CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 mars 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 33830/96                       by Robert VENETUCCI                       against Italy        The European Commission of Human Rights sitting in private on 2 March 1998, the following members being present:              MM     S. TRECHSEL, President                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            Mr     F. MARTINEZ            Mrs    J. LIDDY            MM     L. LOUCAIDES                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 26 August 1996 by Robert VENETUCCI against Italy and registered on 15 November 1996 under file No. 33830/96;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 11 and      25 June 1997 and the observations in reply submitted by the      applicant on 5 August 1997;   -     the Commission's decision of 12 December 1997 to ask the parties      for supplementary observations;   -     the supplementary observations submitted by the respondent      Government on 9 January 1998 and by the applicant on 31 December      1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a US citizen, born in 1920 and currently detained in Pesaro. Before the Commission, he is represented by Maria Lucia Pizza, a lawyer practising in Pesaro.        The facts of the case, as submitted by the parties, may be summarised as follows:        By a judgment which became final on 5 March 1987, the applicant was sentenced to life imprisonment for aggravated murder. On 30 November 1990, the applicant obtained from the Torino Court supervising the execution of sentences ("Tribunale di Sorveglianza") a first reduction of sentence while he was detained in the prison of Novara.        On 9 October 1991, the applicant was transferred to the prison of Pesaro, after a warning that in Novara he might have been attacked by another person detained in that prison. In Pesaro, the applicant was initially submitted to the strict security regime, provided for by Article 41bis of Law No 354 of 1975; he was thus kept in solitary confinement except for one hour per day when he was released from his prison cell.        The applicant lodged several applications to obtain his transfer to the United States with a view to serving the rest of the sentence in his home country, where his only relatives, his wife and two daughters with their children, lived. Given the refusal of these requests, the applicant went on hunger strike twice and rejected any medical treatment: the first time from 19 to 21 November 1992 and the second time from 18 to 23 June 1993.        In February 1993, the applicant's wife died.        The strict security regime provided for by Article 41bis of Law No 354/1975 was revoked in July 1993. Since then, the applicant has nevertheless been constantly treated in a special way because of the persisting fears for his security. In fact, another person who had been convicted of the same murder had been found dead in prison. Thus, the food for the applicant was prepared by the guards' canteen and was handed to him in a locked suitcase to which only the applicant had the key. For the same reason, the applicant spontaneously renounced the hour he was allowed to spend outdoors, preferring to have contact only with the staff, with whom he had a very good relationship. He was kept under constant surveillance by a prison guard and his cell was equipped with a television camera.        The applicant received visits solely from personnel of the US Embassy, his lawyer and the prison staff. He remained in contact with his relatives in the United States by mail.        On 11 November 1993, the Ancona Court supervising the execution of sentences granted the applicant a second reduction of sentence.        On 2 December 1994, the applicant was diagnosed as suffering from a very serious heart condition requiring surgical treatment, which was however very risky.        On 22 December 1994, the Ancona judge supervising the execution of sentences ("Magistrato di Sorveglianza") granted the applicant special leave for 25-26 December 1994 and 1 January 1995, from 9 a.m. till 8 p.m. On the above-indicated dates, he was thus authorised to leave the prison under certain conditions, such as a police check on leaving the prison and on return. During his leave, the applicant was accompanied by the prison's chaplain. In his decision, the Ancona judge stressed that the applicant's main wish at that point was that his punishment be humanised and, according to the judge, he fully deserved special leave.        In a report drawn up on 14 February 1995, the prison doctor certified that the applicant suffered from heart ischemia which, as shown by the results of the examination of 2 December 1994, called for surgical treatment. The latter however would have been particularly risky in the light of the likely deterioration of the applicant's condition. The doctor concluded that such likely deterioration "could hardly be dealt with in prison" and that "in the light of the applicant's age, of the seriousness of his medical condition and the adverse effects of his detention in the present case, it was requested that the competent judicial authorities take the possible steps provided for by law".        