Italy

1. National context

1.1 Relevant statistical information

The Italian prison population stands at 52,636 (of which the female population is 2,150), out of the general population of 60,795,612.

The Italian prison system consists of 198 institutions. Those are divided into “case circondariali” and “case di reclusione”. “Case circondariali” are prisons holding those in pre-trial detention and short-term sentenced prisoners (usually up to three years). In 2014, there were 156 “case circondariali” accommodating 21,759 prisoners on remand and 28,662 convicted prisoners. “Case di reclusione” are prisons for long term-sentenced prisoners. In 2014, there were 42 of those, accommodating 992 prisoners on remand and 9,649 sentenced prisoners.

The protection of prisoners’ rights is provided for by the Italian Penitentiary law (law 354/1975) which established the Supervisory Court (“Tribunale di Sorveglianza”) as the only judicial authority with competence over the protection of prisoners’ rights.

Before the Torreggiani pilot judgment against Italy, there was only one case in which a prisoner could appeal to the Supervisory Court against a prison authority’s decision, namely the violations of the norms concerning the disciplinary sanctions (Article 69 of the Penitentiary Law).

Now a new set of remedies has been introduced by the Italian legislator, in line with the requirements of the ECtHR, namely a preventive remedy (art. 35 bis, law 354/1975) and a compensatory remedy (art. 35 ter, law 354/1975) in cases of violations of Article 3 of the ECHR.

1.2 Main problems within the penitentiary system, in particular from the point of view of international bodies

ECtHR:

The main ECtHR case law concerning Italy, related to the protection of prisoners’ rights, has – in the last decade – covered prison overcrowding and prison conditions.

Before then, the Court had examined the situation of the Italian prison system in connection with ill-treatment perpetrated by police officers in prison in the case Labita v. Italy. This judgment raised the issue of a persistent practice of systematic ill-treatment (namely slapping, squeezing of testicles, beatings, as well as insults and intimidation) and the slow and ineffective investigation of ill-treatment by the Italian government.

In relation to overcrowding, since the outlining of the deleterious prison conditions in the Sulejmanovic v. Italy judgment, and up until the enactment (in the Torreggiani v. Italy case) of a Pilot Judgment Procedure (PJP), the Strasbourg Court has criticised the general prison situation in Italy and the lack of an effective solution to the problem. As a consequence of the Pilot Judgment Procedure, the Italian Government has put in place a series of measures, focusing on the set of preventive and compensatory remedies recommended by the Court as the first step in order to redesign the penitentiary system to protect the prisoners’ fundamental rights.

Another important issue covered by the ECtHR is the prisoners’ right to vote and the disenfranchisement practices around Europe. The Italian context has been the subject of a leading case on the matter, the Grand Chamber judgment in Scoppola n.3 v. Italy, which – while not resulting in the condemnation of the practice in Italy, was nonetheless pivotal in the shaping of the Strasbourg case law.

CPT:

The CPT has carried out six periodic visits to Italy (in 1992, 1995, 2000, 2004, 2008 and 2012) as well as four ad hoc visits (in 1996, 2006, 2009 and 2010). Except for the report on the 2010 visit, all visit reports and related Government responses have been published on the CPT’s website: http://www.cpt.coe.int/en/states/ita.htm

Next visit is scheduled for 2016 (http://www.cpt.coe.int/en/visits/2015-03-30-eng.htm).

Significantly, the last visit (from 13 to 25 May 2012) took place after the Sulejmanovic judgment and immediately before the Torreggiani case. The issue of prison overcrowding was therefore at the core of the CPT report. The question for the delegation was to assess whether the remedies put in place by the Italian government to solve the systematic and persistent problem highlighted by the ECtHR have been effective.

The main issues raised by the different visits concerned:

  1. Overcrowding;
  2. Ill-treatment;
  3. Condition of detention of the general prison population;
  4. Prisoners subjected to the “41-bis” regime (this severe regime exclusively applies to prisoners who have been convicted of or are suspected of having committed an offence in connection with mafia-type, terrorist or subversive organisations, and who are considered to maintain links with such organisations);
  5. Health-care services;
  6. Other issues:
    1. mothers with children in prison;
    2. staff;
    3. contact with the outside world;
    4. discipline;
    5. prisoners subject to Section 72 of the Penal Code (solitary confinement);

1.3 The situation before the reform

The current Italian system of the protection of prisoners’ rights has been recently reformed following important decisions of the European Court of Human Rights. For a full understanding of the new proceedings, the powers of the bodies and the effectiveness of the remedies, a brief analysis of the obligations imposed by the Court and their effects upon the Italian legislation and legal system appears necessary.

On the 8th January 2013, the European Court of Human Rights, acknowledging the endemic and persistent overcrowding situation in Italy, decided to enact a Pilot Judgment Procedure in the Torreggiani v. Italy case. This case followed and expanded on the findings of the Court in the previous Sulejmanovic v. Italy case. The Sulejmanovic judgment was final in 2009 and a first set of measures was presented in an action plan of 29th June 2012. These measures included changes to the law and a programme to build new prisons. Despite this plan, the overcrowding situation in Italy remained.

The judgment, Torreggiani and Others v. Italy, highlighted the structural and systemic nature of overcrowding in Italy and, in view of the growing number of persons potentially concerned and of the judgments finding a violation liable to result from the applications in question, the Court decided to apply a pilot judgment procedure calling on the Italian authorities to put in place a combination of remedies providing redress in respect of violations of the Convention resulting from overcrowding in prisons.

1.3.1 Remedies before the reform

The system of remedies existing in Italy was judged ineffective by the ECtHR. The Italian Penitentiary Law provided few ad hoc remedies for the protection of prisoners’ rights (art. 4). Traditionally, the only judicial authority competent for the protection of prisoners’ rights in Italy is the Supervisory Court (“Tribunale di Sorveglianza”)[1].

According to the Italian Penitentiary Law, the Supervisory Court has the special and exclusive jurisdiction to decide upon all cases – with only few exceptions – in which a decision of the prison administration infringes upon prisoners’ rights (art. 35 of the Penitentiary Law). It’s important to highlight that this norm excluded the jurisdiction of the Administrative Courts for any prisoners’ claims. In the Italian system, Administrative Courts have the general duty to assess the lawfulness of administrative decisions and have the power to annul them when those decisions are defective for lack of jurisdiction, breach of law or abuse of power. The Penitentiary Law bestow the power to assess the lawfulness of prison administration decisions to the Supervisory Court. Unfortunately, Supervisory Courts lack many of the powers of the Administrative Courts.

Additionally, Supervisory Courts used to be competent for the protection of prisoners’ rights in the field of prison labour (Art. 69 of the Penitentiary law). A Constitutional Court decision (No. 341 of 2006) established the unconstitutionality of Article 69 and affirmed the jurisdiction of the Ordinary Courts in the field of prison labour. As we will discuss further, the reform following the ECtHR’s Torreggiani decision could have an impact on this issue.

1.3.2 Procedure and powers of the Court before the reform

Article 69 of the Penitentiary Law assigns to the Supervisory Court the duty to protect prisoners’ rights and the power to give mandatory orders to prison authorities in cases where a violation occurred. There has been a long-standing dispute about the judicial nature of the procedure needed to complain about a prison authority’s violation and about the effectiveness of the powers of the judge.

Before the Torreggiani judgment, there were only two cases in which a prisoner could bring a case to the Supervisory Court against a prison authority’s decision, namely violations of the norms concerning the disciplinary sanctions or the prison labour system (Article 69 of the Penitentiary Law). In these cases, according to Article 14 ter of the Penitentiary Law, the procedure was as follows: the prisoner could apply personally (without the need of a legal assistance) within 10 days from the violation and the Court had to decide within the following 10 days. Neither the prisoner, nor the prison authority were allowed to appear before the Court and were only allowed to send written pleadings. The chamber hearing only envisaged the participation of the prisoner’s attorney and of the prosecutor.

The law did not provide for recourse to a judicial hearing procedure in cases of other violations. On the basis of Article 35 of the Penitentiary Law, inmates could merely send non-judicial claims to the Court as they were able to communicate with the Judge with an oral or written complaint contained “in a sealed envelope”.

This gap in the system of protection of prisoner’s rights had been progressively filled by the national case law that had gradually expanded the scope of the judicial appeal (art. 14 ter) to all violations of prisoners’ rights, beyond the ones concerning disciplinary power and prison labour rules.

Firstly, the Constitutional Court, with its judgment no. 212/1997, recognized that the generic claim provided for by Article 35 had to be considered an actual judicial appeal. Subsequently, the same Constitutional Court, in its decision no. 26/1999, urged the legislator to expand the judicial appeal provided for in the field of disciplinary measures and prison labour in Articles 69 and 14-ter, to all cases in which a detainee claimed the violation of a right.

In light of the lack of a legislative reform capable of filling this gap, a decision of the Corte di Cassazione (no. 25079 of the 26th February 2003) finally recognized the right of prisoners to complain about any violation of their rights, using the procedure outlined in Articles 69 and 14ter. Thus, the generic complaint (Article 35), implemented using the procedure provided for by Articles 69, 71 and 14-ter, became a general remedy and a pivotal norm of the Italian system – a general remedy for all cases of violations not provided for with a specific legal remedy elsewhere in the law.

