StraLi requests the Italian government to implement the Sy v. Italy decision.
1. INTRODUCTION
The waiting lists for Residential Units for the Execution of Security Measures ("REMS") are a very serious issue (we have already discussed it here). Italy knows this all too well: in January 2022, it was condemned by the European Court of Human Rights ("Court") in the case of Sy v. Italy (Application No. 11971/20-Judgement of 24 January 2022). The reason for the condemnation? Violation of Mr. Sy's rights, a detainee with a severe psychiatric condition, who was held in custody awaiting availability of a place in a REMS.
The European Court found the following violations of the European Convention on Human Rights ("ECHR"): prohibition of inhuman or degrading treatment (Article 3), right to liberty and security (Article 5, paragraphs 1 and 5, including the right to redress for unjust detention), right to a fair trial (Article 6, paragraph 1), and right to individual recourse (Article 34).
In this context, StraLi has submitted a Communication to the Department for the Execution of Judgments of the Court, pursuant to Article 46 of the ECHR and Article 9.2 of the Regulations of the Committee of Ministers.
2. INTERVENTION PURSUANT TO ARTICLE 9.2
Following a final judgment of condemnation by the Court, member states have a dual obligation:
1) Individual level: to restore, as far as possible, the situation that existed before the violation, providing redress for the harm suffered by the injured parties (known as restitutio in integrum). Typically, the remedy ordered by the Court is monetary compensation, although the Court has other tools at its disposal (such as the release of a detained person).
2) General level: to prevent similar violations in the future. This can be achieved through the amendment of applicable legislation, for example.
What does a state do to fulfill these obligations ?
Within six months of the judgment, the state must explain to the Committee of Ministers - composed formally of the Foreign Affairs Ministers of the 46 member states - how it intends to provide justice to the victims of the violation and, at the same time, ensure that the same problem does not recur. This is typically done by submitting an "Action Plan."
3.1. THE GOVERNMENT'S ACTION PLAN AND STRALI'S RESPONSES:
(1) INCREASING REMS CAPACITY
Italy, therefore, has submitted its own Action Plan (actually, two) in relation to the Sy case (jointly with the Citraro and Molino v. Italy cases, which we will not discuss today). And here comes StraLi's role: we have intervened to challenge the Italian government's Action Plans regarding the Sy case. And we did it not once, but twice (first communication, March 9, 2023; second communication, May 9, 2023).
Note: this is not the first time StraLi has taken such initiatives: we also took a position in the Di Sarno and others v. Italy case and the ILVA case.
In the first Action Plan of January 26, 2023, the Italian government stated that it paid "great attention" to the issue "in order to prevent similar events" and that "important steps had been taken in this direction" (Action Plan 1, p. 2).
These "steps" led to extraordinary funding for the Liguria Region for the period 2022-2024 (Decree Law 17/2022) and the opening of a new REMS facility in Grifalco (Calabria) with 20 available beds.
As highlighted in our first communication on March 9, 2023, the creation of new REMS facilities in a single location and solely to "patch up" the lack of available places has serious consequences on the effectiveness of therapeutic treatments and the prospects of individuals' reintegration into society. Allocating funds for a fixed period of three years exclusively to one region, where additional beds are created and patients from other regions are admitted (only to provide them temporary accommodation), contradicts the principle of territoriality of care. The purpose of care, indeed, necessarily relies on the idea of reintegrating the individual into the social fabric that has been "broken" by their antisocial behavior. Individuals in care, uprooted from their context, are unable to establish real contact with local mental health centers, which should be responsible for their care and develop a therapeutic program. They cannot be visited by the psychiatric staff who have been handling their case until then, nor by their loved ones.
For this reason, we have asked the government to create new places in REMS facilities while respecting the principle of territoriality, and to allocate resources to ensure the principle of individualized treatment. Furthermore, we have requested sufficient resources to be allocated to regional mental health departments responsible for developing Individual Therapeutic Rehabilitation Plans and other psychiatric services in the community. This is to reduce the number of people who will need a place in REMS in the future and, consequently, the risk of similar violations recurring.
