CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 novembre 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF2E0A612 { margin-top:48pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s780F5245 { border:0.75pt solid #000000; clear:both } .sE77B86B8 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-top:1pt; padding-right:4pt; padding-left:4pt } .sEC28DD31 { margin-top:0pt; margin-bottom:0pt; text-align:justify; padding-right:4pt; padding-left:4pt } .s55E5497F { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; padding-right:4pt; padding-left:4pt; padding-bottom:1pt; font-size:10pt } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA43C3626 { width:28.35pt; font-family:Arial; display:inline-block } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sD0A217A5 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-indent:-18.45pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3936C9DD { width:11.78pt; font:7pt 'Times New Roman'; display:inline-block } .sBB64854C { width:8.45pt; font:7pt 'Times New Roman'; display:inline-block } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sE8F2C496 { width:5.11pt; font:7pt 'Times New Roman'; display:inline-block } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s8E8EE1D2 { margin-top:6pt; margin-left:21.25pt; margin-bottom:14pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; font-size:10pt } .sAB798EC2 { width:3.78pt; font:7pt 'Times New Roman'; display:inline-block } .sDBF374D0 { margin-top:0pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s5BDECA8 { width:5pt; font:7pt 'Times New Roman'; display:inline-block } .s5C494981 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid } .s3BF0B6C7 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7C9EDFAD { margin-top:14pt; margin-left:34pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s54B12A03 { width:6.99pt; font:7pt 'Times New Roman'; display:inline-block } .sED360BAA { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; font-size:10pt } .s71220C2D { margin-top:0pt; margin-left:18.45pt; margin-bottom:12pt; text-indent:-18.45pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6B38CF35 { margin-top:0pt; margin-left:34pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sCD8A63C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; widows:0; orphans:0; font-size:10pt } .s9907A839 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; widows:0; orphans:0; font-size:10pt } .s10FEB019 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; widows:0; orphans:0 } .s3F0D5878 { width:5.66pt; font:7pt 'Times New Roman'; display:inline-block } .s390AEC51 { margin-top:0pt; margin-left:64.05pt; margin-bottom:0pt; text-indent:-17.85pt; text-align:justify; font-size:10pt } .s60C44206 { font-family:Symbol } .s61BFB6EB { width:12.36pt; font:7pt 'Times New Roman'; display:inline-block } .s488D0C1A { margin-top:0pt; margin-left:64.05pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s277A2A3A { margin-top:6pt; margin-left:49.3pt; margin-bottom:6pt; text-indent:14.75pt; text-align:justify; font-size:10pt } .s9A6E8000 { width:6.34pt; font:7pt 'Times New Roman'; display:inline-block } .s81EF3014 { margin-top:14pt; margin-left:34pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD998142 { margin-top:14pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sB706BD6C { margin-left:11.67pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:6.18pt; font-family:Arial; text-transform:uppercase } .sF54F3725 { margin-top:0pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sDBC81028 { width:4.83pt; font:7pt 'Times New Roman'; display:inline-block } .s65DDED6B { margin-top:14pt; margin-left:42.55pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s7AE800C3 { width:4.28pt; font:7pt 'Times New Roman'; display:inline-block } .s55F67FD3 { margin-top:0pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s3970C00F { width:8.17pt; font:7pt 'Times New Roman'; display:inline-block } .sCD82236A { margin-top:14pt; margin-left:51.05pt; margin-bottom:6pt; text-indent:-17.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; line-height:113%; font-size:10pt } .s320E5A8E { width:5.95pt; font:7pt 'Times New Roman'; display:inline-block } .sFABD3260 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-19.8pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s16F6432D { width:7.9pt; font:7pt 'Times New Roman'; display:inline-block } .sFF8BF293 { width:8.05pt; font:7pt 'Times New Roman'; display:inline-block } .sA6765C01 { margin-top:14pt; margin-left:62.35pt; margin-bottom:6pt; text-indent:-11.3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFA550501 { width:6.3pt; font:7pt 'Times New Roman'; display:inline-block } .s1B1D10B4 { margin-top:14pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7B868B6A { width:9.85pt; font:7pt 'Times New Roman'; display:inline-block } .s448F0C15 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF0C78780 { margin-top:14pt; margin-left:17pt; margin-bottom:3pt; text-indent:-17pt; text-align:justify; font-family:Arial } .sFBC99493 { font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s5165BC52 { margin-left:17pt } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s31FAC864 { margin-left:17.05pt; text-indent:-17.05pt; list-style-position:inside } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s264C04A0 { margin-left:17.05pt; text-indent:-17.05pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s95770030 { margin-top:30pt; margin-bottom:0pt } .sA7186A9D { width:36.9pt; font-family:Arial; display:inline-block } .s7B051ABA { width:164.45pt; font-family:Arial; display:inline-block } .s1E019DFF { width:46.56pt; font-family:Arial; display:inline-block } .sA49AD2E4 { width:177.11pt; font-family:Arial; display:inline-block } .fixListIndent { list-style-position: inside }   FIRST SECTION CASE OF LAVORGNA v. ITALY (Application no.   8436/21)     JUDGMENT   Art 3 (substantive and procedural) • Inhuman and degrading treatment • Mechanical restraint of the applicant to his bed for almost eight days during his compulsory confinement in a psychiatric hospital ward • Initial imposition of restraint measure strictly necessary to prevent him from harming himself or others • Continuation of measure, for an extraordinarily long period, not strictly necessary and not respectful of the applicant’s human dignity • Not proven that measure did not expose applicant to pain and suffering • Ineffective investigation   Prepared by the Registry. Does not bind the Court.   STRASBOURG 7   November 2024   FINAL   07/02/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lavorgna v.   Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić , President ,   Krzysztof Wojtyczek,   Lətif Hüseynov,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato,   Alain Chablais , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the application (no.   8436/21) against the Italian Republic lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr   Matteo Lavorgna (“the applicant”), on 29   January 2021; the decision to give notice to the Italian Government (“the Government”) of the complaints concerning Article   3; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Garante nazionale dei diritti delle persone detenute o private della libertà personale (“ Garante ”) and jointly by L’altro Diritto ODV , La Società della ragione ONLUS , and the Fondazione Franca e Franco Basaglia , who were granted leave to intervene by the President of the Section; Having deliberated in private on 8   October 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the applicant’s complaints, under Article   3 of the Convention, about his alleged ill-treatment during his confinement in a hospital psychiatric ward ( Servizio psichiatrico di diagnosi e cura – “SPDC”), and the criminal investigation which ensued. THE FACTS 2.     The applicant was born in 1995 and lives in Segrate. He was represented by Ms   A. Mascia and Ms   A. Calcaterra, lawyers practising in Verona. 3.     The Government were represented by their Agent, Mr   L. D’Ascia, and by Mr   T. Marsh and Mr   M. Di Benedetto, Avvocati dello Stato . 4.     The facts of the case may be summarised as follows. I.         Background to the case 5.     The applicant suffered from a psychotic disorder not otherwise specified ( psicosi non altrimenti specificata – “PNAS”). 6.     The applicant’s medical history, as it appears from the documents submitted by the parties, included three hospitalisations in 2013 with diagnoses of, inter alia , substance-induced psychosis and substance abuse. He was also hospitalised between 11 and 16   July 2014, having threatened his mother with a knife, with a diagnosis of PNAS. II.       Circumstances of the applicant’s hospitalisation in the Melzo Hospital psychiatric ward 7.     On 30   September 2014 the applicant was admitted to the SPDC of the Santa Maria delle Stelle Hospital in Melzo as a voluntary patient ( ricovero volontario ) on the advice of his psychiatrist, who considered that the applicant was in a situation of acute crisis which could not be managed on an out-patient basis. He had thus recommended the applicant’s hospitalisation in order to carry out a therapeutic re-evaluation in a protected environment. 8.     On 7   October 2014 the applicant received a visit from his parents and requested that he be discharged from hospital. The hospital psychiatrists replied that he would need to remain hospitalised for an additional period of four days as the set of symptoms he had displayed upon admission had not been resolved and the re-evaluation of his psychopharmacological therapy had not yet been completed. As can be seen from the daily medical register, the applicant reacted with physical aggression towards his father, and subsequently towards his mother and the chief physician. In that context the medical staff decided to apply mechanical restraints (see relevant extracts from the medical register in paragraph   17 below). 9.     On the same day a compulsory treatment order ( trattamento sanitario obbligatorio ) was requested with a view to prolonging the applicant’s hospitalisation, which he no longer voluntarily accepted. The request indicated that the applicant was in a state of psychomotor agitation, had displayed aggressiveness towards others, and had been diagnosed with PNAS. 10.     On 13   October 2014 the compulsory treatment order was renewed. 11 .     On 14   October 2014 two psychiatrists lodged an urgent notification of social danger ( segnalazione urgente di pericolosità sociale ) with the directorate of the Melzo local health authority ( direzione sanitaria ), the Milan prosecutor’s office, and the carabinieri . They stated that on 7   October 2014 the applicant had attacked his parents and one of the doctors at the hospital, and that he had done so in an uncontrolled, impulsive manner. They highlighted, amongst other things, that the applicant’s clinical picture disclosed a failure on his part to critically analyse his own actions as well as a lack of awareness of the seriousness of the violent incident. They concluded the notification report as follows: “The overriding need to ensure the physical safety of other patients and staff requires [that the applicant be] physically restrained, which is problematic to manage in the long term as well as ethically questionable. There is currently an issue of custody and of containment of a social danger that goes beyond clinical intervention in the strict sense and for which we are neither competent nor structurally equipped. We therefore call for urgent measures, within your competence, to allow for suitable clinical observation to continue in a more appropriate context.” 