Ill-treatment by prison officers
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant offences as provided by the Italian Criminal Code 54. Article 572 of the Italian Criminal Code (hereinafter “the Criminal Code”) provides that anyone found guilty of ill-treating a member of his or her family, a child under fourteen years of age, or a person under his or her authority or who has been placed in his or her care or custody may be sentenced to a term of imprisonment of up to five years. 55. Article 582 of the Criminal Code provides that anyone who causes bodily harm to another person, resulting in that person ’ s mental or bodily injury, may be sentenced to a term of imprisonment ranging from three months to three years. 56. Article 608 of the Criminal Code provides that a public official who subjects a detainee or a person in his or her custody to punitive measures not provided for by law may be sentenced to a term of imprisonment of up to thirty months. 57. Article 61 of the Criminal Code contains general provisions related to aggravating circumstances. Article 61 § 9 provides that the commission of an offence as the result of abuse of authority or by a public official in the performance of his or her duties constitutes an aggravating circumstance. B. Time- barring of criminal offences 58. The relevant domestic law provisions are set out in Cestaro v. Italy, no. 6884/11, §§ 96-101, 7 April 2015. C. Introduction of the offence of torture into the Italian criminal law framework 59. On 5 March 2014 the Italian Senate approved a bill introducing the offence of torture into the Italian legal system. The bill was subsequently sent to the Chamber of Deputies for approval. The Chamber of Deputies amended the bill and the text was returned to the Senate for reconsideration on 13 April 2015. On 17 May 2017 the Senate approved the bill, with further amendments, and the text once again returned to the Chamber of Deputies for reconsideration. On 5 July 2017 the Chamber of Deputies approved and adopted the final version of the bill. On 18 July 2017 the bill entered into force as Law No. 110 of 14 July 2017. THE LAW I. JOINDER OF THE CASES 60. The Court considers that the applications should be joined, given their related factual and legal background (Rule 42 § 1 of the Rules of Court). II. PRELIMINARY ISSUE 61. Following the second applicant ’ s death on 10 January 2017, his daughter, Ms Gretel Renne, informed the Court of her wish to pursue the application in her father ’ s stead (see paragraph 1 above). 62. In cases in which an applicant has died after lodging an application, the Court has on previous occasions taken into account statements made by the applicant ’ s heirs or close family members expressing their wish to pursue the proceedings before the Court. For the Court ’ s assessment of the person ’ s standing to maintain the application on behalf of a deceased, what is important is not whether the rights at issue are transferable to the heirs but whether the heirs could in principle claim a legitimate interest in requesting the Court to deal with the case on the basis of the applicant ’ s wish to exercise his or her individual and personal right to lodge an application with the Court (see Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014). The Court has accepted that a next of kin or an heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons close to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant ’ s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII). 63. In view of the above, and taking into account the circumstances of the present case, the Court accepts that the second applicant ’ s daughter has a legitimate interest in pursuing the application. It will therefore – at her request – continue dealing with the case. For convenience, it will, however, continue to refer to Mr Renne as the second applicant in the present judgment. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN ITS SUBSTANTIVE ASPECT 64. The applicants submitted that during their detention in the Asti Correctional facility in December 2004, they had suffered acts of violence and ill-treatment which they considered as amounting to torture. They relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 65. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 66. The applicants complained that they had been subjected to various forms of ill-treatment during their detention in the Asti correctional facility in December 2004. 67. The first applicant reiterated the assertion that he had been kept in solitary confinement for more than twenty days, had been stripped of his clothes and detained in a cell with no window panes in winter, in Northern Italy, and that there had been no sink and neither covers nor a mattress on the bed. He further stated that he had been subjected to sleep, food and water deprivation as well as physical violence and verbal abuse. 68. He argued that the intention underlying the treatment was to punish and intimidate him, as the treatment went well beyond security needs. This latter point was reinforced, in the first applicant ’ s view, as the treatment was carried out against a background of systemic ill-treatment existing in the correctional facility, whereby detainees would be subjected to various forms of ill-treatment that prison authorities and staff knew about but about which they remained indifferent. 69. Furthermore, he submitted that even though many years had elapsed since the impugned events, he still suffered from anxiety and depression and had to take medication. 