For a long time the Supervisory Courts’ case law in the field of prisoners’ rights was based on the principle that the Courts’ decisions or orders were not binding for prison authorities, they were considered merely advisory. This interpretation of powers frustrated the potential effectiveness of the Supervisory Courts’ decisions and discouraged prisoners from complaining about violations of their rights.

In 2009, a Constitutional Court’s judgment (no. 266/2009) made clear that the decisions of Supervisory Courts are binding since they are judicial decisions and that prison authorities have the duty to implement them. However this case didn’t resolve the effectiveness issue, because Supervisory Courts still lacked the power to annul a prison authority’s decision violating a prisoner’s right and the power to appoint an ad acta Commissioner in all cases in which the prison authority failed to eliminate the violation.

2. Bodies in charge of the prisoners’ complaints

On 23rd December 2013, a new general judicial remedy for the protection of prisoner’s rights was enacted. Under the pressure of the ECtHR, the Italian legislator adopted a bill[2] aiming at ensuring the right of prisoners to appeal to a Court in case of violations of their rights, thus covering the issue of prison overcrowding.

The law contained a wide range of norms, in order to provide an effective remedy for prisoners’ rights protection (the provision of a national ombudsman and a new judicial procedural remedy to apply to Supervisory Courts) and to deal with overcrowding (e.g. the reform of the Italian law on drugs in order to decrease sanctions and inhibit pre-trial custody for minor offences and a temporary expansion of day release for most sentences).

2.1 Judicial Bodies

The judicial authority in charge of the protection of prisoners’ rights is the Supervisory Court, competent in all the fields provided for by Article 69 (except for prison labour claims that have to be addressed to ordinary Labour Courts).

The Supervisory Judge (monocratic organ) has:

  1. The duty to supervise the organization of prisons and to advise the Ministry of Justice;
  2. The power to decide on the application of security measures for offenders considered “socially dangerous”, such as mentally disordered individuals unfit to plead; deportation of convicted foreigners at the end of their sentence;
  3. To supervise and approve the treatment program provided by prison staff;
  4. To ensure the respect for prisoners’ rights;
  5. To apply measures alternative to imprisonment (such as probation, home detention, etc);
  6. To supervise the correct application by prison authorities of disciplinary sanctions against prisoners;

2.2 Judicial Bodies competent for claims concerning prison labour

Until 2006, the Supervisory Courts had jurisdiction over the protection of prisoners’ rights in the field of prison labour (Art. 69 of Penitentiary law). A Constitutional Court decision (no. 341/2006) ruled on the unconstitutionality of Article 69 and attributed that jurisdiction to the ordinary Courts. The decision of the Court was based on that fact that the procedure of the Supervisory Court didn’t guarantee a proper litigation since not all counterparts had the right to appear in front of the judge:

  1. According to the Court the procedure provided for by the Penitentiary Law, Article 14.ter, allows the inmates to be present, but prison authorities can just send a written pleading and a private employer is not allowed to attend or to submit any written pleading. The constitutional right to defence (Article 24 of the Italian Constitution) of the employer was not guaranteed.
  2. For the same reasons the constitutional right to defence of the detainees was not guaranteed because all the procedure was mainly based on written pleadings without a proper trial as envisaged in Article 24 of the Constitution.

The Constitutional Court’s decision has made it much more complicated to access to a Court in cases of violation of prison labour rules. Before the decision, working prisoners could apply directly to the Supervisory Court, using a very simple procedure: without the need of a lawyer and with the decision arriving within 6 months/1 year. Following the Constitutional Court’s decision, now the prisoner needs to be assisted by an attorney and the ordinary labour law trial lasts on average 2 years, thus most of the prisoners are discouraged by the length and the costs of the procedure.

The introduction of a general preventive remedy (Article 35 bis) for the protection of prisoner’s rights could affect the previously detailed system of working prisoners’ protection. Indeed, the Constitutional Court decision was mainly based on the reasoning that the Penitentiary Law didn’t provide for a proper trial and respect of the right to defence of the trial counterparts (both employer and employees). Since the new preventive remedy has solved those problems, giving to both the employer and the employee the possibility of taking part in the proceedings, the jurisdiction could be given to the Supervisory Court. It’s a controversial issue, that could have both positive and negative consequences. On the one hand, the Supervisory Court would now have an important preventive remedy, for instance it would have the power to annul prison authorities’ decisions concerning prison labour. In that case, prisoners would have an effective remedy, faster and less expensive than the one provided by Ordinary Courts. On the other hand, the Supervisory Court still lacks a general compensatory remedy for the violations of prison labour rules. Therefore the Supervisory Court couldn’t provide an effective remedy every time a violation of the rules, e.g. concerning a salary, [3] is alleged.

2.3 Non-judicial bodies: the role of the Ombudsmen and NGOs

The Italian legal system recognized the role of Ombudsmen only in 2008. The Ombudsmen have been organized as regional and local organizations and they have lacked effective powers for a long time. Only very recently they have acquired the right to visit the prisons without prior authorization (art. 68 of Penitentiary Law) and prisoners have the right to ask for a meeting and to send letters (art. 18) or to file a claim to the Ombudsmen (art. 35). However, the Ombudsmen still lack powers to conduct investigations or inspections, and have no access to prisoners’ files. Neither can they appeal to the Court. Most Ombudsmen use their limited powers to raise public awareness and to publicly denounce rights violations. They can have a role in urging and mediating with penitentiary administration in order to negotiate solution to difficult cases.

Italy ratified the OPCAT in April 2013 and consequently passed a Decree (Decree NO. 146 23.12.2013), establishing the office of the National Ombudsman for prisoners’ rights. The National Ombudsman is a collegiate body, composed of one chairman and two members, appointed for a term of 5 years, working without any remuneration but with a reimbursement of expenses. The President of the Republic chooses the Ombudsmen, but the nomination comes from the Council of Ministers. The office of the Ombudsman is a the department of the Ministry of Justice and its staff comprises of personnel of this department. The National Ombudsman and the other two members of the office have just been appointed in April 2016, but are still not operational, since the operational protocols of competencies, powers and prerogatives are still lacking. The lack of remuneration and of an autonomous office and staff potentially affects the independence of the body. It’s important to underline that the law has established no role, within the remedies’ procedure, for the National Ombudsman.

The Italian legal system for prisoners’ rights protection has never recognized any role of NGOs in litigation. As a consequence, NGOs aren’t entitled to petition the Supervisory Court and cannot be called to testify before it. Also, no reports provided by NGOs have ever been used by Courts in any cases. Nonetheless, NGOs report criminal cases, where inmates were victims of a crime (ill treatment by prison agents), in which NGOs involved in prisoners’ rights protection (Altro Diritto and Antigone) have been allowed to submit a civil action against the perpetrator.

3. Remedies

3.1 Preventive remedy (Article 35 bis of the Italian Penitentiary Law)

On 23rd December 2013, a new general judicial remedy for the protection of prisoner’s rights was enacted. Under the pressure of the ECtHR, the Italian legislator adopted a bill[4] aimed at ensuring the right of prisoners to apply to a Court in cases of violation of their rights, thus covering the issue of prison overcrowding.

3.1.1 Accessibility of remedy

Even if the Penitentiary law doesn’t explicitly define the categories of prisoners covered by the protection of art. 35 and art. 35 bis, we can consider that those Articles covers both convicted prisoners and prisoners on remand, since art. 35 and art. 35 bis generically refer to “prisoners”. Furthermore, even if prisoners on remand can’t receive a treatment program they can still ask to be admitted to prison labour and educational programs, consequently they can apply to the Supervisory Court regarding any violations concerning these issues.

The preventive remedy provided for by Article 35 bis seems to protect all prisoners, including mentally ill prisoners of psychiatric hospitals, since it generically refers to “detainees”, instead of “convicted prisoners” (term that would have excluded the mentally ill prisoners).

3.1.1.1 Simplicity

A prisoner can appeal directly, at any time and without any time limit, to the competent Supervisory Court claiming a violation of a norm of the Penitentiary Law by the prison authorities. The damage deriving from the violation has to be ongoing at the time of the claim. Only in case of a complaint concerning disciplinary measures, the prisoner has to apply within 10 days from the communication of the disciplinary action.

3.1.1.2 Legal Aid

Access to legal aid is a major concern for Italian prisoners. Italian legal aid system is a private/public model: legal aid is provided by private attorneys to persons with an income of less than €11.528,41 (as of April 2016); it is paid with public money and it is called “gratuito patrocinio a spese dello stato”[5] (free legal assistance provided by the State). Private attorneys available for this service apply to the local bar association and their names are included in a list. There are a number of obstacles to access to legal aid in prison:

  1. While European (EU) prisoners may apply attaching a self-certification of their income, Non-EU prisoners have to attach an authenticated certification. This requirement prevents Non-EU prisoners from accessing legal aid, because the proceedings for getting original certificates and for their authentication may take several months (often embassies don’t even answer the applications of prisoners and don’t provide any certificates) and because many of them are irregular migrants, declaring false information.
  2. Many prisons do not provide a list of legal aid attorneys, so prisoners face difficulties in reaching the lawyers.
  3. Often attorneys refuse legal aid services, so prisoners have to contact several attorneys before finding one available for legal aid.
  4. The legal aid reimbursement is paid by the State 2-3 years after the refund request, that’s the reason for which sometimes attorneys refuse to provide legal aid services.
  5. The Court that has to verify that the applicant is eligible and must authorize the legal aid service. Sometimes legal aid attorneys ask for money form prisoners for the work they do before the judge’s authorization.