12.     On 15   October 2014 the use of mechanical restraints was discontinued. 13.     On 19   October 2014 the compulsory treatment order was lifted. 14.     On 20   October 2014 one of the psychiatrists made a record to the effect that the applicant was being kept under pharmacological sedation. 15.     On 23   October 2014 the doctors started to gradually decrease the sedation. 16.     On 27   October 2014 the applicant was discharged from the hospital and admitted to another hospital; the admission report described him as appearing sedated. III.     Extracts from the daily medical register 17 .     The relevant parts of the daily medical register ( diario clinico ) pertaining to the month of October 2014, in so far as legible, indicate as follows: 7   October (Day 1) “10.00: Isolated, remains in bed. 15.00: During the visit of his parents he reactivates and attacks his father again. An intervention with a view to restraint is necessary, with the calling in of reinforcement staff and the involvement of an anaesthetist. During the altercation he assaults his mother (who is taken to the emergency room) and medical staff (the chief physician). 16.45: [separate entry by the anaesthetist called to intervene] Pantoclastic crisis ongoing. ... repeated attempts at polypharmacological sedation ... 17.15: [We] Manage[d] to restrain him and transfer him to the bed. Compulsory hospitalisation order requested.” 8   October (Day 2) “01.00: The patient woke up; appears completely uncritical towards the serious aggressive behaviour [he displayed yesterday] afternoon (he assaulted his mother, causing an injury to her ear drum, and then the chief physician, fracturing his nose), [and] would like to be unrestrained. Does not seem at all ‘repentant’; ...the restraints are maintained given the above-mentioned context that protracts a situation of active and current danger. 09.40: Awake again. Asks for the restraints to be removed in aggressive and threatening manner. Already took the morning treatment. 12.00: Attempted to re-examine the incident of the previous day with the aim of reviewing what led to the patient’s aggressive reaction; the situation became complicated when the patient realised that his mother was also hesitant about his request to be taken home, mainly for fear of aggressive reactions [towards] the family. 13.00: Treatment reviewed. 14.30: The patient appears lucid, not sedated. Afternoon treatment administered. [He is] angry, does not understand why he is restrained, and reports that what had happened the previous day had the objective of going home to his family. When questioned about the personal injuries inflicted on both his mother and the chief physician, he does not appear to understand the seriousness of the incident. His upper limbs are intermittently released from the restraints. He eats and receives assistance with hygiene and changing his shirt. High risk of violence towards others persists in light of, among other things, his uncritical attitude ( acriticità ). Restraint of four limbs remains in place. Vital signs normal. 18.00: Patient refuses to eat with the assistance of nursing staff and only asks to smoke; Completely uncritical and at the same time lucid with regard to his violence against others ... [and] adamant as to his request to be discharged.” 9   October (Day 3) “09.30: Patient restrained to the bed, lucid, coherent. Voluntarily takes therapy. He remains uncritical of the seriousness of his actions, which he interprets from a persecutory perspective ‘I have been attacked’, ‘it is you who did not let me go home’, ‘mum is an accomplice because she does not want me anymore’. Asks to speak to his mother on the phone and asks to be taken home. He underwent, with the assistance of nursing staff, physiotherapy for his lower limbs. ... It is decided to maintain restraint on all four limbs in view of his persistent uncritical attitude and the risk of further aggressive behaviour if his request to go home is not complied with. A wrist X-ray, which will be done at the bed, has been requested as he complains of pain. 10.30: Sedative therapy is modified. 16.00: Contacted a colleague specialised in internal medicine to whom the situation requiring restraint was explained. Advises treatment ...” 10   October (Day 4) “08.15: Remained restrained during the night. Good vital signs. Sleep monitored. 09.00: Awake, had breakfast. Not sedated during the consultation; he asks to be unrestrained and ... when he will be discharged. Critical assessment of what happened remains very partial, continues to feel as though he was the victim of aggression ...” 11   October (Day 5) “11.15: patient [is] calm, formally cooperative, reports “repentance” regarding the other day’s actions. However, this statement appears to be rather superficial as he somehow justifies his behaviour as a reaction to a provocation by others. At my insistence on the subject, he asks me if I consider him bad and what his future would be (in terms of the consequences of his actions). Mostly discussed the [not legible] of his impulses and what strategies to adopt. Remains restrained at four limbs.” 