70. The second applicant, drawing on the reconstruction of events set out in the first-instance decision, described the ill- treatment inflicted on him, which consisted of repeated physical violence, including beatings and his hair being ripped out, as well as detention in a solitary confinement cell without clothing for a number of days and with his food being rationed. 71. As to the legal classification of the treatment, both applicants reiterated that they had suffered acts of torture within the meaning of Article 3 of the Convention. (b) The Government 72. The Government did not submit specific observations on the substantive aspect of the complaint under Article 3. 2. The Court ’ s assessment ( a) General principles 73. The Court refers to the general principles concerning the substantive limb of Article 3 as set out in Bouyid v. Belgium [GC], no. 23380/09, § 81 ‑ 90, ECHR 2015 and, recently, in Bartesaghi Gallo and Others v. Italy, nos. 12131/13 and 43390/13, § 111-113, 22 June 2017. 74. The Court reiterates, in particular, that in determining whether a given form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see, amongst many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010 ). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see, amongst many other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 197, ECHR 2012 ). (b) Application of the general principles to the present case ( i ) Establishment of the facts 75. The Court observes at the outset that the Asti District Court found that the impugned events occurred in the manner described by the applicants during the course of the domestic proceedings (see paragraphs 25 - 31 above). The Court sees no cogent reasons to call such findings into question. 76. The Court further observes that the Government did not contest the applicants ’ factual submissions or deny that the events as described by the applicants had occurred. 77. In view of the foregoing, and in the light of all the documentary material in its possession, the Court finds it established that the applicants were subjected to the treatment complained of. ( ii ) Classification of the treatment inflicted on the applicants 78. It remains to be determined whether the impugned treatment can be said to have attained the minimum level of severity to bring it within the scope of Article 3 and, if so, how it is to be classified. 79. The Court will begin by assessing the severity of the treatment to which the applicants were subjected. The Court reiterates that, according to the findings of the domestic court, the first applicant was subjected to repeated physical violence for nineteen days and the second applicant for six days (see paragraph 27 above). With specific regard to the second applicant, his medical records reveal that he sustained injuries and complained about being in pain, and he was ultimately admitted to the hospital with a fractured rib and widespread bruising ( see paragraphs 28 and 51 above ). 80. In addition to the physical suffering the applicants must have endured as a consequence of the physical abuse, the Court considers that the treatment may be regarded as having caused them considerable fear, anguish and mental suffering. As an overarching consideration, the Court is mindful of the fact that the treatment was inflicted in the context of the applicants being in the custody of prison officers, and thus already in a situation of vulnerability (see Bouyid, cited above, § 107 ). The applicants ’ state of further isolation due to their placement in the solitary confinement wing must have intensified their fear, anxiety, and feelings of helplessness. 81. The Court once again notes that the applicants were subjected to physical abuse at all hours of the day and night for many consecutive days ( see paragraph 27 above ). Moreover, the physical abuse was coupled with extremely serious “material” deprivations, which must have inevitably accentuated their suffering. In this latter respect, the applicants were subjected to deprivations and rationing of food and water, and were detained in cells with limited or no access to sanitary facilities, appropriate bedding, or heating. The applicants were further subjected to additional gratuitous acts, such as depriving them of their clothing, which must have entailed elements of humiliation and debasement (see, mutatis mutandis, Hellig v. Germany, no. 20999/05, §§ 52-57, 7 July 2011). 82. In the light of the foregoing, the Court considers that the treatment sustained by the applicants may be characterised as “inhuman treatment causing very serious and cruel suffering” for the purposes of Article 3 ( see Al Nashiri v. Poland, no. 28761/11, § 515, 24 July 2014 ). 83. In the Court ’ s view, the treatment was deliberate and carried out in a premeditated and organised manner. In this connection, the Court notes that the impugned treatment was not confined to one particular moment, namely immediately following the fight between the applicants and the prison officers. It has been clearly established that the applicants endured repeated and sustained assaults and other forms of abuse and deprivations over a number of days. In this connection, note should also be taken of the conclusions reached by the domestic court, which found that the applicants had been subjected not just to isolated acts of harassment and abuse, but to what it defined as measures which had been put into practice in a systematic manner (see paragraph 26 above). 