On 14 February 1995, the applicant applied for suspension of the sentence and, in the alternative, early release on compassionate grounds; he pointed out that his detention was incompatible with his medical condition and constituted a "useless aggravation of his suffering" and inhuman treatment in breach of his right to health. His request for suspension of the sentence was refused by the Ancona Court on 6 April 1995 on grounds that the applicant had no place of residence in Italy where he could be assigned to compulsory residence and that his medical condition was being monitored satisfactorily in prison; at the same time the Court recognised that the applicant's behaviour in prison had been excellent. The Court also referred to two medical reports of 14 February and 22 March 1995, stating on the one hand, that the applicant's health condition seemed to be fairly good, even if there was a risk of its worsening, and a surgical operation was inadvisable, and on the other hand, that the condition of the applicant appeared to be stable under pharmacological treatment. The Court finally stressed that the applicant's main wish was not his release but his transfer to the United States, in order to serve the rest of his sentence close to his two daughters. The applicant's request for early release was thus rejected, though he was granted 135 days' reduction of sentence.        On 22 April 1995, the applicant lodged an appeal on points of law on grounds that the Criminal Code did not require a specific place of residence in Italy in order to grant a suspension of sentence, and that his medical condition was so serious that his detention constituted inhuman treatment. By a judgment dated 20 November 1995 and filed with the Registry on 9 January 1996, the Court of Cassation rejected the applicant's appeal.        In the meantime, on 22 May 1995, the applicant was taken to hospital suffering from a heart attack. In a report dated 27 May 1995, the consultant doctor stated that, in the light of the risks of surgical treatment, the applicant could only be treated with medicine.        On 3 June 1995, the applicant applied to the Ancona judge for suspension of the sentence. On 12 June 1995, the judge rejected the application and referred the matter to the Court supervising the execution of sentences. The first hearing before the latter was fixed for 26 October 1995.        In a report dated 23 June 1995, the prison doctor stated that the applicant could have a heart attack at any moment, which could not be satisfactorily dealt with in prison.        As from July 1995, following the prison doctor's report, the applicant was assigned light gardening tasks for about two hours a day (picking dead leaves and watering flower-beds). At the beginning, he was kept under a guard's surveillance while engaged in those tasks, but later on he was left alone, on account of the special leave he had been granted.        At the applicant's request, the hearing before the Ancona Court was brought forward to 14 September 1995. On this day, an expert was appointed by the Court to state whether the applicant's medical condition was compatible with his detention, namely whether the detention would have adverse effects on the applicant's life expectancy.        The expert stated in his report filed with the Registry on 2 October 1995 that, although the applicant appeared to be in reasonably good health, his medical condition was serious and aggravated by the sedentary life he led in prison and by the stress. The expert considered that in order to improve his life expectancy, it was absolutely necessary for the applicant:   -     to live without stress; -     to walk regularly; -     to avoid any emotion and sudden changes of blood pressure; -     to take medicines which could partly make up for the actual      heart damage.        According to the expert, it was not possible for the applicant to fulfil these conditions in prison at that time, as he was obviously subject to continuous stress and he could not walk as much and as often as necessary; the applicant's detention was thus aggravating and perpetuating the risk of a short-term deterioration of his medical condition. Moreover, according to the expert, the applicant could die at any moment. In conclusion, the expert stated that "...any improvements (in the applicant's health) cannot be obtained through a different medical therapy or admission to a specialised hospital, given the impossibility of surgical treatment. If it is sought to prolong and not to endanger the applicant's life, he must be allowed to have a different lifestyle, without the stress and the anguish caused by detention, and to walk extensively. Only on these conditions can the applicant's life expectancy be considered less restricted."        By a decision of 19 October 1995, filed with the Registry on 25 October 1995, the Ancona Court refused the applicant's request. It held that it did not appear from the expert opinion that the applicant, who was admittedly "in rather good health" although at risk of sudden death, could benefit from better medical treatment outside prison. As to the psychological aspect, the Court accepted that the applicant was more sensitive to his environment than usual as a result of his illness. However, it considered that the applicant's situation did not attain the minimum level of severity provided for by the Constitution and did not therefore amount to inhuman treatment. The Court considered that the conditions set out in the expert's report could be met by transferring the applicant to another prison and by letting him follow a therapy specially designed for him (it is to be noted that according to Italian law, the judiciary has no competence to order a detainee's transfer from one prison to another; besides, in a situation such as that of the applicant, a transfer could be decided on only with the latter's consent).        On 9 November 1995 the applicant appealed on points of law against this decision. He claimed in particular that an hour's walk within prison was not sufficient and that his being kept in detention, notwithstanding the clear incompatibility of detention with his medical condition, clearly amounted to inhuman treatment.        By a judgment of 4 March 1996, the Court of Cassation rejected the appeal, on the grounds that it did not appear that the applicant would benefit from more suitable medical treatment outside prison and that, in case of emergency, he could be taken to an external hospital. Moreover, a possible transfer of the applicant to another prison and medical treatment specially designed for him could effectively contribute to avoiding a risk of deterioration of his medical condition.        