punished. This
occurred because the offences with which the prison officers had been charged
pursuant to the Italian Criminal Code had become time-barred during the
criminal proceedings.
92. They submitted that the Italian legal
framework had proved to be inadequate for the purposes of punishing acts of
torture and providing the necessary deterrent effect to prevent similar
violations from occurring in the future. They contended that Italy must
establish a legal framework capable of protecting the rights enshrined in
Article 3 of the Convention, and criticised the Italian State for having failed
to classify as offences all forms of ill‑treatment which constitute
torture or inhuman or degrading treatment. This was, moreover, contrary to
Italy’s international commitments, in particular those arising from the
ratification of the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
93. They thus concluded that the State
had not taken the necessary steps to prevent the acts of torture which they had
suffered and to criminalise them in an appropriate manner.
94. The second applicant observed, in
particular, that the impossibility of punishing those responsible for acts of
torture as a result of the shortcomings in the Italian system runs the risk of
supporting a practices that are widespread and nurturing a system that
tolerates impunity.
95. As
regards disciplinary proceedings against the prison officers, the applicants
acknowledged that disciplinary measures had been taken against them. However,
they observed that the evidentiary material submitted by the Government reveals
that the officers were not suspended from duty during the investigation and the
criminal proceedings.
96. In the light of the foregoing, the
applicants alleged that the Italian State had failed to comply with the
requirements of Article 3 of the Convention, namely to conduct an effective
investigation into the acts of torture to which they had been subjected and to
mete out adequate punishment to the perpetrators.
(b) The
Government
97. The Government observed that the
impugned conduct had been closely examined by the Asti District Court, which
had recognised the responsibility of the prison officers.
98. The Government argued that both the
judicial and disciplinary proceedings against the officers, which had been
aimed at uncovering the full extent of the treatment inflicted on the
applicants during their detention, had demonstrated the Italian authorities’ willingness
to identify and punish the officers responsible for the impugned acts
notwithstanding the time‑barring of the criminal proceedings.
99. They contested the applicants’
contentions regarding disciplinary sanctions. In this respect, the Government
stated that the imposition of disciplinary sanctions occurs via proceedings
which are subject to procedural guarantees that are comparable to those applied
in criminal proceedings. The Government further observed that in the event of
criminal proceedings being conducted in parallel with disciplinary proceedings,
any final assessment as to the application of disciplinary sanctions and the
choice of the sanction concerned must be postponed until the conclusion of the
criminal proceedings. The Government pointed out that, in order to answer for
the acts perpetrated against the applicants, the prison officers had been held
to account before domestic criminal courts and administrative bodies that are
known for their seriousness and impartiality, and their responsibility for the
impugned events had been established in both sets of proceedings.
(c) The
third-party interveners: the Nonviolent Radical Party, Transnational and
Transparty, the association “Non c’è pace senza giustizia”, and the Italian
Radicals (the former “Italian Radical Party”)
100. The third parties took the view that
Italy had failed to comply with the international obligations arising from the
United Nations Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. They invited the Court to take account of the fact
that Italy had ratified the latter instrument in 1989, thereby undertaking to
introduce the offence of torture into the Italian legal system. Notwithstanding
this undertaking, twenty-five years following the ratification, no legislation
criminalising torture had been adopted.
101. They also provided a comparative
overview of the criminalisation of torture in a number of European systems.
102. The third parties submitted that, in
the absence of a specific offence under Italian domestic law, the offences
included in the Criminal Code did not enable acts of torture to be adequately
criminalised, thereby precluding the imposition of appropriate penalties
proportionate to the seriousness of the acts in question.
103. The third parties further underlined
that the Cestaro judgment (cited
above) had urged Italy to adopt general measures to address a structural
deficiency. They consequently stressed the need to fill a legislative void
insofar as the criminalisation of torture and inhuman or degrading treatment is
concerned.
104. Lastly, as regards the disciplinary
proceedings, the third parties reiterated, with reference, to the Court’s
judgments Gäfgen v. Germany, cited
above, and Saba v. Italy, no.
36629/10, 1 July 2014, that where State agents have been charged with offences
involving ill-treatment, they should be suspended from duty while being
investigated or tried.
2. The
Court’s assessment
(a) General
principles
105. Where
an individual makes an arguable claim that he has been ill-treated by the State
authorities, in breach of Article 3, that provision, read in conjunction with
the State’s general duty under Article 1 of the Convention, requires by
implication that there should be an effective official investigation. The
general principles which apply in determining whether such an investigation was
effective for the purposes of Article 3 were restated by the Court in Cestaro (cited above, §§ 205-212).
(b) Application
of the general principles to the present case
106. The Court notes
at the outset that five prison officers were prosecuted and tried in connection
with the impugned events, although ultimately no one was convicted on the
grounds of the ill-treatment inflicted on the applicants (see paragraphs 24 to 35 above). One officer was acquitted of all charges
and the offences for which the remaining officers were prosecuted were all
declared statute-barred in the course of the first-instance proceedings (see
paragraph 35 above).
107. In the Court’s view, and having
considered all the material available to it, the latter outcome cannot be
attributable to delays or negligence on the part of the domestic judicial
authorities. While the Court expresses some concern over the duration of the
criminal investigation, it notes that the applicants neither complained about
nor provided any evidence indicating unjustified delays on the part of the
investigation authorities. In any event, due to its findings set out in
paragraph 111 below, the Court does not find it necessary to
enquire whether the investigation can be considered as having been conducted
with reasonable expedition.