Le ATSM vivono in assenza di un regolamento unitario che definisca come questi reparti debbano essere organizzati spazialmente (arredi, letti, bagni) o che stabilisca i livelli essenziali di assistenza a cui devono attenersi (si veda la ricerca della Società della Ragione qui, p. 18). In un caso particolare (il reparto “Sestante” del carcere di Torino) il reparto ATSM è stato addirittura chiuso a causa delle sue condizioni disumane ed è in corso un’indagine penale in merito (cfr. il rapporto di Antigone del 2022). In una dichiarazione del 6 febbraio 2023, un rappresentante dei sindacati della Polizia Penitenziaria ha definito l’ATSM del carcere di Marino del Tronto come “un reparto palesemente non a norma sia dal punto di vista strutturale che sanitario”. Da ultimo, il Comitato Anti-Tortura del Consiglio d'Europa nel rapporto del marzo 2023 sull'Italia ha rilevato la totale inadeguatezza delle celle delle ATSM nelle carceri di San Vittore, Torino Lorusso e Cutugno e Regina Coeli.
Ne consegue che le ATSM rappresentano di fatto la peggiore assistenza disponibile per un individuo che, in carcere, non dovrebbe nemmeno passarci un secondo.
3.2. THE ITALIAN GOVERNMENT'S PLAN AND STRALI'S RESPONSE:
(2) THE DAP AND MENTAL HEALTH UNITS
Within its Action Plans, the Government has emphasized multiple times that the Department of Penitentiary Administration (DAP) "continues to pay the utmost attention to ensure that detainees receive the best available assistance" (Action Plan 1, p. 7).
However, the budget law approved in December 2022 included a drastic reduction in the DAP's expenditure budget of approximately 36 million euros for the period 2023-2025 (Art. 1, para. 878, Law no. 197, December 29, 2022). This element, in itself, appears to be in clear conflict with the government's statement.
The situation "in the field" also contradicts the government's commitment. Prisons reveal their inadequacy in managing the psychological and psychiatric distress of inmates. Continuous complaints from correctional officers denounce an intolerable situation that can no longer be addressed.
Recently, the President of the Penitentiary Police Union stated:
In this chaos, correctional officers are not only tasked with surveillance but also with acting as "nurses" to the sick (despite lacking the necessary expertise) and actively saving the lives of individuals who attempt self-harm or harm others.
Not to mention the countless times officers are physically assaulted by problematic individuals. It is evident that this cannot continue.
Furthermore, in the second Action Plan dated April 3, 2023, the Government presents the departments dedicated to mental health within detention centers (known as "Articolazioni per la tutela della salute mentale" - ATSM) as an example of the "best available assistance" for detainees awaiting transfer to a REMS (Action Plan 2, p. 15).
However, this approach is highly problematic because only a few prisons have these psychiatric units, and when they do exist, they have a poor reputation.
ATSM units operate without a unified regulation defining their spatial organization (furniture, beds, bathrooms) or establishing essential levels of care they should adhere to (see Società della Ragione's research here, p. 18).
In a specific case (the "Sestante" unit at Torino prison), the ATSM unit was even closed due to its inhumane conditions, and a criminal investigation is ongoing (see Antigone's report from 2022).
In a statement on February 6, 2023, a representative of the Penitentiary Police Union described the ATSM unit at Marino del Tronto prison as "a unit clearly non-compliant both structurally and in terms of health standards."
Lastly, the Council of Europe's Anti-Torture Committee in it's March 2023 report on Italy highlighted the complete inadequacy of ATSM cells in San Vittore, Torino Lorusso e Cutugno, and Regina Coeli prisons.
Therefore, the ATSM units effectively represent the worst available assistance for an individual who, in prison, should not spend even a second.
3.3. THE ITALIAN GOVERNMENT'S PLAN AND STRALI'S RESPONSE:
(3) THE ABSENCE OF A SPECIFIC REMEDY
Silence reigns.
The Government has not addressed the Court's observation regarding the finding that the civil action for compensation for the damages suffered due to the violation of personal liberty, provided for by Italian law (former Article 2043 of the Civil Code), does not constitute an effective remedy for obtaining redress for violations of paragraphs 1 and 4 of Article 5 of the ECHR.
During the proceedings before the Court, the Italian Government did not provide any examples demonstrating that, in cases similar to Sy's, such action had been initiated. Moreover, the Government did not address the issue in its Action Plans.