12 October (Day 6) “09.00: Calm but not sedated. He asks to be released from the restraint but [continues to minimise] the incident; when the subject is insisted upon he justifies [his] aggressive behaviour ... He does not want to talk about what happened in order ‘not to ... be constantly reminded of it’. Attempts made at telling the patient that, after what happened, he cannot be discharged until [it can be verified that he has become] better at managing feelings of tension and anger, especially towards his parents. Hinted that, in the light of [his] aggressive behaviour there may be consequences as regards his future placement. Medication is increased due to failed [sedation] and in view of partial removal of restraints.   13.00: One limb unrestrained[; the patient] smoked and ate. Monitoring of vital signs continues. 1.30 [p.m.]: telephone update with [his] mother 14.30: Clinical situation assessed and it is decided to begin by removing the restraint on one limb in alternation, given that the nursing staff on duty is the same as was on duty on the date of the incident ... 17.00: The restraint is maintained on three limbs with one arm being left free. ... Not sedated but calm; he asks to be allowed to get up to wash himself and walk around in the next few days. He declares that he is ‘repentant’.” 13 October (Day 7) “08.30: Last night after dinner he fell asleep and rested all night. He was not woken up for the pharmacological treatment [scheduled at] 21.00. This morning he woke up for breakfast. Sedation modified. 11.00: The compulsory hospitalisation order is renewed. 15.00: Agreed with the patient that the restraints would be removed temporarily for a few hours. 16.30: Restraints were removed and he took care of his personal hygiene, changed his clothes, and smoked. He agreed to be restrained again with one arm left free. During the consultation he oscillates between inquiries on the condition of the people he attacked, requests to meet his mother, and repetitions of ‘he was [attacked] too’ and that he was ‘only talking to his mother’. No sedation ...” 14 October (Day 8) “08.45: Restraints on three limbs (right arm free). Appears calm, asks for explanations as to how the attack unfolded and who attacked whom. This morning the restraints were removed from his upper limbs to allow [him to move and attend to his] personal hygiene. ... 14.00: The restraints were removed to allow him to use the bathroom. Agrees to be restrained again to receive a visit from his mother and grandfather. In the presence of his mother he reiterates that it was not only he who [was guilty of] assault but that he had [also] been assaulted by four persons. Also, as regards the slap [he gave] to his mother (causing eardrum laceration) [he] repeats that, after all, his mother had also given him a few ‘slaps’ as a child. 14.30: Despite having taken sedative medication ... [he] does not appear sedated at all. [New treatment ordered.] Internal medicine consultation carried out. 17.00: Meeting with mother and grandfather following an examination of the patient   ...” 15 October (Day 9) “09.00: During the night he rested. Calm on waking up. ... asks that the restraints be removed, which is done in order for him to use the bathroom and take a shower. Partially sedated. 16.00: Calm during his mother and grandfather’s visit. Remained unrestrained. ...” IV.    Criminal complaint against medical personnel and the ensuing investigation A.    The applicant’s criminal complaint 18.     On 25   November 2015 the applicant lodged a criminal complaint against two doctors of the Melzo hospital SPDC alleging   ill-treatment (Article   572 of the Italian Criminal Code), false imprisonment (Article   605) and criminal coercion (Article   610) on account, inter alia , of the alleged lack of justification for his mechanical restraint. 19.     The applicant highlighted the inordinately lengthy period during which he had been forcibly immobilised and submitted that medical personnel had intentionally and arbitrarily subjected him to a highly coercive measure which had been implemented in an inhuman and degrading manner, causing him intense physical and psychological suffering. 20.     He also complained about the failure to ensure adequate mobility for his limbs during the period in which he was restrained, and of the additional burden constituted by the prohibition on receiving visits from his parents between 7 and 14   October despite his young age (he had been nineteen years old at the material time). 21.     Moreover, the measure had been, in his view, devoid of all proportionality on account of its inordinate duration – that is eight consecutive days of having all four limbs restrained, admittedly with some short and sporadic moments of freedom. 22.     As regards the absence of justification for the measure, he emphasised that, from both a legal and an ethical point of view, mechanical restraint may be resorted to only in situations of urgency in which such a measure is strictly necessary for the purpose of averting an imminent and serious danger of self ‑ harm or of harm to others. 23.     