Another request for the suspension of the punishment seems to have been pending since 1995.        After the first special leave granted in December 1994, the applicant was granted leave on several other occasions, in particular:   -     from 16 to 18 April 1995, between 8 a.m. and 9 p.m.;   -     on 25-26 December, 31 December 1995 and 1 January 1996, between      9 a.m. and 9 p.m.;   -     from 7 to 9 April 1996, between 9 a.m. and 9 p.m.;   -     from 20 to 22 May 1996, between 9 a.m. and 10 p.m.;   -     from 29 to 31 July 1996, between 9 a.m. and 10 p.m.;   -     during nine full days from 24 December 1996 to 2 January 1997;   -     during ten full days from 27 March to 6 April 1997.        The decisions granting the above special leave to the applicant all emphasised the excellent behaviour and personal attitude of the applicant and pointed out that the latter always strictly abided by the conditions attached to the special leave.        During the latest of such leave periods, when the applicant was allowed to stay out of prison overnight, he was accompanied by the prison's chaplain or his lawyer and was sometimes accommodated in the parish church of the prison's chaplain for the night.        The applicant has always ruled out a possible transfer to another prison in Italy, given his excellent relationship with the staff of the prison of Pesaro, and has repeatedly stated that his main requests were either to be set at liberty or to be transferred to a prison in the United States.        In the prison of Pesaro, the applicant occupies a cell having a surface of 3.35 x 2.30 metres, plus a bathroom of 4.52 x 2.07 metres. He is accommodated alone, as for the above-mentioned security reasons concerning the applicant's safety, he has always been kept in solitary confinement. On the other hand, the applicant himself has constantly asked not to have contacts with other detainees, with only a few exceptions.        The internal prison courtyard measures about 150 square metres and the external areas about 40,000 square metres. The applicant can move freely in almost all internal parts of the prison. He takes care in particular of 5,000 square metres of flower-beds and of a colony of about thirty cats. The applicant normally spends most of the morning and a few hours in the afternoon outside his cell, for a total of about five hours a day.        The applicant is at present undergoing pharmacological treatment and regular cardiological examinations. This appears from a certificate of the medical service of the Pesaro prison, which the applicant has not contested.        So far, the applicant has been granted 945 days' reduction of sentence in all.        The applicant also presented petitions for a pardon but they have all been rejected.        However, after several negative decisions the Italian Ministry of Justice has finally accepted the applicant's latest request to be transferred to the United States to serve his sentence there and on 30 June 1997, the Court of Appeal of Milan gave a favourable opinion on the further serving of the applicant's sentence in the United States. The applicant's transfer to the United States now depends solely on the consent of the competent authorities of the United States.   COMPLAINT        The applicant alleges that the refusal to suspend his sentence constituted a violation of Article 3 of the Convention, in that his detention is aggravating the risk of a short-term deterioration of his very serious medical condition.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 26 August 1996 and registered on 15 November 1996.        On 17 April 1997, the Commission decided that the application be granted priority pursuant to Rule 33 of the Commission's Rules of Procedure and be communicated to the respondent Government.        The Government's written observations were submitted on 11 and 25 June 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 5 August 1997.        On 12 December 1997, the Commission decided to ask the parties for supplementary observations. Such observations were submitted by the respondent Government on 9 January 1998 and by the applicant on 31 December 1997.   THE LAW        The applicant alleges that the refusal to suspend his sentence constituted a violation of Article 3 (Art. 3) of the Convention, in that his detention is aggravating the risk of a short-term deterioration of his very serious medical condition.        Article 3 (Art. 3) of the Convention provides that "no one shall be subjected to torture or to inhuman or degrading treatment or punishment".        The Government submit that in the light of the various measures taken by the Italian authorities to improve the conditions of the applicant's detention, such as his assignment to gardening tasks or the grant of special leave, the applicant's situation is in conformity with Article 3 (Art. 3) of the Convention. The Government point out in particular that the applicant has never asked to be transferred to another prison in Italy, given the fact that his situation in the prison of Pesaro and his relationship with its staff have always been excellent. The Government also stress that the applicant could never have been moved to another prison without his consent and that the indications as to this possibility given by the Ancona Court cannot be interpreted as "recommendations".        