84. The Court further considers that, for the purposes of its assessment as to the deliberate nature of the treatment, the context in which the treatment was inflicted is worthy of particular scrutiny. The domestic court found evidence of the existence of a broader pattern of abuse in the correctional facility at issue, which it labelled a “generalised practice of ill ‑ treatment” (see paragraph 29 above). It emerges from the domestic court ’ s findings that “ problematic ” detainees were routinely exposed to punitive measures that exceeded the bounds of permitted disciplinary or security measures, consisting of placement in solitary confinement cells which in themselves were in a deplorable condition, and where they would be subjected to physical violence and material deprivations. The domestic court highlighted the existence of such a situation in the Asti prison beyond the events concerning the applicants, and provided an account of the practices described above in the text of the judgment (see paragraphs 29 - 31 above). 85. The foregoing considerations also indicate the existence of a purposive element underlying the impugned treatment, namely to punish the detainees, to enforce discipline and to deter future disorderly behaviour in the correctional facility (see paragraphs 29 and 34 above). (iii) Conclusion 86. In view of the above, the Court is persuaded that the treatment to which the applicants were subjected attained the level of severity required to bring the impugned conduct within the scope of Article 3, and that it amounted to torture. 87. There has accordingly been a violation of Article 3 of the Convention in its substantive aspect. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN ITS PROCEDURAL ASPECT 88. The applicants complained that they had suffered a further violation of Article 3 in that the penalty imposed on those responsible for the acts of which they were complaining had been inadequate owing, in particular, to the time-barring in the course of the criminal proceedings. They emphasised that by failing to introduce the offence of torture into the Italian legal framework and to provide for an appropriate penalty for that offence, the State had failed to take the necessary steps to prevent the ill-treatment which they had suffered. 89. As regards the alleged shortcomings in the investigation deriving, in particular, from the absence of an offence of torture in the Italian legal system, the applicants also relied on Article 13 of the Convention, alone and in conjunction with Article 3. However, the Court considers that it should examine the issue of the lack of an effective investigation into the alleged ill-treatment solely under the procedural limb of Article 3 of the Convention. A. Admissibility 90. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicants 91. The applicants submitted that, following the criminal proceedings, the first -instance court had recognised the seriousness of the ill-treatment to which they had been subjected, but that those responsible for that ill ‑ treatment had not been punished. This occurred because the offences with which the prison officers had been charged pursuant to the Italian Criminal Code had become time-barred during the criminal proceedings. 92. They submitted that the Italian legal framework had proved to be inadequate for the purposes of punishing acts of torture and providing the necessary deterrent effect to prevent similar violations from occurring in the future. They contended that Italy must establish a legal framework capable of protecting the rights enshrined in Article 3 of the Convention, and criticised the Italian State for having failed to classify as offences all forms of ill ‑ treatment which constitute torture or inhuman or degrading treatment. This was, moreover, contrary to Italy ’ s international commitments, in particular those arising from the ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 93. They thus concluded that the State had not taken the necessary steps to prevent the acts of torture which they had suffered and to criminalise them in an appropriate manner. 94. The second applicant observed, in particular, that the impossibility of punishing those responsible for acts of torture as a result of the shortcomings in the Italian system runs the risk of supporting a practices that are widespread and nurturing a system that tolerates impunity. 95. As regards disciplinary proceedings against the prison officers, the applicants acknowledged that disciplinary measures had been taken against them. However, they observed that the evidentiary material submitted by the Government reveals that the officers were not suspended from duty during the investigation and the criminal proceedings. 96. In the light of the foregoing, the applicants alleged that the Italian State had failed to comply with the requirements of Article 3 of the Convention, namely to conduct an effective investigation into the acts of torture to which they had been subjected and to mete out adequate punishment to the perpetrators. ( b) The Government 97. The Government observed that the impugned conduct had been closely examined by the Asti District Court, which had recognised the responsibility of the prison officers. 98. The Government argued that both the judicial and disciplinary proceedings against the officers, which had been aimed at uncovering the full extent of the treatment inflicted on the applicants during their detention, had demonstrated the Italian authorities ’ willingness to identify and punish the officers responsible for the impugned acts notwithstanding the time ‑ barring of the criminal proceedings. 