VOTTARI AND DI GIACOMO v. ITALY

FIRST SECTION

DECISION

Applications nos. 9231/22 and 55641/22
Sebastiano VOTTARI against Italy
and Giovanni DI GIACOMO against Italy

The European Court of Human Rights (First Section), sitting on 2 July 2024 as a Committee composed of:

 Ivana Jelić, President,
 Gilberto Felici,
 Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the applications 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 Sebastiano Vottari (“the first applicant”) and Mr Giovanni Di Giacomo (“the second applicant”), whose details are set out in the appended table, on the various dates indicated therein;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the renewal of the special prison regime provided by section 41 bis of Law no. 354 of 26 July 1975 (Prison Administration Act), under which the applicants are detained.

2.  On 27 November 2019 and on 9 June 2020, the Minister of Justice issued orders renewing, for two years, the application of the special prison regime as regards the first and the second applicants respectively. Their appeal (reclamo) against the order was dismissed by the Rome Court responsible for the execution of sentences and the Court of Cassation in separate sets of proceedings as detailed in the appended table.

3.  The first applicant stated that he was detained under the special regime without interruption since August 2007. The second applicant stated that, although he was detained without interruption since 21 December 1991, the special prison regime was not applied continuously. Rather, the special prison regime was applied between 20 July 1992 and 30 January 1998, between 21 May 2014 and 28 November 2014 and since 17 June 2016. Therefore, at the time of the extension of the 41 bis regime by the Minister of justice, the first and the second applicants had been detained under the 41 bis regime for approximately twelve years and four years, respectively.

4.  The applicants complained under Articles 3, 6 and 13 that the prolonged application of the special prison regime, and in particular its renewal based on what they considered to be insufficient, stereotyped reasoning, amounted to inhuman and degrading treatment.

5.  The first applicant also complained, under Article 7, of the retrospective application of certain amendments to the mechanism of renewal of the special prison regime and the second applicant complained under the same provision of the retrospective application of the special prison regime to offences committed before the entry into force of section 41 bis of the Prison Administration Act.

6.  Furthermore, the first applicant complained under Article 14 of the Convention that his co-perpetrators were not detained under the special prison regime and, under Article 2 of Protocol No. 1, that he could not complete a traineeship outside prison to graduate. The second applicant complained under Article 6 of the Convention about the limited scope of the grounds of appeal admissible before the Court of Cassation.

THE COURT’S ASSESSMENT

7.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

8.  The Court being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the applicants’ complaint, lodged under Articles 3, 6, and 13 of the Convention, falls to be examined solely under Article 3.

9.  The main features of the 41 bis special prison regime have been outlined in Provenzano v. Italy, no. 55080/13, §§ 83-90, 25 October 2018.

10.  The Court has already accepted that, generally speaking, the extended application of certain restrictions may place a prisoner in a situation that could amount to inhuman or degrading treatment. However, it cannot define a precise length of time beyond which such a situation attains the minimum threshold of severity required to fall within the scope of Article 3. The Court has consistently held that, when assessing whether or not the extended application of certain restrictions under the section 41 bis special prison regime attains the minimum threshold of severity required to fall within the scope of Article 3, the length of time must be examined in the light of the circumstances of each case, which entails, inter alia, ascertaining whether the renewal or extension of the impugned restrictions was justified or not (see, amongst many other authorities Enea v. Italy [GC], no. 74912/01, § 64, ECHR 2009).

11.  The Court observes that the national authorities’ decisions to renew the imposition of the measures do not appear to be based on what can be described as “stereotyped” reasoning. Rather, the authorities provided detailed, individualised accounts, based on evidence provided by different State bodies and agencies, of, amongst other things, the applicants’ criminal history, their convictions for serious crimes, their leadership role within the respective “mafia-clan” (cosca), the support networks which they relied on, and the continuing existence and current state of activity of the criminal organisations in Italy and abroad. The Rome Court responsible for the execution of sentences, which was called upon to review the renewal orders, highlighted the applicants’ leadership within the respective mafia-clan as well as the danger they posed to society.

12.  In particular, as regards the first applicant, it emerges from the documents on file that the Minister of Justice issued the renewal order taking into account, among other things, the persisting activity of the mafia-clan to which the applicant belonged and the fact that the components of the clan were linked by strong family-type relationships. The order highlighted that the applicant’s brother and another leader of the clan, who had both been convicted of serious mafia-type offences with final judgments, were fugitives on the run from the authorities (latitanti) and that the clan had assisted them for many years. It also reported that, during his detention, the applicant had maintained regular contacts with the clan and was considered a leader of the organisation and main point of reference for its members despite the application of the special regime. In this respect, the Minister of Justice relied on certain visits the applicant received in detention immediately after the arrest of other members of the organisation between 2016 and 2018 and the cryptic language used in correspondence intercepted by the personnel of the detention facility where the applicant was detained.