The applicant points out, inter alia, that the Government have not referred to his health condition and his closely linked psychological state, resulting from the distance from his family and the impossibility of visits from its surviving members (his wife died in February 1993 without having been able to speak to him on the telephone). In particular, according to the applicant, the Government seem to underestimate the psychological stress for a seventy-seven year old man, who has been detained abroad for fourteen years, eleven of which in solitary confinement, and who, when at liberty, had already had two heart attacks. In these conditions, only the suspension of the punishment could save his life. In this regard, the applicant points out that Italian law does not require that the detainee provide an alternative abode in the country and that he could be accommodated in the parish church of the prison chaplain, as has occurred twice during his special leave, or that he could find different accommodation.        Moreover, it should be noted that initially the Ancona Court rejected the applicant's request for suspension on grounds that he had no alternative abode on Italian territory, but that reason was not referred to in a subsequent decision, notwithstanding the fact that the expert had clearly indicated that the state of detention was incompatible with the applicant's health.        The Commission recalls first of all its constant case-law according to which ill-treatment must attain a minimum level of severity, taking into account all the circumstances, to fall within the scope of Article 3 (Art. 3) of the Convention (see e.g. No. 21951/93, Dec. 12.1.95, D.R. 80, p. 108; No. 24088/95, Dec. 12.10.94, D.R. 79, p. 138).        The Commission further recalls that "issues may arise under Article 3 (Art. 3) in relation to any lawful sentence of imprisonment as regards the manner of its execution ..." (see e.g. No. 7994/77, Dec. 6.5.78, Collection 14 pp. 238, 240). The Commission further recalls that "inhuman treatment may be found to exist in certain circumstances when a person's detention as such causes his ill-health. In such cases however the Commission will examine in particular the medical treatment at that person's disposal. Moreover, there remains the State's obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due respect for the ordinary and reasonable requirements of imprisonment"; the Commission must therefore turn first to the applicant's state of health and the treatment he required, and then examine whether the treatment provided was adequate (cf. No. 13407/87, Dec. 10.03.88, D.R. 55, p. 279; Bonnechaux v. Switzerland, Comm. Rep. 5.12.75, D.R. 18, pp. 100, 123, 124 and No. 8317/78, Dec. 15.5.80, D.R. 20, p. 44).        The Commission notes that the applicant's state of health cannot be imputed to his detention as such. Nevertheless, it is clear that although the experts appointed by the competent Italian courts have indicated that the applicant appears to be in reasonably good health (see e.g. the expert's report filed on 2 October 1995), the state of detention has inevitably a certain impact on the applicant's heart ischemia, as has been pointed out by the same experts who have examined him.        The fact that the applicant has not been transferred to another prison in Italy cannot be considered as being conclusive in itself. By indicating such a possibility, the Ancona Court merely made a suggestion as to one of the possible measures which could be taken to improve the applicant's situation. Above all, the latter has always refused a transfer to another prison in Italy and it clearly appears from the case-file, as well as from the applicant's allegations, that he considers the treatment he is receiving in the prison of Pesaro as being satisfactory.        The Commission notes that in this prison, the applicant benefits from several specific measures designed to take account of his situation. In particular:   -     the applicant occupies by himself a whole cell equipped with a      private bathroom;   -     he spends several hours per day outside his cell and is assigned      some tasks, most of them outdoors;   -     he is under constant medical treatment and check-up;   -     he has an excellent relationship with the prison staff;   -     he has benefited several times from special leave, the most      recent periods of leave having lasted for some days.        The Commission considers that it is difficult to say what more the Italian authorities could have done to improve the applicant's situation. On the other hand, given the fact that the applicant has no residence or family in Italy, it is highly unlikely that the risks for his health would be reduced if he was released. Besides, the applicant has not proved that in such a case he would have available better medical treatment than that given to him in prison.        Moreover, it appears from the case-file that the main aim of the applicant is to be transferred to the United States to serve the rest of his sentence closer to his two daughters. In this respect, it must be recalled that the Convention does not grant prisoners the right to choose the place of detention and that the separation from their family are inevitable consequences of their detention (see, for example, No. 5229/71, Dec. 5.10.72, Collection 42, p. 140, and No. 23241/94, Dec. 20.10.94, D.R. 79-B, p. 125). In any event, the Italian authorities have granted the applicant's latest request to be transferred and his actual transfer to a prison in the United States is only awaiting a positive response by the competent authorities of the United States.        In such circumstances and taking account of the overall situation of the applicant as well as of the inevitable consequences of his state of detention, the Commission concludes that the situation the applicant complains of has not attained the minimum level of severity required by Article 3 (Art. 3) of the Convention (cf. Eur. Court HR, Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, par. 162).        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.             M. de SALVIA                         S. TRECHSEL           Secretary                             President       to the Commission                    of the Commission