We have requested the Committee of Ministers to instruct the Italian authorities to legislate a specific compensatory remedy aimed at obtaining compensation for periods of detention endured while awaiting transfer to a REMS.
As we will see shortly, the Committee has heard our plea.
4.1. THE DECISION OF THE COMMITTEE OF MINISTERS:
(1) INDIVIDUAL MEASURES
The Committee of Ministers convened from 5th to 7th June 2023. Firstly, it did not declare the case closed, indicating that there is still a need for the Court's supervision over Italy.
In the meantime, Mr. Sy has been returned to prison since July 2022 (see communication from the Italian Government on 3rd May 2023). Regarding Mr. Sy's individual situation, the Committee has requested (para. 2):
1) a reassessment of the compatibility of his health condition with his detention status;
2) regular repetition of this assessment; and
3) informing the Committee about the outcomes of points (1) and (2).
4.2. THE DECISION OF THE COMMITTEE OF MINISTERS:
(2) GENERAL MEASURES
As highlighted in our second communication on 9th May 2023, we identified the increase in the number of beds in REMS facilities as the only concrete measure indicated by the Government in the Action Plan. Specifically, we requested the Committee to ensure that the Italian State guarantees:
- Sufficient resources are allocated to regional mental health departments responsible for developing Individual Therapeutic Rehabilitation Plans and other psychiatric services throughout Italy, in order to reduce the overall number of individuals in need of REMS beds (thus reducing the risk of similar violations); and
- An increase in the capacity and quality of treatment in REMS facilities.
StraLi's requests in this regard have been accepted by the Committee of Ministers.
In the agenda notes, they observed that although the number of individuals detained awaiting transfer to REMS facilities had decreased from 90 in April 2020 to 49 in February 2023:
- The REMS network has not significantly expanded since that time (29 in 2020 and 30 in 2023).
- The average waiting time for placement in these facilities following a judicial decision remained extremely high (around ten months) as of July 2021.
- While noting the establishment of a new REMS facility in the Calabria region, it is unclear whether this has been sufficient to ensure the prompt execution of corresponding judicial decisions in this region and whether similar measures have been adopted or planned for the other four regions (Lazio, Campania, Sicily, and Puglia) which, together with Calabria, account for over two-thirds of the total number of individuals detained awaiting admission to REMS facilities.
Consequently, the Committee has requested the following from the Italian State:
1) To commit to ensuring an adequate capacity of REMS facilities, including by providing sufficient human and financial resources, particularly in regions where the situation appears most critical (para. 4).
Unfortunately, nothing is mentioned regarding the reality of ATSM facilities and their inadequacy in accommodating individuals detained awaiting transfer to a REMS facility.
Furthermore, the Committee has instructed the Government to:
2) Provide an assessment of the need for additional measures to ensure that when the Court orders the transfer of an individual to a REMS facility (pursuant to Article 39 of the Court's Rules), it occurs without delay (para. 5).
3) Provide information on the measures taken to ensure that an individual is effectively entitled to a remedy under Article 5.5 of the ECHR (para. 6).
5. CONCLUSION
The Italian authorities must adopt adequate and sufficient measures to ensure that the capacity of REMS facilities meets the demand for access, thereby enabling the timely implementation of judicial decisions ordering the transfer of detainees to such facilities.
Such decision by the Committee of Ministers does not come as a surprise to us.
Last year, the Italian Constitutional Court established that the practical application of existing legislation on REMS to individuals who have committed crimes and have mental disorders is in conflict with the Italian Constitution. The Court declared the questions of legality raised as inadmissible, since accepting them, which would involve overturning a substantial part of the legal framework of REMS, would create intolerable gaps. The Court thus issued a strong warning to the Italian legislative authorities to undertake a comprehensive reform of the system.
Unfortunately, over a year has passed without any sign of legislative activity in this regard.
The execution of the Sy case remains under the supervision of the Court, which will review the measures adopted by the Italian government in one of its upcoming sessions.
In the meantime, we remain vigilant. Because the mental health of those inside is a concern for those outside. And we will not fail to remind everyone of this.
Edited by Alice Giannini