3.1.2 Characteristics of the procedure

The prisoner can apply to the Judge when the administration breaches one of the norms of the Penitentiary Law and/or its implementing regulations. Indeed, the law does not state that prisoners can complain regarding a violation of any right protected by the Italian law, but only the ones recognized by the Penitentiary Law. It is important to stress that the Italian Penitentiary Law does not contain a list of prisoners’ rights but, following the influence of the UN Standard Minimum Rules of 1955, it contains only rules addressed to the prison administration and concerning the treatment of prisoners and the organization of prison institutions. Thus prisoners’ rights are not explicitly listed, they are an indirect consequence of the rules addressed to the prison administration. Article 4 of the Italian Penitentiary Law states that detainees can “directly exercise their rights”, formally recognizing that the rules contained in the Penitentiary Law indirectly provide individual rights. But it is the only norm of the law, together with art. 35 bis and ter, in which the term «right» is used.

A brief list of the main rules of the Penitentiary Law that indirectly recognising the rights to prisoners includes:

  1. art. 1-4 basic principles concerning the “right to treatment” and principle of equality;
  2. art. 5-12 basic rules concerning accommodation, clothing, personal hygiene, food, exercise and sport, medical care[6] ;
  3. art. 13-16 treatment of convicted prisoners;
  4. art. 17-18 contact with the outside world (NGOs and family): visits and phone calls;
  5. art. 19 education of prisoners;
  6. art. 20-25 prison labour;
  7. art. 21bis childcare for female prisoners’ children;
  8. art. 26 freedom of religion;
  9. art. 27 sport and cultural activities;
  10. art. 28, 29 and 45 family relationships;
  11. art. 32-34 and 36-40 disciplinary regime: sanctions, procedure, competent authorities;
  12. art. 35, 35bis and 35ter right to a judicial complaint;
  13. art. 41 limits on measures of restraint;
  14. art. 41bis (high security regime) – limits to the rights of prisoners convicted of organised crime.

– speed

The law does not provide any peremptory term for the Judge’s decision, but it sets time limits to appeal: within 15 days the judge’s decision can be appealed in front of the Supervisory Court, the Court’s decision can be appealed in front of the Supreme Court within another 15 days. Unfortunately, the procedure does not guarantee a prompt decision. Indeed the Supervisory judge’s decision usually takes from 3 to 6 months after the prisoner’s complaint, while the Court decision may take months to be taken. In any case, if the prison administration appeals against the Court decision to the Supreme Court, the Court cannot start the compliance proceedings and appoint the ad acta commissioner. As a result the remedy may be completely ineffective: its ratio is to protect prisoners from a current violation, but the final decision of the Court may take more than a year.

– adversarial

After the reform, the procedure to be followed is the general one established for the criminal execution and provided for by Articles 666 and 678 of the Italian Code of Criminal Procedure, instead of the previous one, contained in the Penitentiary Law (Article 14ter). According to the general regulations of the Code of Criminal Procedure, the prisoner has to be assisted by an attorney who needs to be present, together with the Prosecutor, during the hearing. The proceedings follow the general rules of trial and the prisoner can take part in the arguments. Also, the prison administration can now participate in the arguments and/or send written pleadings. The competence is given to the Supervisory Court in its monocratic composition (Supervisory Judge). The decision of the judge can be appealed to the Supervisory Court in its collegial composition (Supervisory Court) within 15 days, the decision of the Court can also appealed to the Supreme Court (Corte di Cassazione) within 15 days.

– establishment of the facts

Concerning the burden of proof, Supervisory Judges apply the principle affirmanti incumbit probatio, according to which the burden of proof is on the claimant. However, prisoners do not have access to any kind of documentation supporting and substantiating his/her claim. Taking the example of the medical reports, in many Regions of Italy this documentation is not digitally archived and can only be supplied in hard copy. Moreover, it is often incomplete or unclear and the prisoners have to pay to gain access to it. In other cases, the prisoners are unable to access official reports or orders of the prison administration. Moreover, the prison administration does not have to provide any proof, they only submit a report affirming their version of events. When the word of the prisoner is set against the word of the prison administration, the latter prevails, completely reversing the principle constantly stated by the ECtHR case law in this aspect.

3.1.3 Powers of the judge: preventive remedy

When the Court finds a violation of a norm concerning the system of disciplinary sanctions, it can annul the prison authority’s decision. In all other cases the regulations do not explicitly give the Supervisory Court the power to annul any administrative decisions, but it nonetheless states that the judge, “once they verified the existence of an actual damage, orders the administration to remedy it within a certain time frame”.

The new regulation goes beyond the limits of the previous rules that did not provide any special tool for the implementation of the Judge’s decisions. Indeed, when prison authorities do not implement the judge’s decision, it is now possible to appeal again to the Supervisory Judge who now has the power to:

  1. Order a detailed action plan addressed to the prison authority to remedy the violation;
  2. Annul the decisions of the prison authority that violate the Court’s decision;
  3. Assign an ad acta Commissioner.

3.1.4 Adequacy to structural problems

The issue of adequacy of the preventive remedy in dealing with the structural problems will be discussed in-depth below, as this been one of the topics of the empirical research. We will see that the remedy does not seem a proper tool for solving general problems related to prisoners’ rights protection since its effectiveness is highly compromised by a number of factors:

  1. The length and complexity of the procedure is incompatible with the preventive and urgent nature of the remedy;
  2. The procedure for the execution of orders (i.e. the ad acta Commissioner procedure) starts only after an appeal has been decided by the Supervisory Court and the Supreme Court;
  3. Prisoners are not protected from the risk of retaliation; and
  4. the Supervisory Judges are still reluctant to assume their role as protectors of prisoners’ rights, since they perceive themselves as primarily judges for sentence implementation.

3.2 Compensatory remedy (Article 35 ter of the Italian Penitentiary Law)

After introducing a preventive remedy, the Italian legal system was still lacking a proper ad hoc compensatory remedy in cases of past violation of prisoners’ rights.

Following a decision of the Committee of Ministers of the Council of Europe – that appreciating the new preventive remedies (art. 35bis), nonetheless asked the Italian Government to carry forward the reform’s process – a new bill introduced a specific compensatory remedy (art. 35ter) in cases of violation of Article 3 of the European Convention.

3.2.1 Accessibility of remedy

The Italian Penitentiary Law explicitly defines the categories of prisoners covered by the protection of Art. 35 ter, namely all prisoners, including those convicted and on remand.

According to Art. 35 ter of the Italian Penitentiary Law:

  1. the Supervisory judge (monocratic organ) is competent for all the claims coming from convicted prisoners;
  2. ordinary civil courts are competent for all the claims coming from prisoners on remand and former prisoners.
3.2.1.1 Legal Aid

Access to legal aid is a major concern for Italian prisoners. Italian legal aid system is a private/public model: legal aid is provided by private attorneys to persons with an income of less than €11.528,41 (as of April 2016); it is paid with public money and it is called “gratuito patrocinio a spese dello stato”[7] (free legal assistance provided by the State). Private attorneys available for this service apply to the local bar association and their names are included in a list. There are a number of obstacles to access to legal aid in prison:

  1. While European (EU) prisoners may apply attaching a self-certification of their income, Non-EU prisoners have to attach an authenticated certification. This requirement prevents Non-EU prisoners from accessing legal aid, because the proceedings for getting original certificates and for their authentication may take several months (often embassies don’t even answer the applications of prisoners and don’t provide any certificates) and because many of them are irregular migrants, declaring false information.
  2. Many prisons do not provide a list of legal aid attorneys, so prisoners face difficulties in reaching the lawyers.
  3. Often attorneys refuse legal aid services, so prisoners have to contact several attorneys before finding one available for legal aid.
  4. The legal aid reimbursement is paid by the State 2-3 years after the refund request, that’s the reason for which sometimes attorneys refuse to provide legal aid services.
  5. The Court that has to verify that the applicant is eligible and must authorize the legal aid service. Sometimes legal aid attorneys ask for money form prisoners for the work they do before the judge’s authorization.
3.2.1.2 Simplicity

As for the procedure in front of the Supervisory Court, a prisoner can apply directly to the competent Supervisory Judge, claiming a violation of Article 3 of the Convention. According to the new law, the Judge can order compensation every time a violation of a right is so serious so as to constitute a violation of Article 3. To guide the domestic judge in the interpretation of Article 3, the norm explicitly refers to the jurisprudence of the ECtHR that is binding for the national courts.