Moreover, mechanical restraint might only be applied for the time required to deal with the situation leading to its application and so, once the danger has subsided, the measure is no longer justified and must accordingly be disapplied. The applicant’s mechanical restraint had not respected the foregoing conditions for a number of reasons. He stated that after the restraint had been applied on 7   October he had been sedated and asleep until 1 a.m. on 8   October   2014, and thus questioned the purported necessity of prolonging his restraint, as opposed to merely having him kept under observation by the nursing staff. He contended that his continued restraint had served a merely precautionary function, namely that of preventing a future potential risk of a repeat of aggressive behaviour and simplifying the management of a difficult patient. That rendered the restraint unjustified. He highlighted the fact that, with the exception of an entry on 8   October 2014 in which it was reported that he had asked to be let out of the restraints in an aggressive and threatening manner – which in any event would not in and of itself serve to justify restraint – there was nothing in the medical register indicating any further episodes of verbal or physical aggressiveness. On the contrary, the entries in the medical register from 9   October 2014 onwards described the applicant as non-confrontational, calm and cooperative. He emphasised the fact that two doctors had admitted to not being competent or structurally equipped to look after him during his compulsory hospitalisation. 24 .     In the applicant’s view, mechanical restraint had to be used in the absence of alternatives, in other words as a matter of last resort. That had not been the case, as his restraint was not a solution that had been reached after having unsuccessfully attempted to manage his aggressiveness by other means. In the days following his initial immobilisation, mechanical restraint, coupled with sedation, had continued to be the only means adopted to manage him. The applicant further contended that the medical staff had made his release from mechanical restraint conditional on his “repentance” for his actions, as his progressive release only began once he had declared his contrition. That, according to the applicant, would amount to a “pedagogical” use of restraint, a use of the measure condemned by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”). 25.     The applicant argued that the medical personnel against whom the criminal complaint had been lodged had intentionally and consciously carried out the actions constituting the criminal offences at issue. B.    The criminal investigation 26.     On 19   February 2016 an investigation into the applicant’s allegations was opened. 1.      Medical expert assessment obtained by the prosecutor 27 .     On 20   June 2016 the public prosecutor at the Milan District Court appointed a medical expert to make the following assessments: whether the guidelines and protocol on physical restraint, as in force at the relevant time, complied with the law; whether they had been respected in the case under scrutiny; whether the pharmacological treatment had complied with the relevant guidelines; and whether restraint had been necessary or only appropriate ( opportuna ). 28.     On 20   November 2016 the expert submitted his report. 29.     The expert described the events of 7   October 2014. He emphasised the fact that the patient had reacted with a very significant display of aggression to the decision not to discharge him, to the point of causing injuries to both his mother and a doctor. Thus, the measure had been adopted following a concrete act of violence against others. Referring to the applicable restraint guidelines in force at the Melzo SPDC, the expert considered that the mechanical restraint of the patient had met the protocol’s requirements. 30.     As to the continuation of the measure, the expert described the overall length of the period of mechanical restraint as having been “unusually prolonged”, and referred to the relevant guidelines and protocols, which all recommended limiting it as much as possible. He also conceded that the doctors could have tried to reduce its duration and made more attempts to suspend the measure. He considered, however, that they had not been faced with an objective fact on which to base their decision while the applicant had been restrained (since he could not have engaged in aggressive behaviour during that time) but that they had had to deal with a subjectively perceived risk instead. In that connection, he acknowledged that the doctors had checked the applicant daily throughout the application of the measure and had assured themselves that the serious psychopathological condition he had been suffering from was persisting. The persistence of the condition, which was psychotic in nature and accompanied by paranoiac tendencies, could itself be considered as rendering probable the repetition of aggressive conduct. 31.     The expert concluded that negligence and imprudence on the doctors’ part could be ruled out. He stated that, at most, he could identify an excess of interventionism on their part, but certainly not carelessness or neglect. He considered that one could also hypothesise the existence of an “excess of prudence” justified by a “perhaps excessive and unfounded fear of the possible negative consequences [of a] suspension of restraint”. 32 .     