108. As to the conduct of the domestic
proceedings, the Court takes the view that the domestic court cannot be
criticised for having wrongly assessed the seriousness of the charges against
the accused (see, in contrast, Saba,
cited above, § 80) or for having used the legislative and punitive provisions
of domestic law to prevent the conviction of the prosecuted State agents (see,
in contrast, Zeynep Özcan v. Turkey,
no. 45906/99, § 43, 20 February 2007).
109. The Court considers, rather, that the
domestic court took a very firm stance and in no way sought to justify or
downplay the impugned conduct. The domestic court made a genuine effort to
establish the facts and to identify the individuals responsible for the
treatment inflicted on the applicants. It cannot therefore be denied that the
court at issue submitted the case before it to a “scrupulous examination”, as
required under Article 3 of the Convention (see Cestaro, cited above, § 206).
110. However, the domestic court concluded
that, under Italian law, at the time of the decision there existed no legal
provision that would allow it to classify the impugned treatment as torture
(see paragraph 33 above). The court thus had to turn to other,
existing offences, namely the provisions of the Criminal Code relating to abuse
of authority against detained persons and the infliction of bodily harm (see
paragraph 35 above). The latter offences appear, in the
Court’s view, incapable of addressing the full range of issues ensuing from the
acts of torture which the applicants suffered (see Myumyun v. Bulgaria, no. 67258/13, § 77, 3 November 2015).
Moreover, they were also subject to statutory limitation periods, a circumstance
which in itself sits uneasily with the Court’s case‑law concerning
torture or ill‑treatment inflicted by state agents (see Cestaro, cited above, § 208 and Abdülsamet Yaman v. Turkey, no.
32446/96, § 55, 2 November 2004).
111. Based
on the foregoing considerations, the Court considers that the core of the
problem resides not in the conduct of the domestic judicial authorities but
rather in a systemic deficiency which was characteristic of the Italian
criminal law framework at the material time, as had already been identified in Cestaro (cited above, § 225). In
the present case, this lacuna in the legal system, and in particular the
absence of provisions penalising the practices referred to in Article 3 and,
where appropriate, providing for the imposition of adequate penalties, rendered
the domestic courts ill-equipped to perform an essential function, namely that
of ensuring that treatment contrary to Article 3 perpetrated by State agents
does not go unpunished. This, in turn, may be viewed as having had the broader
effect of weakening the deterrent power of the judicial system and the vital
role it ought to be able to play in upholding the prohibition of torture.
112. The Court is therefore led to the
conclusion that the criminal legislation which was applied in the instant case
proved, as it did in Cestaro (cited
above, § 225), both inadequate in terms of its capacity to punish the acts of
torture in issue and devoid of any deterrent effect capable of preventing
similar future violations of Article 3.
113. Turning to the issue of disciplinary
measures, the Court acknowledges the Government’s observations to the effect
that disciplinary proceedings were conducted against four prison officers
following the conclusion of the criminal proceedings. In this respect, the
Court does not question the serious scrutiny to which the prison officers’
actions were subjected to by the disciplinary bodies and notes that
disciplinary measures were imposed as a consequence (see paragraph 44 above).
114. Whilst acknowledging the importance
of disciplinary measures – as it has often recognised in its case‑law
(see Gäfgen, cited above, § 121,
and Saba, cited above, § 76) – the
Court nevertheless considers that the imposition of disciplinary sanctions
alone cannot be considered an adequate response by the authorities in cases
involving acts in breach of one of the core rights of the Convention as serious
as the present ones. In this respect, it reiterates that only a criminal
prosecution is capable of providing the preventive effect and dissuasive force
required to fulfil the requirements of Article 3.
115. Moreover, it is apparent from the
material in the case file that the officers were not suspended from duty during
the investigation or trial (see paragraph 45 above). The Court has frequently held that, in
cases where State agents have been charged with offences involving ill‑treatment,
they should be suspended from duty while being investigated or tried (see Cestaro, cited above, § 210). The
Court stresses the particular significance of such measures in a correctional
context. In this connection, it emphasises the importance of safeguards
ensuring that persons who may have been the victims of ill-treatment by State
officials in custody ‒ who are already in a state of particular
vulnerability ‒ are not discouraged, whether directly or indirectly, from
lodging complaints or reporting ill-treatment.
116. Having regard
to the foregoing findings, the Court concludes that there has been a violation
of Article 3 in its procedural limb.
V. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
117. Article 41 of the Convention provides:
“If
the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party.”
A. Damage
118. In respect of non-pecuniary damage
each applicant claimed 100,000 euros (EUR) or any other amount the Court should
find appropriate.
119. The Government contested that amount.
120. Having regard to the seriousness of
the violations of the Convention of which the applicants were victims, and
ruling on an equitable basis, the Court finds it appropriate to award each
applicant EUR 80,000 in respect of non-pecuniary damage.
B. Costs
and expenses
121. The applicants also claimed EUR
16,000 each for the costs and expenses incurred before the Court.
122. The Government contested that amount.
123. According to the Court’s case-law, an
applicant is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily incurred and
are reasonable as to quantum. In the present case, regard being had to the
documents in its possession, the Court considers it reasonable to award the sum
of EUR 8,000 each.
C. Default
interest
124. The Court considers it appropriate
that the default interest rate should be based on the marginal lending rate of
the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE
COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of
Article 3 of the Convention in its substantive aspect in that the applicants
have been subjected to torture;
4. Holds that there has been a violation of
Article 3 of the Convention in its procedural aspect;
5. Holds
(a) that
the respondent State is to pay each of the applicants, within three months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR
80,000 (eighty thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amounts at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points;
6. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done
in English, and notified in writing on 26 October 2017, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Abel Campos Linos-Alexandre
Sicilianos
Registrar President