13.  Furthermore, the Court notes that in the appeal proceedings against the renewal order, the Rome Court responsible for the execution of sentences conducted a fresh assessment of the information provided by the investigative authorities such as the Anti-Mafia Investigations Directorate, as summarised in the renewal order, as well as developments in relevant criminal proceedings that occurred after the renewal order had been issued. The Rome court took into account the arguments raised by the first applicant in respect of his allegedly minor role within the organisation and the alleged mistakes committed by the domestic authorities in seizing and interpreting his correspondence. However, it dismissed those arguments with reasoning that does not appear manifestly arbitrary or unreasonable.

14.  With regard to the second applicant, the Court notes that the Minister of Justice renewed the special prison regime by referring, inter alia, to the persistent activity of the mafia-clan to which he belonged, evidence of which could be found in recent offences committed within the context of the clan’s activities. The renewal order also highlighted that, at least until 2014, intercepted conversations during visiting hours had revealed that the second applicant had given instructions to his brothers on the pursuit of the activities of the criminal organisation, had ordered the commission of murders, and had requested to be informed with coded language when the plans were ready to be enforced. The order further cited evidence from several sets of criminal proceedings disclosing that the second applicant had been financially assisted by his clan during his detention and highlighted that in 2015 he had been convicted to an additional term of twelve years’ imprisonment for his participation in a mafia-type organisation.

15.  Also in respect of the second applicant, the Court notes that the Rome Court responsible for the execution of sentences, in its assessment of the evidence in its possession, including the elements cited in the previous paragraph, found that there was a real and immediate risk that the applicant would maintain contacts with the criminal organisation should he be placed in an ordinary prison regime. On this basis, and bearing in mind, amongst other things, the high degree of dangerousness of the criminal organisation to which the applicant belonged, renewing the application of the special regime had been fully justified in the interests of safeguarding public order and public safety.

16.  The Court further observes that neither of the applicants submitted evidence to the Court which would lead it to conclude that the extension of the restrictions entailed by the special prison regime was patently unjustified (compare Enea, cited above, § 65; Gallico v. Italy, no. 53723/00, § 22, 28 June 2005; and Argenti v. Italy, no. 56317/00, § 22, 10 November 2005). They have also not submitted any cogent element which could cast legitimate doubts on their ability to maintain contacts with the respective criminal organisations (compare and contrast Provenzano, cited above, § 151).

17.  Lastly, in its assessment of whether or not the extended application of the section 41 bis special prison regime meets the threshold required by Article 3, the Court has also considered the physical or psychological consequences allegedly caused by the prolonged application of the special regime and the existence of evidence thereof (compare Mole v. Italy, no. 24421/03, §§ 18-19, 12 January 2010; Zara v. Italy, no. 24424/03, § 16, 20 January 2009; and De Pace v. Italy, no. 22728/03, §§ 34-35, 17 July 2008). The Court notes that the first applicant did not file any relevant document in this regard, while the second applicant filed a report drafted by a psychologist in the context of a psychological support program within the correctional facility. The report describes the applicant’s psychological condition as characterised primarily by a generalised state of anxiety, sleep/wake cycle alterations, and altered eating attitudes. It recommends, in a general manner, that it would be useful to consider the possibility of a more “adequate” prison regime ensuring greater dignity and self-determination. On the basis of this document alone the Court finds that it has insufficient elements to conclude that the extended application of the special regime had direct, serious psychological consequences on the second applicant.

18.  In light of the above, the Court finds that the extended application of the special prison regime under Article 41 bis of the Prison Administration Act did not attain the minimum level of severity required by Article 3 in the present cases. Therefore, this complaint must be rejected as manifestly ill‑founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

19.  In respect of the complaints raised under Article 7, the Court has acknowledged the purely preventive and security – rather than punitive – purposes of the special prison regime provided by section 41 bis of the Prison Administration Act (see Provenzano, cited above, § 150) and its aim to sever contact between detainees and their criminal networks. In particular, it may impose restrictions on visits and correspondence, prohibit the use of the telephone, limit to no more than two hours the time devoted to outdoor activities to be spent in groups of no more than four persons, limit the sums of money and parcels to be received or sent out and suspend the right to participate in elections for prisoners’ representatives or to be elected as a representative. None of the abovementioned restrictions affect the scope of the penalty imposed by domestic courts but, rather, concern the manner of execution of the sentence and as such do not fall within the scope of Article 7 § 1 in fine (see Del Río Prada v. Spain [GC], no. 42750/09, § 89, ECHR 2013).

20.  Against this background, the Court finds that the complaints under Article 7 of both applicants are incompatible ratione materiae with the provisions of the Convention. The Court thus holds that they must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4.

21.  The applicants also raised other complaints under various Convention provisions (see paragraph 6 above). The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

22.  It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 5 September 2024.

 Liv Tigerstedt Ivana Jelić
 Deputy Registrar President

APPENDIX