He also concluded that wilful misconduct could be ruled out since the psychiatrists had followed the guidelines and protocols approved by the Lombardy Region and used in the psychiatric ward. Behaviour that could be considered “slight negligence” could be hypothesised, in his view, as arising from the prolongation of the mechanical restraint “for an excessive period of time”, with reference to the recommendations of clinical and scientific authorities. However, he highlighted that that type of liability was not relevant in a criminal context. 2.      Prosecutor’s request to discontinue proceedings 33 .     On 7   February 2019 the   public   prosecutor filed a request with the Milan District Court preliminary investigations judge that the proceedings be discontinued. 34.     The public prosecutor pointed out that coercive treatment and, in particular, the use of physical force, is limited by law to contexts of compulsory hospitalisation, and that restraint measures must be aimed at avoiding an immediate danger of patients harming themselves or others. Such measures may only be applied for the time strictly necessary for that purpose. He cited case-law on psychiatrists’ duty of care towards their patients, which included the possibility of taking measures limiting patients’ personal liberty in order to protect them or others. In that connection, and turning to the justification of the mechanical restraint measure, he considered, inter   alia , that the duty incumbent on the medical staff to protect the life and health of patients in their care entailed that, if certain conditions existed, they were under an obligation to use restraint and did not have a choice. 35.     He relied on guidelines issued by the Italian Society of Psychiatry on restraint, which pointed to an existing consensus in national and international scientific literature on the subject of mechanical restraint to the effect that it can only be justified in the face of a concrete, imminent risk of violence (whether against others or in the form of self-harm). He noted that the most critical element in such an analysis was the subjective nature of the perception of risk, entailing that its assessment would vary depending on the sensitivity of the doctor faced with such a situation. 36.     In the case at issue, in the prosecutor’s view all the foregoing conditions had been met: the mechanical restraint measure had been adopted on the basis of an imminent risk of violence stemming from a concrete act of physical aggression by the applicant against his parents and medical staff and not based on a – necessarily subjective – sense of risk perceived by the mental health practitioner involved. 37 .     As to the manner in which the restraint measure had been implemented, the prosecutor concluded that it could be considered “adequate”. He noted that the nursing staff had assisted the applicant and that they had correctly filled in the medical register each day, in compliance with the protocol in force. It emerged from medical documentation and the expert report that the Melzo hospital protocol for physical restraint had been correctly complied with. He noted that the protocol did not indicate a maximum duration for the application of restraint measures, but rather an obligation on medical staff to periodically re-evaluate the need for the measure and its compatibility with the circumstances of individual cases. The medical register showed that daily evaluations of the applicant had taken place, which had revealed the persistence of a serious condition that was psychotic in nature and accompanied by paranoic tendencies. That in turn had allowed medical staff to identify, during the entire period restraint was applied, a risk of a recurrence of the aggression that had warranted the initial application of the restraint measure. 3.      The applicant’s objection to discontinuance of proceedings 38 .     On 9   April 2019 the applicant lodged an objection against the prosecutor’s request to discontinue the proceedings. He complained that the reasoning for the request was overly laconic and that it consisted mostly of a transposition of the observations of the court-appointed expert, and mentioned that it had been submitted three and a half years after he had first lodged his criminal complaint. 39.     He argued that the judgment of the Court of Cassation, Fifth Criminal Section, no.   50497 of 20   June 2018 (referred to hereinafter as “the Mastrogiovanni judgment”) had not been taken into consideration by the prosecutor. According to the case-law as outlined in that judgment, the application of mechanical restraint on a precautionary basis was not an admissible practice; it could only be applied in the face of a concrete situation involving a clear and present danger of serious harm being caused to the patient, which must be evidenced by objective elements identified in an accurate and detailed manner. Against that background the applicant complained that the public prosecutor had not assessed the case against the criteria indicated by the Court of Cassation as indispensable for the configuration of the defence of necessity under Article   54 of the Criminal Code. 40.     In particular, with regard to the clear and present nature ( attualità ) of the danger, he argued that the decision to use mechanical restraint had not been made on the basis of an assessment of the actual danger of serious harm but on a prudential and prognostic basis involving a hypothetical and merely possible resumption of his state of agitation. In his view, the danger of a reiteration of his violent acts had already receded from the moment the pharmacological sedation had been administered by the anaesthetist when the restraints were applied. In support of that argument, the applicant argued that in the days following his restraint he was described by doctors as calm. It was therefore unclear where the supposed concrete elements indicating possible violent acts had been found. Therefore, in his view the decision to maintain the mechanical restraint had been based only on a future and uncertain risk of a reiteration of his aggressive behaviour and in the total absence of any imminent danger. 