99. They contested the applicants ’ contentions regarding disciplinary sanctions. In this respect, the Government stated that the imposition of disciplinary sanctions occurs via proceedings which are subject to procedural guarantees that are comparable to those applied in criminal proceedings. The Government further observed that in the event of criminal proceedings being conducted in parallel with disciplinary proceedings, any final assessment as to the application of disciplinary sanctions and the choice of the sanction concerned must be postponed until the conclusion of the criminal proceedings. The Government pointed out that, in order to answer for the acts perpetrated against the applicants, the prison officers had been held to account before domestic criminal courts and administrative bodies that are known for their seriousness and impartiality, and their responsibility for the impugned events had been established in both sets of proceedings. (c) The third-party interveners: the Nonviolent Radical Party, Transnational and Transparty, the association “ Non c ’ è pace senza giustizia ”, and the Italian Radicals (the former “Italian Radical Party”) 100. The third parties took the view that Italy had failed to comply with the international obligations arising from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They invited the Court to take account of the fact that Italy had ratified the latter instrument in 1989, thereby undertaking to introduce the offence of torture into the Italian legal system. Notwithstanding this undertaking, twenty-five years following the ratification, no legislation criminalising torture had been adopted. 101. They also provided a comparative overview of the criminalisation of torture in a number of European systems. 102. The third parties submitted that, in the absence of a specific offence under Italian domestic law, the offences included in the Criminal Code did not enable acts of torture to be adequately criminalised, thereby precluding the imposition of appropriate penalties proportionate to the seriousness of the acts in question. 103. The third parties further underlined that the Cestaro judgment (cited above) had urged Italy to adopt general measures to address a structural deficiency. They consequently stressed the need to fill a legislative void insofar as the criminalisation of torture and inhuman or degrading treatment is concerned. 104. Lastly, as regards the disciplinary proceedings, the third parties reiterated, with reference, to the Court ’ s judgments Gäfgen v. Germany, cited above, and Saba v. Italy, no. 36629/10, 1 July 2014, that where State agents have been charged with offences involving ill - treatment, they should be suspended from duty while being investigated or tried. 2. The Court ’ s assessment (a) General principles 105. Where an individual makes an arguable claim that he has been ill - treated by the State authorities, in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. The general principles which apply in determining whether such an investigation was effective for the purposes of Article 3 were restated by the Court in Cestaro (cited above, §§ 205-212). ( b) Application of the general principles to the present case 106. The Court notes at the outset that five prison officers were prosecuted and tried in connection with the impugned events, although ultimately no one was convicted on the grounds of the ill-treatment inflicted on the applicants (see paragraphs 24 to 35 above). One officer was acquitted of all charges and the offences for which the remaining officers were prosecuted were all declared statute-barred in the course of the first-instance proceedings (see paragraph 35 above). 107. In the Court ’ s view, and having considered all the material available to it, the latter outcome cannot be attributable to delays or negligence on the part of the domestic judicial authorities. While the Court expresses some concern over the duration of the criminal investigation, it notes that the applicants neither complained about nor provided any evidence indicating unjustified delays on the part of the investigation authorities. In any event, due to its findings set out in paragraph 111 below, the Court does not find it necessary to enquire whether the investigation can be considered as having been conducted with reasonable expedition. 108. As to the conduct of the domestic proceedings, the Court takes the view that the domestic court cannot be criticised for having wrongly assessed the seriousness of the charges against the accused (see, in contrast, Saba, cited above, § 80) or for having used the legislative and punitive provisions of domestic law to prevent the conviction of the prosecuted State agents (see, in contrast, Zeynep Özcan v. Turkey, no. 45906/99, § 43, 20 February 2007). 109. The Court considers, rather, that the domestic court took a very firm stance and in no way sought to justify or downplay the impugned conduct. The domestic court made a genuine effort to establish the facts and to identify the individuals responsible for the treatment inflicted on the applicants. It cannot therefore be denied that the court at issue submitted the case before it to a “scrupulous examination”, as required under Article 3 of the Convention (see Cestaro, cited above, § 206 ). 110. However, the domestic court concluded that, under Italian law, at the time of the decision there existed no legal provision that would allow it to classify the impugned treatment as torture (see paragraph 33 above). The court thus had to turn to other, existing offences, namely the provisions of the Criminal Code relating to abuse of authority against detained persons and the infliction of bodily harm (see paragraph 35 above). The latter offences appear, in the Court ’ s view, incapable of addressing the full range of issues ensuing from the acts of torture which the applicants suffered (see Myumyun v. Bulgaria, no. 67258/13, § 77, 3 November 2015 ). Moreover, they were also subject to statutory limitation periods, a circumstance which in itself sits uneasily with the Court ’ s case ‑ law concerning torture or ill ‑ treatment inflicted by state agents (see Cestaro, cited above, § 208 and Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004 ). 