As a matter of fact, for the first time, in a civil law system such as Italy, the Italian legislator urges the Judiciary to consider the precedent as a binding source of law, i.e. the case law of the ECtHR, in order to assess a violation of Article 3 of the Convention.

The procedure in front of the Supervisory Judge is accessible and easy, no legal assistance is necessary in order to draft and send the application (in the hearing, a lawyer appointed by the Court must assist the prisoner) and no legal costs are charged.

On the other hand, the procedure in front of the Civil Court is an ordinary procedure. Legal assistance is mandatory for the drafting and filing of the application and general legal costs such as registration are charged.

3.2.2 Characteristics of the procedure

It is important to bear in mind that, from a procedural point of view, the two jurisdictions (the Supervisory Courts and the ordinary Civil Courts) differ considerably. While ordinary civil judges share a common normative ideology and adopt common principles relating to the Italian compensatory tradition, the Supervisory judge was not traditionally used to making decisions on compensation. As a result, the two procedures present aspects that need to be treated separately.

According to art. 35 ter of the Penitentiary Law, the Supervisory Judge, in addition to the usual measures to be adopted in case of violation of a prisoner’ rights, has the power to grant compensation for serious breach of the national law and of the European Convention. A remission of the sentence of imprisonment at a ration of 1 day for every 10 days spent in conditions that violate Article 3 of the Convention must now be granted. This remedy can only be applied when the violation has lasted for more than 15 days. The norm has a compensatory ratio as well as a deflationary one, since it aims to reduce the rate of prison overcrowding.

The 10% of day release compensation cannot be applied in the following cases:

  1. prisoners on remand, since a day release measure can be applied only to a final sentence;
  2. released prisoners;
  3. prisoners kept in breach of Article for 3 for less than 15 days and prisoners who do not have enough remaining time to serve to benefit from the 10% compensation.

In all of the above cases, the regulations provide for a monetary compensation of €8,00 for every day spent in breach of Article 3 of the Convention.

While in the first and second cases, released prisoners and prisoners on remand have to apply to Ordinary Civil Courts, in case 3) the competent Judge is again the Supervisory Court, that can decide to give the day release compensation and, for the remaining days, it can grant the monetary compensation.

Consequently, the procedure differs according to the possible alternatives:

  1. Convicted prisoners can apply, directly or through an attorney, to the Supervisory Judge. The decision of the Judge can be appealed to the Supervisory Court and its decision can be appealed to the Supreme Court (Corte di Cassazione). The Supreme Court in a recent decision has confirmed that the procedure for the compensatory remedy under Article 35 ter has to be the same of the preventive remedy under Article 35 bis.

    Thanks to the explicit reference to the ECtHR jurisprudence the burden of proof is on the prison authorities.

  2. Former prisoners and detainees on remand can apply to Civil Courts, personally or through an attorney. Unlike in the case of convicted prisoners, for whom the procedure is the one provided by Penitentiary Law (Articles 69 and 35bis), the procedure in front of the Civil Courts is the one provided by the Italian Procedural Civil Code, Article 737 (and subsequent). Civil judge’s decision can be appealed to the Civil Court within 10 days.

– speed

One of the most critical issues in assessing the effectiveness of a remedy is the length of the procedure, specifically connected with the length of the investigation. The Supervisory Judges admit that 4 months is the average time for an investigation, with most delayed up to 6 months. As a matter of fact, if initially the Supervisory Judge waits for the prison administration to provide the requested documentation for months, a line of interpretation arose expressly applying the civil procedural principle of the “non-rebuttal” (i.e. whenever an allegation by the applicant is not explicitly rebutted by the party, it is to be considered as proven). Unfortunately this line of reasoning is not gaining a uniform approval and the Italian Supervisory Judges’ case law shows that it is more likely for the judge to wait for the prison administration answer for up to six months than to implement the non-rebuttal principle. Together with the information supplied by NGOs and prisoners for this research, this suggests that the total time taken by the proceedings can be up to one year or more.

As far as the procedure before the civil courts is concerned, its length is even more, due to the endemic overload within the Italian civil courts system.

– adversarial

According to the general norms of the Italian code of criminal procedure, the prisoner has to be assisted by an attorney who needs to be present, together with the Prosecutor, during the chamber hearing. The proceedings follow the general rules of trial and the prisoner can take part in the arguments. Also, the prison administration can now participate in the arguments and/or send written pleadings. The competence is given to the Supervisory Court in its monocratic composition (Supervisory Judge). The decision of the judge can be appealed to the Supervisory Court in its collegial composition (Supervisory Court) within 15 days. Lastly, the decision of the Court can be appealed to the Supreme Court (Corte di Cassazione) within 15 days.

Before the civil court, the procedure follows the general rules of the Italian Code of Civil Procedure.

– establishment of the facts

One of the critical aspects of the procedure before the Supervisory Judge relates to the burden of proof. A fundamental principle that has been established by the ECtHR’s case law is the reverse burden of proof in cases of alleged inhuman or degrading treatment. This principle has been constantly reaffirmed and constitutes one of the most important aspects in order to guarantee the effectiveness of protection under Article 3 of the Convention.

As the Court had clarified, the distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. In cases of potential violations of Article 3 in prison, there are objective difficulties experienced by the applicants in collecting evidence to substantiate their claims about the conditions of their detention. In such instances the respondent Government alone have access to information capable of corroborating or refuting these allegations. This means that once the applicant establishes a prima facie case, the burden is on the Government to collect and produce relevant documents. A failure on their part to submit convincing evidence on material conditions of detention may give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations.

The extent of factual disclosure by the Italian Penitentiary Administration is rather limited and the supporting evidence they produce habitually consists of a series of reports and declarations issued by the director of the impugned detention facility after they have been given notice of the complaint. The Prison Administration usually advances the explanation that the original prison documentation has not been kept. In this connection, the ECtHR has already noted (see, inter alia, Ananyev v. Russia) that the destruction of relevant documents did not absolve the Government from the obligation to support their factual submissions with appropriate evidence. In cases of Article 35 ter, there is a substantial disapplication of the reverse burden of proof principle, and the Italian Supervisory Courts have repeatedly accepted simple reports by the Prison Administration as evidence.

As far as the procedure before the civil court is concerned, considering the issue of the burden of proof, we assume that on this issue the reverse burden of proof applies, considering the unbalanced positions between the prisoner and the Prison Administration on the availability of documents and data regarding the conditions of detention.

Another principle, concerning the burden of proof, is the principle of non-rebuttal – whenever a fact, presented by the plaintiff is not contested, the Judge has to assume it as proof. This is an important procedural principle, as in many cases the Prison Administration defence and written pleading is a standard report of the general conditions of detention in the specific prison institution, without a detailed defence addressing all factual points presented by the prisoner.

3.2.3 Powers of the judge

The Supervisory Judge has, in theory, full power of investigation in order to assess a violation of Article 3 of the Convention. While in theory the Supervisory Judge could activate his own power of control through a direct inspection or the appointment of an expert, it is often the case that judges rely on a mere report by the Prison Administration, in order to assess the actual conditions of detention.

On the other hand, the Civil judge will assess a violation grounding their decision in the Italian compensatory principles and case law, through full powers of investigation. This is also due to the specific procedure to be followed. Article 35 ter applications follow a chamber procedure, a form of procedure entirely managed and directed by the civil judge himself/herself.

As for the remedies, the compensatory remedy introduced by Article 35 ter of the Italian Penitentiary Law establishes two kinds of compensatory remedies.

A compensation in kind, i.e. in cases where the prisoner is still serving their sentence, a remission of the sentence in the measure of 1 day for every 10 days spent in conditions that violate Article 3 of the Convention must be granted. This remedy can only be applied when the violation lasted more than 15 days. The norm has a compensatory ratio as well as a deflationary one, since it aims to reduce the rate of prison overcrowding. In cases in which the compensation in kind cannot be awarded (namely in cases of prisoners on remand; released prisoners; prisoners kept in breach of Article for 3 for less than 15 days and prisoners that do not have enough remaining time to serve), a monetary compensation of €8,00 for every day spent in breach of Article 3 is provided for by Article 35 ter.

3.2.4 Adequacy to structural problems

Up to now the compensatory remedy has been variously applied and interpreted by the Italian doctrine and jurisprudence. The different interpretations are seriously compromising its potential effectiveness. The jurisprudential and doctrinal debate is linked, on one hand, to the problem of harmonization of the new remedy (art. 35 ter) with the preventive remedy (art. 35 bis). Indeed, the new norm does not provide a special procedure for the compensatory remedy but it refers to the one provided for the preventive remedy and this has created a misinterpretation that we will analyse below. On the other hand, the debate has also hinged on the different possible interpretations of the ECtHR jurisprudence in the field of overcrowding.