41.     The applicant argued that no one had verified the persistence of the purported danger after the events of 7   October 2014. The medical register merely stated that the patient was calm, if uncritical of his own behaviour.   With regard to the duration of the purported danger and the consequent prolongation of the applicant’s mechanical restraint, no investigation had been made as to the existence of a danger that could have been qualified as current and therefore as legitimising the continuation of the restraint, and the public prosecutor in turn had limited himself to qualifying the reports on the applicant’s uncritical attitude towards what had happened as adequate for the purposes of the applicable protocol. 42.     The applicant concluded that the prolongation of the mechanical restraint had lacked adequate justification.   To deem legitimate the use of restraint for almost eight consecutive days merely to cope with an isolated episode of aggression would have meant, in his view, legitimising that practice as a routine method for the treatment of psychiatric illness not only when a state of necessity actually existed, but also when there was a fear of possible future agitation. 43 .     He further argued that the mechanical restraint measure had not been applied after alternative strategies had been attempted without success, but rather had been the first and only method employed from 7   October onwards. 44 .     In conclusion the applicant requested, inter alia , that the prosecutor’s request be rejected in order to allow for the examination of his case in the light of the Court of Cassation’s case-law and, in particular, the criteria set out in the Mastrogiovanni judgment. 4.      Decision of preliminary investigations judge to discontinue proceedings 45 .     By an order of 21   July 2020, the Milan District Court preliminary investigations judge ( giudice per le indagini preliminari ) decided to discontinue the proceedings. The relevant parts of the decision read as follo ws: “There is no criminal liability in the present case on the part of the medical staff with regard to any criminal offence. Indeed, as can be seen from the expert report [ordered by the prosecutor], the doctors did not commit any errors of therapeutic practice, having complied with the guidelines and protocols applicable to the specific case. ... Although the treatment was prolonged over a significant period of time, that was made necessary by the patient’s condition, which had not stabilised [or significantly improved] in the first few days of ... [mechanical] restraint. Restraint which, it should be pointed out, had not been total, as the medical record shows; in fact, the patient’s upper limbs were left free, one at a time, and [he] was also allowed to take care of his personal hygiene and to go and smoke a cigarette without restriction. Moreover, [the patient’s] clinical condition was carefully assessed daily by the medical staff, so there was no negligence or superficiality. It must also be considered that before being admitted to the hospital in Melzo, the patient had already been the protagonist of anger episodes that led to acts of violence against his family members, behaviour that was also repeated in the psychiatric department of the hospital in Melzo and required timely intervention. ... The [doctors] therefore acted correctly, assessing the patient’s condition on a daily basis, [and] taking the decision to discharge him only on 27 October 2014 when he demonstrated awareness of his violent actions. The precariousness of [the patient’s] psychological and physical state led the doctors to report that the young patient was dangerous. This exceptional act was made necessary by the aggressiveness that he had shown both towards members of his family and health personnel. That was followed by the application of the security measure of admission to a psychiatric hospital ... In conclusion, there are no ... elements of the offence of ill-treatment, especially in the case of doctor [P.], who had had the opportunity to interact with the patient only during the violent act against him. With regard to the other offences alleged, it must be reiterated that the therapeutic choices made by the medical staff did not deviate from the guidelines and protocols applicable in the specific case, and that the patient was in a persistent state of aggression towards others, both before and during hospitalisation. In conclusion, no conduct of criminal relevance can be found in the actions of the doctors who treated [the applicant].” RELEVANT LEGAL FRAMEWORK AND PRACTICE I.         DOMESTIC LAW and practice A.    The Italian Constitution 46.     The relevant parts of Article   13 of the Italian Constitution read as follows: “Personal liberty is inviolable. No one may be detained, inspected, or searched or otherwise subjected to any restriction of personal liberty, except by a reasoned order of a judicial authority and only in such cases and in such manner as provided by law. ... Any act of physical or psychological violence against persons subjected to a restriction of personal liberty shall be punished.” B.    