111. Based on the foregoing considerations, the Court considers that the core of the problem resides not in the conduct of the domestic judicial authorities but rather in a systemic deficiency which was characteristic of the Italian criminal law framework at the material time, as had already been identified in Cestaro (cited above, § 225). In the present case, this lacuna in the legal system, and in particular the absence of provisions penalising the practices referred to in Article 3 and, where appropriate, providing for the imposition of adequate penalties, rendered the domestic courts ill-equipped to perform an essential function, namely that of ensuring that treatment contrary to Article 3 perpetrated by State agents does not go unpunished. This, in turn, may be viewed as having had the broader effect of weakening the deterrent power of the judicial system and the vital role it ought to be able to play in upholding the prohibition of torture. 112. The Court is therefore led to the conclusion that the criminal legislation which was applied in the instant case proved, as it did in Cestaro (cited above, § 225), both inadequate in terms of its capacity to punish the acts of torture in issue and devoid of any deterrent effect capable of preventing similar future violations of Article 3. 113. Turning to the issue of disciplinary measures, the Court acknowledges the Government ’ s observations to the effect that disciplinary proceedings were conducted against four prison officers following the conclusion of the criminal proceedings. In this respect, the Court does not question the serious scrutiny to which the prison officers ’ actions were subjected to by the disciplinary bodies and notes that disciplinary measures were imposed as a consequence (see paragraph 44 above ). 114. Whilst acknowledging the importance of disciplinary measures – as it has often recognised in its case ‑ law ( see Gäfgen, cited above, § 121, and Saba, cited above, § 76 ) – the Court nevertheless considers that the imposition of disciplinary sanctions alone cannot be considered an adequate response by the authorities in cases involving acts in breach of one of the core rights of the Convention as serious as the present ones. In this respect, it reiterates that only a criminal prosecution is capable of providing the preventive effect and dissuasive force required to fulfil the requirements of Article 3. 115. Moreover, it is apparent from the material in the case file that the officers were not suspended from duty during the investigation or trial (see paragraph 45 above). The Court has frequently held that, in cases where State agents have been charged with offences involving ill ‑ treatment, they should be suspended from duty while being investigated or tried ( see Cestaro, cited above, § 210 ). The Court stresses the particular significance of such measures in a correctional context. In this connection, it emphasises the importance of safeguards ensuring that persons who may have been the victims of ill-treatment by State officials in custody ‒ who are already in a state of particular vulnerability ‒ are not discouraged, whether directly or indirectly, from lodging complaints or reporting ill-treatment. 116. Having regard to the foregoing findings, the Court concludes that there has been a violation of Article 3 in its procedural limb. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 118. In respect of non-pecuniary damage each applicant claimed 100,000 euros (EUR) or any other amount the Court should find appropriate. 119. The Government contested that amount. 120. Having regard to the seriousness of the violations of the Convention of which the applicants were victims, and ruling on an equitable basis, the Court finds it appropriate to award each applicant EUR 8 0 ,000 in respect of non-pecuniary damage. B. Costs and expenses 121. The applicants also claimed EUR 16,000 each for the costs and expenses incurred before the Court. 122. The Government contested that amount. 123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 8 ,000 each. C. Default interest 124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been violations of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention, both as regards the treatment sustained by the applicants (substantive aspect) and as regards the response by the domestic authorities (procedural aspect). It found in particular that the ill-treatment inflicted on the applicants – which had been deliberate and carried out in a premeditated and organised manner while they were in the custody of prison officers – had amounted to torture. Furthermore, in the Court’s view, the domestic courts had made a genuine effort to establish the facts and to identify the individuals responsible for the treatment inflicted on the applicants. However, those courts had concluded that, under Italian law in force at the time, there was no legal provision allowing them to classify the treatment in question as torture. They had had to turn to other provisions of the Criminal Code, which were subject to statutory limitation periods. As a result of this lacuna in the legal system, the domestic courts had been ill-equipped to ensure that treatment contrary to Article 3 perpetrated by State officials did not go unpunished.