As far as the first kind of interpretation is concerned, we have already mentioned that the norm providing the compensatory remedy (Art. 35 ter) refers to Article 69 of the Penitentiary law that rules the competences of the Supervisory Judge. Article 69 gives the Supervisory Courts jurisdiction in cases of violation of prisoners’ rights and it refers, as far as procedural aspects are concerned, to the norm ruling the preventive remedy (Article 35bis). Article 35 bis is a preventive remedy and, consequently, states that the damage caused by the violation has to exist at the time of the Judge’s decision. According to a technical advice of the Consiglio Superiore della Magistratura (CSM), this requirement has to be applied also to the compensatory remedy, thus Supervisory Courts could order the 10% day remission or the monetary compensation only in cases in which the violation is still existing at the time of the decision. As a result, the compensatory remedy does not apply to past violations of Article 3 of the Convention, but only to current, ongoing ones. According to this interpretation, all claims coming from prisoners who are no longer in a situation of overcrowding have to be rejected.

This kind of interpretation will produce effects on all pending claims for violation of overcrowding. Indeed, the prison population, thanks to the deflationary measure adopted by the government, has decreased from 68.000 in 2013 to 54.000 at the end of 2014, thus most of the prisoners are no more in the situation of a serious breach of Article 3 of the Convention. This interpretation has been accepted as part of the doctrine as well as by a relevant part of the Supervisory Courts, especially the Courts in the biggest districts.

This interpretation, however, appears to have a bearing on the effectiveness of the new compensatory remedy and to go against the decision of the ECtHR in the Torreggiani’s case. The Supervisory Judges who adhere to this interpretation seem to be reluctant to play the new role assigned to them by the reform. Traditionally, Supervisory Courts resisted the task of the protection of prisoners’ rights and have focused their jurisprudence on decisions concerning alternative and security measures. For a long time, they have justified this position on the grounds that Penitentiary Law didn’t give them any effective power to protect prisoners’ rights against decisions of prison authorities. They refused to embrace the role of the protection of prisoners’ rights even when, in 2009, the Constitutional Court made clear that Supervisory Courts’ decisions are binding on the prison administration. This decision had been neglected by most of the Italian Supervisory Judges. As a matter of fact, the misinterpretation of the compensatory remedy and the lack of decisions based on the preventive remedy, confirm the traditional attitude of Supervisory Judges in refusing their role.

Part of the legal doctrine and jurisprudence is rejecting this interpretative position, arguing that it’s based on a wrong textual interpretation of the norm and that it nullifies the intent of the legislator to provide the effective remedies requested by the ECtHR in the Torregiani case. The misinterpretation is a consequence of the unclear distinction between the two remedies: when enacting the compensatory remedy for violation of Article 3, the legislator should not have referred to the same procedure already provided for the preventive remedy. Indeed, the preventive and compensatory remedies have different ratio and scopes, the first, aiming to stop a current damage, obviously requires an ongoing violation at the time of the application to the Court, while the second one aims to give a compensation when the damage is over. The norm concerning the compensatory remedy (art. 35 ter) gives a 6 months time limit from the end of incarceration to former prisoners and prisoners on remand in order to apply to the Court. So it would be totally unreasonable to give such term and, at the same time, require that the damage should be ongoing at the time of the application. If the legislator had provided a clear distinction between the two remedies, we would not face this kind of interpretative problems (even if, eventually, we could have faced different interpretative issues).

The new judicial remedy has been established to provide an effective remedy to prisoners kept in a situation of a serious violation of Article 3 of the Convention as a consequence of the overcrowding situation. However, the remedy generically refers to violations of Article 3 of the Convention and to the ECtHR jurisprudence, with two consequences: it can be considered as a general compensatory remedy for all cases of a breach of Article 3, not only for overcrowding. Secondly, Italian Courts have to conform to the whole jurisprudence of the ECtHR. Not only to decisions concerning Italy, but to any decisions concerning breaches of Article 3 perpetrated by any Member States.

Also, even if the Italian debate, doctrinal and jurisprudential, is now focused only on ECtHR’s decisions in cases of overcrowding, in the future it could be expanded to other prisoners’ rights such as the right to health.

The cross-reference to the ECtHR’s jurisprudence is creating a debate on the criteria for calculating the minimum living space to be guaranteed to prisoners in order not to violate Article 3. Firstly, it’s important to say that the ECtHR’s principle, according to which the burden of proof is on the Prison authorities, is not contested by Supervisory Judges when evaluating prisoners’ claims. One of the most common controversial issues is the one concerning the inclusion or not of the cell’s furniture into the personal space available to prisoners. The common agreement seems to be that the space to be considered is the “floor space”, the bathroom being excluded. According to Supervisory Judges, part of the furniture (such as a closet) is undoubtedly excluded from the living space while other items (such as beds and tables) are part of the living space since “prisoners can use them for various purposes and, as a consequence, they are not intended to reduce the living space but they allow its full enjoyment”. According to the Spoleto Supervisory Judge, a distinction is needed between fixed and mobile furniture: only the first one should be considered out of the living space and, once again, bed, tables and chairs should be considered “mobile furniture” as they are part of the living space. The Judge seems to ignore the fact that in a lot of cells the bed is fixed to the floor and technically it cannot be considered as “mobile furniture”. Again, according to Padova and Genova Supervisory Judges, the bed is a “usable space” since it can be employed to sleep during the night and to have a rest during the day.

The issues concerning the calculation of the available personal space are relevant since ECtHR jurisprudence clearly distinguishes the cases in which the flagrantly insufficient amount of personal space available (under 3mq) is enough to demonstrate a breach of Article 3 from the cases in which the insufficient amount of space (between 3 and 4mq) has to be linked with other bad living conditions and violations. Up to now the jurisprudence of the Italian Courts has focused its attention on the flagrant violations and has not yet considered the second kind of violation, thus there aren’t yet any common standards related to it. There are hundreds of pending claims in front of the Courts of prisoners kept in a space between 3 and 4 mq and we will monitor the future Court’s decisions.

4. Procedures regarding disciplinary issues

4.1 Disciplinary authorities

Disciplinary proceedings and sanctions are provided for in Articles 38-41 of the Penitentiary Law.

Article 40 lists the following competent authorities: prison director and disciplinary council composed of the director, a physician and a social worker. The Director may apply, without convening the council, the sanction of “richiamo” (reprimand) and “ammonizione” (warning). The council may apply the exclusion from leisure and sport activities for up to 10 days; solitary confinement up 15 days;[8] exclusion from yard time for up to 10 days.

The application of the above mentioned sanctions has to be driven by the principles of legality and proportionality. The behaviours that may lead to sanctions are listed in the Implementation Rules of the Penitentiary Law (art. 77). Sanctions are proportionate to the seriousness of the violation and to the behaviour and personal conditions (including health) of the inmate. In any case, the inmate has to be notified and has the right to give his version of events before the disciplinary body.

Article 41 provides limits on the use of force stating that officers cannot use force as a sanction. The use of force is only allowed to contain violence amonst prisoners and damage to things or persons, including self-harm. In all these cases, the use of force has to be under medical control. Articles 77 and 78 of the Italian Implementation Law (Presidential decree n. 230/2000) provide a long list of behaviours that may be punished through disciplinary sanctions.

The application of disciplinary sanctions falls into the scope of the judicial protection provided for by Article 35 bis, the general preventive remedy. So the competent authority is the Supervisory Judge that, according to art. 69 of Penitentiary Law, may review: the conditions of exercise of disciplinary power, the constitution and the competence of the disciplinary body, the notifications of the objections to the inmate and his right to appear before the disciplinary council. The judge may review the merits of the disciplinary decision only when it has lead to the application of reprimand, solitary confinement or the exclusion from yard time, but not in the cases of warning or the exclusion from leisure and sport activities.

4.2 Remedies

In case of complaints concerning disciplinary measures, the prisoner has to apply to the Court within 10 days from the adoption of the disciplinary sanction. When the Court finds a violation of a norm concerning the system of disciplinary sanctions, it can annul the prison authority’s decision.

Within 15 days the judge’s decision can be appealed to the Supervisory Court; withing15 days from the Court’s decision, it can be appealed to the Supreme Court.

5. Prisoners’ rights protection and early release

Concerning the preventive remedy, the chosen authority appears to be, in theory, consistent with the nature and kind of the protection, given the role of the Supervisory Judge as the authority for the protection of prisoners’ rights. Unfortunately, the impartiality of the authority may be affected by its concurrent competence in the field of alternative measures.

Concerning the compensatory remedy, on the other hand, the Supervisory Judge doesn’t appear able to deal with the compensatory matters both on the investigation side and on the case law mindset and tradition. The jurisdiction of the Civil Judge is, however, consistent with the nature and scope of the remedy, even if the length of the procedure is potentially undermining the scope of the protection.

6. Actual state of the protection of prisoners’ rights

6.1 Methodology and scope of the empirical research

The empirical research had the purpose of analysing the effectiveness of the new Italian system of judicial protection of prisoners’ rights. Semi-structured interviews have been conducted with: 2 judges from the Supervisory Court, 3 lawyers, 2 NGO Members (Altro Diritto and Antigone), and 10 prisoners. Interviews with all categories of interviewees were conducted in accordance with the guidelines for gathering of empirical data drafted by the project partners:

  1. What are the strategies of practitioners and detainees in using the existing legal remedies?
  2. Where those exist, is the access to these legal remedies effective?
  3. Are the decisions of the Court implemented in prisons and with what effect on prison daily life?