Criminal Law provisions 1.      Criminal Code 47 .     Article   54 of the Criminal Code (state of necessity) provides that a person cannot be punished if he or she was compelled to commit an act by necessity of saving him- or herself or others from a clear and present ( attuale ) danger of serious personal injury, a danger not voluntarily caused by him or her, nor otherwise avoidable, provided that the act is proportionate to the danger. 48.     Article   572 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. 49.     Under Article   610, a person commits the offence of criminal coercion ( violenza privata ) when, by use of violence or threats, he or she compels a person to carry out or to refrain from carrying out an action. 2.      Code of Criminal Procedure 50 .     Article   410   bis of the Code of Criminal Procedure (“the CCP”), introduced by section 1(33) of Law no.   103 of 23   June 2017, contains an exhaustive list of grounds of nullity with respect to decisions to discontinue proceedings issued by a preliminary investigations judge, covering both decisions issued de   plano and those issued following a hearing in camera. Those grounds are procedural in nature. In particular, Article   410 bis §   2 provides that a decision to discontinue proceedings issued following an hearing in camera ( ordinanza di archiviazione ) may only be challenged on the grounds of nullity provided for in Article   127 §   5 of the CCP. Those grounds exclusively concern non-compliance with the provisions relating to the holding of hearings   in camera and the participation of parties in such hearings, in order to guarantee the observance of procedural formalities and the adversarial nature of proceedings. 51 .     The relevant provisions concerning the taking over of an investigation by the public prosecutor at the Court of Appeal ( avocazione delle indagini ) have been summarised in Petrella v.   Italy , no.   24340/07, §§   14 and 15, 18   March 2021. In particular, the relevant parts of Articles   412 and 413 of the CCP read as follows: Article 412 “1. The prosecutor at the Court of Appeal shall, by reasoned order, take over preliminary investigations where the district public prosecutor does not institute criminal proceedings or does not request that the case be discontinued within the time limit set by law or as extended by the judge. ...” Article 413 “1. The person who is the subject of preliminary investigations or the injured party may ask the public prosecutor at the Court of Appeal to take over the investigation ( avocazione delle indagini ) in accordance with Article 412 § 1 of the Code of Criminal Procedure. 2.     Where the objection is declared inadmissible and the accusations are unfounded, the judge shall issue an order discontinuing the proceedings and shall return the file to the public prosecutor’s office. ...” C.    Other legislation 52 .     Article   60 of Royal Decree no.   615 of 16   August 1909 (“Regulation on asylums and mentally ill persons”, implementing Law no.   36 of 14   February 1904 “Provisions on asylums and mentally ill persons. Custody and care of the mentally ill.”) reads: “In asylums, [the use of] restraints on the ill shall be eliminated or reduced to absolutely exceptional cases and may not be used except with the written authorization of the director or physician in charge of the institution. Such authorisation must indicate the nature and duration of the ... restraints. ...” 53.     Section   11 of Law no.   180 of 13   May 1978, known as the “Basaglia law”, is held to have implicitly repealed, on grounds of incompatibility, the above provisions (Court of Cassation, Fifth Criminal Section, judgment no.   50497 of 20   June 2018, Mastrogiovanni ). The new Law introduced the fresh concepts of compulsory medical hospitalisation and treatment. Section   2 provides, amongst other things, that a request for compulsory treatment ( trattamento sanitario obbligatorio ) may only be made when there are alterations to the patient’s mental state such as to require urgent therapeutic interventions, when such interventions are not accepted by the patient and when the circumstances do not make it possible to take timely and appropriate measures outside a hospital setting. In the absence of specific legislative provisions addressing the use of mechanical restraint in a psychiatric context, the Court of Cassation’s case-law has set out limits on the use of restraint in terms of whether the conduct of the individuals applying the measure can be justified under the defence of necessity set out in Article   54 of the Criminal Code (see paragraphs 55 -60 below). 54 .     Section   41   of the Prison Administration Act (Law no.   354 of 26   July   1975) provides, in so far as detained persons are concerned, that: “... No measures of physical coercion that are not expressly provided for in the [relevant prison administration regulations] may be employed and, in any case, such measures may not be used for disciplinary purposes, but only in order to prevent harm to persons or property or to ensure the safety of the subject himself. Their use must be limited to the time strictly necessary and must be constantly monitored by medical personnel. ...” D.    Domestic case-law 1.      Judgment of the Court of Cassation, Fifth Criminal Section, no.   50497 of 20   June 2018 (the “Mastrogiovanni” judgment) 55 .     In this judgment the Court of Cassation first clarified that mechanical restraint could not be considered a