Starting from this common basis, the semi-structured interviews focused on specific issues according to each category of the interviewee:

  1. Interviews with Supervisory Judges focused on their perception of prisoners’ access to legal remedies and the Court and on their perception of the impact of their decisions on prison daily life. Judges have been asked about how they perceive their role after the ECtHT decisions regarding Italy and after the reforms that have introduced the new system for the judicial protection of prisoners’ rights. Did they perceive themselves as judges for sentence implementation or charged with the protection of the rights of prisoners?
  2. Interviews with lawyers focused on the different strategies for litigation in the field of prisoners’ rights and on the access to justice and to the new remedies.
  3. Interviews with prisoners focused on their perception of the accessibility of the remedies (before and after the reform) and on their effects on prison daily life. Prisoners have been asked to talk about access to information concerning the new remedies introduced in Italy after the Torreggiani judgment, as well as to consider the effectiveness of those same remedies in terms of speedy trial and of their tangible impact on everyday life in prisons.
  4. Interviews with NGO members involved both NGOs that have a public role (such as Antigone) and NGOs that are involved in the everyday practice inside prisons, such as Altro Diritto. NGO’s members have been asked to discuss their perceptions concerning the potential of the new remedies and their actual results in terms of reducing the prison population and tackling the issue of material condition of detention.

6.2 Effectiveness of the preventive remedy

Supervisory Court’s role as a protector of prisoners’ rights. With reference to the previous system of prisoners’ rights protection, described above, our empirical research shows that the Supervisory Judges did not feel their role to be the protection of prisoners’ rights. This is due to the fact that they assumed not to have real power of intervention against the prison administration, even though a judgment of the Italian Constitutional Court in 1999 clearly affirmed that decisions of the Italian Supervisory Judiciary were to be considered binding on the prison administration.

This perception was confirmed by the members of L’Altro diritto and Antigone when they confirmed that all of the applications filed to the Supervisory Court on the basis of the general remedy ex Article 35 of the Penitentiary Law, remain unanswered.

The introduction of the new remedy (i.e. Article 35 bis specifically) seems to be potentially able to change this state of affairs, influencing the self-perception of the Italian Supervisory Judges toward the real protection of prisoners’ rights.

General evaluation of the remedy. Concerning the general evaluation of the scope and potential of Article 35 bis, according to the NGO’s members interviewed, this remedy has had a positive impact on the system of protection of prisoners’ rights. This is firstly because Article 35 bis imposes on the Judge the obligation to answer any application filed. Secondly, this is because this new remedy clearly affirms the binding nature of the Supervisory Courts’ judgments and provides a detailed procedure for the orders’ implementation (i.e. the ad acta Commissioner procedure).

Ineffectiveness of the remedy. On the negative side, the NGO’s members interviewed highlighted the issue of the complexity and length of the procedure. Moreover, not a single judgment has been implemented so far, therefore it is impossible to test the real effectiveness of the procedural aspects of the said remedy. One of the most critical aspects stressed by the NGO’s members was the incompatibility of the urgent nature of the remedy with the length and complexity of the procedure. This is all the more true when one considers that the order of the Supervisory Judge and the ad acta Commissioner procedure, become executive only once the Supreme Court (Corte di Cassazione) has decided on the matter. This was felt, by our interviewees, as a critical aspect capable of infringing upon the effectiveness of the remedy. This is particularly serious taking into account the preventive nature of the remedy.

In order to substantiate their views, our NGO’s interviewees provided a number of examples of Article 35 bis applications:

Ineffectiveness of the remedy: the female detention case. One of the first cases of application on the basis of Article 35 bis filed by L’Altro diritto concerned the inhuman and degrading conditions in the female section of the Sollicciano Prison. The female section of the prison traditionally enjoyed an open regime. Nevertheless, due to a number of thefts in the same section, the open regime was revoked and a stricter regime was imposed (the confinement in a cell with a reduction of out of the cell activities). One of the main consequences of this new situation was the rationing of access to the shower (the result being that an everyday access to the shower was no more guaranteed). This, combined with the structural issues prevalent in this section of the prison (i.e. poor hygienic condition at cell level, the sanitary facilities and the showers, the presence of rats, bugs and pigeons and bird droppings in the cells, the unavailability of hot water, poor cleanliness of bedding, sheets and blankets, water leaks with consequent flooding and appearance of mould, inadequate ventilation, lighting and heating, access to minimum medical care, restricted access to social and educational activities) resulted in a serious ongoing violation. In March 2015, a number of Article 35 bis applications were filed before the Supervisory Court asking for an reinstatement of the open regime and the ending of the structurally poor hygienic conditions. The Supervisory Court answered after four months declaring the inadmissibility of all of the applications on the basis of the fact that the open regime was reinstated, without considering the global conditions of detention and the ongoing violations in terms of the structural poor hygienic conditions of the female section.

Ineffectiveness of the remedy: the criminal psychiatric hospital case. Another relevant case concerns Article 35 bis applications filed by L’Altro diritto in order to ask for the closure of a criminal psychiatric hospital (Ospedali Psichiatrici Giudiziari, OPG) in Italy as stated by Law no. 81/2014. This Law provided for the closure of the said institutions and ordered the transfer of the inmates into special hospitals (REMS) under the control of the Ministry of Health. According to the law, each Italian region had to built the REMS, but the majority of the Regions didn’t respect the deadline of March 31st, 2015.[9] L’Altro diritto drafted a model of Article 35 bis application in order to denounce the violation of the Italian Law and of the Italian Constitution (Article 13 of the Italian Constitution, Personal Liberty). The application asked the competent Supervisory Judge to declare the ongoing violation and to order the closure of the OPGs.

  • 58 applications were filed in July 2015 from the OPG in Tuscany, Montelupo Fiorentino to the Supervisory Judge of Florence;
  • 28 applications were filed from the OPG in Barcellona Pozzo di Gotto on September 2015 to the Supervisory Judge of Messina;
  • 24 applications were filed from the OPG of Reggio Emilia on October 2015 to the Supervisory Judge of Reggio Emilia.

Even though this application concerned a preventive remedy, the length of the procedure frustrated the need for a speedy judgment and the urgency of the case. If we take the example of Florence, due to procedural issues (i.e. an error of notification on the part of the Supervisory Court itself) and to a change of the competent judge, the hearings were constantly re-adjourned and the decision was rendered only on November 2015 (4 months after the filing of the applications). The Supervisory Judge’s decision confirmed the violation of both the domestic legislation and the Constitution and ordered the Region of Tuscany to build the REMS, giving a time limit of 3 months to execute the order. The deadline passing in vain, the ad acta Commissioner procedure had to be initiated. The decision has recently been appealed by the same Region of Tuscany (who had not intervened in the proceeding in front of the Supervisory Judge) and the deadline of three months, as well as the ad acta commissioner procedure, is now suspended because of the appeal before the Supervisory Court. This state of affairs prolongs the unlawfulness of the conditions of the mentally ill inmates who are still interned within the OPG of Montelupo Fiorentino.

As for the other Supervisory Judges, we are still awaiting a decision, after three months from the filing of the applications (as of the end of November 2015).

Even Antigone refers about a generally critical situation concerning Article 35 bis applications in terms of speedy procedure and respect of the urgent nature of the remedy.

Knowledge of the remedy, risks of retaliation, impartiality of the body. As for the prisoners interviewed, the empirical research findings show the general lack of knowledge of the preventive remedy as a way of claiming ongoing violations on the part of the prison administration. Moreover, as experienced in the case of the female section of Sollicciano (see above), even when the prisoners had been informed by NGO members or others of the existence of the preventive remedy and of the concrete possibility of filing an application under this same remedy, some of them still decline to use it. As a matter of fact, after further investigation, the prisoners confirmed that this reluctance was due to the fear of potential retaliation by prison agents.

According to Antigone, this reluctance can also be explained by the fact that prisoners fear that claiming protection of their rights will result in a potential backlash. Specifically, due to the fact that the same Supervisory Judge is competent both for the application under article 35 bis and for any other issues concerning sentence implementation (alternative measures, benefits etc.): “if the prisoner complains too much, he/she won’t have access to benefits”.

As for the Supervisory Judges, their opinion on the preventive remedy was positive. They felt for the first time empowered by a clearly binding judicial tool. As with the other interviewees, the Judges criticised the complexity of the procedure.

As regards the changing perception of their role, the Supervisory Judges seemed to be still reluctant to assume their role as protector of prisoners’ rights, even after the introduction of Article 35 bis remedy. They still perceived themselves as primarily judges for the sentence implementation. As stated by one of the judges, he/she refused the role of control of the prison administration, preferring to talk about a cooperation with the administration itself. He/she significantly confirmed that the proceedings before the Supervisory Judge are a way to explain to the prisoner the reasons behind his/her disciplinary sanction. This, in his/her opinion was due to the fact that the prison administration does not thoroughly communicate its orders and decision to the prisoners.

Burden of proof. Concerning the burden of proof, the NGOs members stated that it is highly difficult for the prisoners to have access to any kind of documentation supporting and substantiating his/her claim. Taking the example of medical reports, in many Regions of Italy this documentation is not digitally archived and can only be found in hard copy. Moreover, it is often incomplete or unclear and the prisoners have to pay to gain access to it. In other cases the prisoners are unable to access official reports or orders of the prison administration.

Significantly, the Supervisory Judges interviewed, confirmed that when the word of the prisoners is set against the word of the prison administration, the latter prevails, completely reversing the principle repeatedly stated in the ECtHR case law.

Discussing the applications decided by the Supervisory Judges interviewed, they confimed that the cases of violations claimed under this remedy appeared to be inconsistent and deceptive. At the same time, it is interesting to note the paucity of Article 35 bis applications pending or decided in front of them.

6.3 Effectiveness of the Compensatory Remedy

General Evaluation. Concerning Article 35 ter, i.e. the compensatory remedy recently introduced in Italy, the general evaluation by the Supervisory Judges seemed to be negative. This remedy seems to have an ambiguous nature as per its formulation. On the one hand, it aims at providing a judicial protection in cases of violations of Article 3 of the European Convention of Human Rights. On the other hand, it has an explicit deflationary purpose. This encourages the Supervisory Judges to conduct a personalized investigation in order to assess the seriousness of the violation and its entity. Nevertheless, the compensation is either a fixed sentence reduction or a flat rate monetary compensation, with no judicial discretion. This is perceived as a critical aspect by the interviewed Judges and it leads them to confirm that another kind of remedy would have been more suitable. Specifically, they all stated that the deflationary and compensatory nature of the remedy is not consistent with the jurisdictionalization provided for by Article 35 ter and that an automatic way of redress would have been more effective.

One of the Judges complained about the fact that for the first time the legislator imposed on the Judiciary, as a binding source of law, a duty to consider a precedent, i.e. the case law of the ECtHR in order to assess a violation of Article 3 of the Convention. This is seen as inconsistent with the civil law tradition and with the principle that the judge is subject only to the law. Moreover, the same Judge argued that most of the judges do not speak English or French, and therefore are unable to fully understand and interpret the precedent by the ECtHR.[10]

As for the impartiality of the competent judge for the compensatory remedy, no issues arose regarding the Civil Judge who is perceived as impartial. On the other hand, the NGO’s members interviewed confirmed that the impartiality of the Supervisory Judge appears to be compromised by their role as judges for the implementation of the sentence.

Procedural aspects. Concerning the procedural aspects of the remedy, one of the critical aspects stressed by the NGOs members is the length of the proceeding connected to the investigation issue. As a matter of fact, the thoroughness of the investigation is compromised by the fact that the documentation is entirely provided by the prison administration. The prisoners have no chance to get access to the official documentation in order to support their claims and the Supervisory Judges practically decides on the basis of a single report, expressly drafted by the prison administration after the proceedings in which it makes a declaration about the conditions of detention, the regime imposed on the prisoners and answers to all the allegations outlined by the applicant. No official prison register, order, or documents are provided either due to the fact that the official documentation is not digitally archived. Another critical issue is the fact that often an application for the compensatory remedy refers to prison conditions experienced by prisoners in different prison institutions. As confirmed by the Judges interviewed, at the beginning the judge used to ask for a report from all of the prisons involved in the case, with a drastic increase of the investigation time as a result of waiting for all of the answers. Nowadays, the last prison detaining the applicant is the one competent to provide the report, including all the information from other institutions.

As stated above, even for the compensatory remedy procedure, the burden of proof imposed on the prison administration seems to be reduced to an ex post report of declarations by the prison administration. In this case when the word of the prisoner is set against the word of the prison administration, the latter prevails as clearly stated by the interviewed Supervisory Judges.

One of the concerns of the Supervisory Judges seemed to be the fact that many applications appear to be standardized and not substantiated, precluding the personalization of the evaluation. This is due, in the opinion of NGO members, to the impossibility of accessing the official documentation supporting the applicant’s claim. Moreover, the violations often are related to past detention in different prisons and the prisoners sometimes are unable to retrace all the material conditions of detention.

Moreover, it is true that Antigone and L’Altro diritto provided a draft model of Article 35 ter application. This model was distributed all over Italy through the local Ombudsmen. This fact allowed an high percentage of prisoners to have knowledge of the remedy and to apply for compensation. Unfortunately, the personalization of the application form was only possible in prisons and cases in which NGO members were able to assist prisoners in completing the application. This shows another critical issue, i.e. the insufficient access to legal aid by prisoners. Very rarely the prisoners were assisted by a lawyer in the drafting of the application under Article 35 ter. Only later on, during the proceedings before the Supervisory Judge, a lawyer is appointed and legal aid is provided. The problem is that the lawyer only learns the case at the first hearing, exemplifying a clear infringement of the right to the technical defence.

Length of the procedure. One of the most critical issues in assessing the effectiveness of the remedy is the length of the procedure, specifically connected to the length of the investigation. The Supervisory Judges admit that 4 months is the average time for the investigation that is usually delayed up to 6 months. Due to the fact that the initial period in which the Supervisory Judge waits for the prison administration to provide the requested documentation adds to a few months, a line of interpretation arose of expressly applying the civil procedural principle of “non-rebuttal” (i.e. whenever an allegation by the applicant is not explicitly rebutted by the other party, it is to be considered as proven).[11] Unfortunately, this line of reasoning is not gaining a uniform approval and the Italian Supervisory Judges case law shows that it is more likely for the judge to await the prison administration answer for up to six months than to implement the non-rebuttal principle. Analysing this together with information provided by NGOs and prisoners, we estimate that the total duration of the proceedings can be up to one year or more.

Other controversial interpretative issues:

The necessity of the violation being ongoing. The Italian Supervisory Judges’ case law shows a number of controversial interpretative issues capable of influencing the potential effectiveness of the compensatory remedy.

One of the first issues is the necessity to show an ongoing violation in order to assess the admissibility of the claim under Article 35 ter. On this issue, the interviewed judges of the Supervisory Court of Florence, confirmed that after a brief initial period in which it was unclear whether an ongoing violation was necessary in order to decide on an application, it is now undisputed, at least in their office, that this is not required. This line of interpretation is still not validated by the Italian Supreme Court (Corte di Cassazione) that recently delivered two judgments confirming the existence of two opposite views on this same issue.

The ‘Cadastral’ jurisprudence. The Italian case law shows a persistent line of reasoning that we can define as a cadastral jurisprudence, overestimating the 3 sq.m in cases of assessing a violation under Article 3 of the Convention. This case law appears to be predominantly focused on the personal space criterion, undermining the assessment of the violation of Article 3 in light of human dignity, considering the global detention conditions of each individual case. On this particular issue, the judge interviewed confirmed the said tendency stating that the minimum of 3 sq.m. is a criterion able to offer a direct and clear basis for the assessment of the violation.

The fate of the pending application to ECHR. According to the experience of Antigone and L’Altro diritto, one of the most critical issues, negatively impacting the effectiveness of the remedy for a significant number of prisoners, is connected to the ECtHR decision in Stella v. Italy. This is the judgment ending the pilot judgment procedure enacted against Italy by the Torreggiani case. The European Court considered that there were grounds in the Stella case for departing from the general principle that the exhaustion requirement should be assessed with reference to the time at which the application was lodged and that this exception could apply to all similar cases pending before it. Those exceptions seem to specifically include situations in which, after a Pilot Judgment Procedure, the State enacts a number of measures aimed at resolving the structural problem at a national level. Therefore, all of the applications already lodged before the Court were declared inadmissible for failure to exhaust domestic remedies. The Italian law gave a 6 months time-limit, starting from the date of the enactment of the law (June 2014) to prisoners who had already lodged an application with the ECtHR. The time frame between the Stella judgment (September 2014) and the end of the 6 months limit (December 2014) left almost no time to prisoners to be able to have knowledge of this deadline and to file an application a domestic judge on time.

The “nonsuit” case. Another critical issue is the case of a prisoner who files his/her application before the Supervisory Court while he/she is still in prison and in the course of the proceedings (often due to the length of the proceedings) is released. According to the law, a former prisoner has to file his/her application before an ordinary Civil Court. Two interpretations in such cases have now been provided by the Italian case law. The first one asserts that the Supervisory Judge loses his/her competence and declares the case moot. As a consequence the former prisoner is forced to lodge a new application before the civil judge where it is necessary to have a professional legal assistance, the procedural expenses. According to the Penitentiary Administration data, the 5,2% of the total applications decided so far have been declared moot because of this (829 out of 16.085).

Another line of reasoning, shared by one of the interviewed judges, assumes that once an application is registered with the Supervisory Court, the competence remains within the Supervisory Judge, no matter what happened to the prisoner. This is due to the fact that the procedural delay cannot be ascribed to the prisoner. We are still experiencing a multitude of interpretations on this relevant issue, due to the lack of a clear formulation in the law and the Italian case law scenario.

6.4 Testing the effectiveness of compensatory remedy: the prisoners’ perspective

In October 2015, L’Altro diritto initiated a litigation campaign on material conditions of detention, drafting a form (see http://www.altrodiritto.unifi.it/sportell/cedu/) that takes into account all the parameters that the case-law of the ECHR has set as relevant for the assessment of a violation of Article 3. This form potentially enables all the prisoners who are suffering violations of their rights in the context of Article 3 of the European Convention on Human Rights to demand compensation for damages. The forms have been distributed (and continue to be) directly by the volunteers of L’Altro Diritto in Bologna’s prison and in all prisons in Tuscany. In these premises, volunteers meet the inmates individually and help them to complete the forms.

The empirical research was conducted among male prisoners detained in the Sollicciano prison, with the interviews taking place between 14th of September and 23rd of October 2015. The prisoners were chosen from those who had been supported by L’Altro diritto in drafting and filing the application under Article 35 ter.

Their answers are useful in assessing the real effectiveness and potential of this new remedy.

The majority of the applications drafted by L’Altro diritto were lodged between September and November 2014. The main claims of the prisoners were related to:

  • Limited access to air and ventilation;
  • Insufficient heating;
  • Unavailability of hot water in the cell;
  • Insufficient hot water in the shower;
  • Restricted access to social and educational activities;
  • Lack of emergency alarm system in the cells;
  • Lack of privacy in the toilet;
  • Poor hygienic condition;
  • Presence of rats, pigeons, insects and bird-droppings;
  • Formation of mould;
  • Overcrowding (between 3 and 4 sq.m.).

Contradicting the information provided by the Supervisory judge on the maximum time of the proceedings, most of the prisoners declared that their application is still pending after one year from lodgement.

When asked about possible improvements in their living conditions, all of the prisoners answered that the only two improvements concerned the limited reduction of the overcrowding (the prison population in Sollicciano decreased by some 30% between 2013 and 2014, the number of prisoners in a 12 sq.m. cell changed from 3 to 2) and access to a more open regime.

Since May 2014, 9 out of 13 sections of the male prison enjoy a semi-open regime within the section for 8 hours per day. The Italian prison administration, in order to counteract the structural problem highlighted by the Torreggiani pilot judgment, adopted an administrative order introducing the “dynamic” security. This was the only strategy implemented by the prison administration. No improvements concerning educational and work activities have been introduced. As a result, while before this order, prisoners were abandoned idling in the cell, now they appear to be abandoned idling in the corridors.

Moreover, due to the opposition to this new regime by the penitentiary police trade unions, a new administrative order was adopted, limiting the scope of the semi-open regime. The new decision imposes classification of prisoners according to their potential dangerousness, after an observation period of one month and to accommodate them accordingly in semi-open regime sections or in sections with closed regime.

All of the other material conditions of detention listed above have not changed, according to the prisoners’ answers.

It is worthy of note that the slight improvement in the material conditions of detention, experienced by prisoners, is not directly linked to judicial protection, but rather to administrative policy.

6.5 Statistical overview of the application of the compensatory remedy

Methodological premise: reliability and coverage of data. The statistical office of the penitentiary administration did not collect any comprehensive and systematic data regarding any applications, proceedings and final decisions. The statistical data used in this report was collected by the Section on Judiciary Applications of the penitentiary administration and they are based only on the decisions that local Courts have voluntarily sent to the Regional centres of the same administration: most of the Courts sent data, but not all of them. Every regional office sent data collected in different ways and related to different periods. So they don’t cover all of the applications. The only reliable data is the number of positive decisions (976 cases), because a decision that goes against the administration always has to be notified. The number of decisions stating inadmissibility (12.379, the 77% of the total) is not totally reliable: Courts have notified to the legal office of the penitentiary administration only decisions that, according to the judges’ opinion, could result in an appeal from the applicant. In cases in which, for instance, the application was declared inadmissible because it was found totally unfounded, the inadmissibility decision could not have been notified to the office. So the number of inadmissible applications (12.379) is perhaps underestimated. Similar considerations arise regarding the number of applications in which the same applicant complained of an ongoing violation (12.009): also this data may be not totally reliable. The significant number of applications communicated to the office (23.600) should only be treated as an overview of the general trend.

Applications to Supervisory Court
Number of applications under art. 35ter for violation of article 3 of the Convention 23.600
Number of notifications of the hearing before the Judge 4.773
Number of cases in which the applicant complains for an ongoing violation 12.009
Decisions of Supervisory Court
Number of applications decided accepted (6,1%) 976
rejected (7.3%) 1176
Moot (5,2%) 829
inadmissible (77%) 12.379
other (4,5%) 725
Total 16.085
Number of pending applications   6.430
TOTAL (decided + pending)   22.515

According to the data of the penitentiary administration, up to 13th of October 2015, 23.600 inmates applied to Supervisory Court,[12] but only in 4.773 of them the administration was notified to take part in the proceedings to the proceeding.

The reason for the low number of cases in which Judges have started the proceedings is to be found in the large number of applications found “inadmissible” (77% of the cases) or moot (5,2%).

There is no information available relating to the arguments used by the judge but, according to the legal office of penitentiary administration, they can be classified as follows:

In many cases the application was “generic”. This data can be explained by the lack of proper assistance by a lawyer or by an NGO;

Few cases of prisoners that have applied to more than one Supervisory Court;

Most of the cases were being rejected because the violation wasn’t ongoing at the time of the decision.

According to the legal office of penitentiary administration, only the Courts in four regions (Puglia, Toscana, Emilia Romagna and Sicilia) are accepting applications coming from prisoners that aren’t in a situation of ongoing violation, while all the others (the majority) are declaring them inadmissible. It’s just a general trend, since in some Regions, single judges may not be following the majority.

The 976 cases in which the application has been upheld, prisoners were given an average compensation of €215 per prisoner and an average sentence reduction of 54 days per prisoner. So according to the Supervisory Court decisions, only 976 prisoners have been detained in a situation of a violation of Article 3 of the Convention due to overcrowding for an average time of 540 days each. This data in itself is able to show the ineffectiveness of the remedy provided by Article 35ter. According to the ECHR decision in the Torreggiani’s case the overcrowding in Italy was structural.[13] This fact is confirmed by the 23.600 applications of prisoners under the scope of Article 35ter and by the 12.009 applications in which the applicant complained for an ongoing violation. In spite of this, the Supervisory court has found violation only in 976 cases, i.e. only 6.1% of the cases, contradicting the view of the ECtHR and indirectly claiming that overcrowding wasn’t structural. Moreover, data shows that in the 77% of cases, the national courts have not assessed the possibility of a violation the violation of Article 3 of the Convention, declaring the application “inadmissible” because the violation wasn’t ongoing at the time of the decision.

Civil Courts
Number of applications 1.507  
Accepted 87 (5,7%) 36% of decided applications
Rejected 155 (10,3%) 64% of decided applications
Pending applications 1.265 (84%)  

According to official data shown above, 1.507 prisoners have applied to Civil Courts. We do not have any data to understand how many of these applications were formerly presented to Supervisory Court. We can guess that some of the 829 applications declared moot by the Supervisory Court have been re-lodged with Civil Courts. We have no data available relatting to the arguments pursued before Civil Courts.


[1] Bill 26 July 1975, n. 354, Norme sull’ordinamento penitenziario e sulla esecuzione delle misure privative e limitative della libertà .

[2] Decreto Legge NO. n° 146 23.12.2013, G.U. 21.02.2014

[3] This is one the most usual claims of prisoners in Italy. Indeed, the prison authorities are in violation of art. 22 of the Penitentiary Law, having not raised prisoners’ salary since 1994.

[4] Decreto Legge NO. n° 146 23.12.2013, G.U. 21.02.2014

[5] DPR 30 maggio 2002 n. 115.

[6] In 2008 medical care has been moved from the competence of Ministry of Justice to the one of Ministry of Health, thus prisoners’ right to health is ruled by D.P.C.M. 30 maggio 2008, n. 126.

[7] DPR 30 maggio 2002 n. 115.

[8] Solitary confinement is always under medical control. In any case it cannot be applied to pregnant women, mothers with children aged up to 6 months and 12 months if breast-feeding.

[9] The first deadline was fixed on March 25th, 2013 (Law No. 9, 17/02/2012). Due to the delays and the persistent inactivity of the Regions it was first extended until April 1st 2014 (Decree No. 24, 25/03/2013) and, after that, to March 31 2015 (law No. 81, 30/05/2014). After this date, no deadline extension was granted by the Government.

[10] A translation of the most important judgments against Italy is provided by the Ministry of Justice; however, this is not the official language of the decision, but only a translation.

[11] Tribunale di Sorveglianza di Firenze, Ordinanza 23/01/2015.

[12] Data coming from regional penitentiary authority (Calabria. Emilia Romagna, Umbria e Veneto – Friuli Venezia Giulia – Trentino Alto Adige) are updated to September 2015, those coming from Lombardia and Toscana are updated to June 2015, those from Sardegna to April 2015.

[13] According to the data of Council Europe, in 2012 the prison capacity of Italy was 45.568 places but the prison population was 65.701: an overcrowding rate of 144% of the overall capacity.