CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 septembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s22F01CEB { margin-top:0pt; margin-left:36pt; margin-bottom:0pt; text-indent:-18pt } .s2B9FE6BC { width:7.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D4532D { width:8pt; font:7pt 'Times New Roman'; display:inline-block }     Communicated on 3 September 2015   FOURTH SECTION Applications nos 2539/13 and 4705/13 Andrea CIRINO against Italy and Claudio RENNE against Italy lodged on 14 December 2012 and 21 December 2012 respectively STATEMENT OF FACTS 1.     The applicant in the first case, Mr Andrea Cirino (“the first applicant”), is an Italian national, who was born in 1978 and lives in Turin. He is represented before the Court by Mrs S. Filippi, a lawyer practising in Rome, and A. Ginesi, a lawyer practising in Turin. 2.     The applicant in the second case, Mr Claudio Renne (“the second applicant”), is an Italian national, who was born in 1975 and is currently detained in Cuneo. He is represented before the Court by Mr M. Caliendo, a lawyer practising in Asti. A.     The circumstances of the case 3.     The facts of the case, as submitted by the applicants and as they appear from the documents on file, may be summarised as follows. 1.     The events of December 2004 4.     In 2004 the applicants were detained in the Asti Correctional Facility. 5.     On 10 December 2004 the second applicant intervened in a fight that had broken out between the first applicant and a prison officer. (a)     Mr Renne’s account 6.     On 10 December 2004, as punishment for his involvement in the altercation, the second applicant was stripped of his clothes and led to a cell in the solitary confinement wing of the correctional facility. The bed in the cell had no mattress, sheets or covers, and the cell had no sink. There were no panes in the windows, which were covered with some plastic sheeting after an unspecified number of days. He was detained in such conditions for approximately twenty days. For a number of days, although it is not specified for how many, he was left completely naked. He was subsequently given some light clothing. 7.     The applicant’s food was rationed, and at certain times he was only fed bread and water. For some time he received no food at all, although it is not clear for how long. 8.     The applicant was beaten repeatedly by prison officers, often more than once per day. He was subjected to various forms of physical violence, including being repeatedly punched, kicked and slapped, at one point with his head being pinned to the ground by one of the prison officers’ boots. The beatings occurred both during the day and at night.   The applicant was beaten by four or five officers at a time. One correctional officer ripped out his hair with his hands. 9.     According to a medical certificate dated 16   December 2004 cited in the first-instance judgment, the second applicant was admitted to hospital with fractured ribs. The bill of indictment also refers to a medical certificate issued on the same day, and adds that the applicant displayed diffuse bruising. 10.     During the period he spent in solitary confinement he was not allowed to speak to anyone other than prison officers. Nor was he allowed to contact the director of the correctional facility, a doctor or nurse, or his lawyer. The only person he was allowed to see once was a social therapist ( educatrice ). He also states that he was only allowed outside the cell twice, once to shower and once for some outdoor time. 11.     The second applicant suffered severe psychological distress as a consequence of the ill-treatment suffered and was unable to sleep properly for months following the events. (b)     Mr Cirino’s account 12.     On 10 December 2004, following the fight with a prison officer, the first applicant was summoned to a meeting with the chief prison officer ( comandante di reparto della polizia penitenziaria ) . Before he reached the chief prison officer’s office he was stopped by approximately twenty prison officers, who took turns beating him and pushed him down a flight of stairs. He then met with the chief prison officer and complained about the ill-treatment he had just suffered. Following the meeting, he was stripped of his clothes and led to a cell in the solitary confinement wing as a punitive measure for his participation in the fight with the prison officer. 13.     The only item of furniture in the cell was a bed with no mattress, bed linen or covers. As to sanitary facilities, the cell had a squat toilet without running water and was not equipped with a sink. The cell window had no window panes and the only source of heating was a small, malfunctioning radiator, which provided little protection against the December weather. 14.     The applicant maintains that during the first week of his detention in solitary confinement no food was provided and he was given scarce amounts of water. His food was subsequently rationed. 15.     He was beaten on a daily basis, several times per day. He was repeatedly punched, kicked and hit in the head by prison officers, who assaulted him in groups of varying sizes. 16.     The applicant mentions that he was hospitalised and it emerges from the material in the case file that he was taken to the hospital, although the domestic decisions do not cite specific medical documentation to this effect. 17.     He was also subjected to sleep deprivation, as the beatings often took place at night and the prison officers verbally abused him in order to keep him awake. 18.     During the detention in solitary confinement the applicant did not receive visits from his lawyer or his family. 19.     He suffered from psychological consequences of the abuse, such as anxiety and panic attacks. 2.     Criminal proceedings against the prison officers 20.     On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged with ill-treatment against the first and second applicants under Article 572 of the Italian Criminal Code (“the Criminal Code”), in conjunction with Article   61   §   9 of the Criminal Code, a provision which considers as an aggravating circumstance the commission of an offence by a civil servant abusing his or her position. 21.     On the same date the applicants joined the proceedings as civil parties. (a)     Proceedings before the Asti District Court 22.     The Asti District Court’s judgment was delivered on 30 January 2012. Its findings may be summarised as follows. 23.     As to the establishment of the facts concerning the ill-treatment of the applicants, the court found that the evidence gathered during the investigation and produced at the trial showed that the events had occurred in the manner described by the victims (first-instance judgment, p. 70). The court found it to be established beyond reasonable doubt that the applicants had been subjected not just to isolated acts of harassment and abuse, but to what it defined as “real and actual torture”, which had been put into practice in a “scientific” and “systematic” manner (first-instance judgment, p. 67). 24.     More specifically, the court found it established beyond reasonable doubt that the first and second applicants had been subjected to repeated physical violence from 10 to 29 December 2004 and from 10 to 16 December 2004 respectively (first-instance judgment, p. 67). It was also established that the first applicant had been beaten once in front of the chief prison officer’s office and that the second applicant’s hair had been ripped out by C.B. 25.     Moreover, the court found it to be established beyond reasonable doubt that in 2004 and 2005 in the Asti Correctional Facility there had existed what it defined as a “generalised policy of ill-treatment” that had been systematically inflicted on prisoners considered to be problematic (first-instance judgment, p. 67). What the court defines as “exceptional” punitive measures were routinely taken to punish and intimidate problematic detainees and to deter other disorderly behaviour (first-instance judgment, p. 66). Under this policy, a detainee could be taken to a cell in the solitary confinement unit ( reparto destinato all’isolamento ) where he would be subjected to repeated harassment and abuse by prison officers. The abuse would primarily take the form of physical violence, as detainees would be beaten by groups of prison guards, often during the night (first-instance judgment, p. 67). In addition, detainees would be routinely subjected to sleep, food and water deprivation, and would also be denied access to sanitary facilities (first-instance judgment, p. 66). 26.     The court found ample evidence that the prison officers operated in a climate of impunity. This was due to the acquiescence of high-level prison administrators and the active complicity that existed among prison officers (first-instance judgment, p. 65). The court further concluded that most of the prison staff, including the prison director, the chief prison officer, as well as prison medical staff and support staff, were aware of the abuse that occurred in the solitary confinement cells ( ibid .). The court also highlighted the fact that the prison officers who did not take part in or who frowned upon the conduct described above were ostracised or labelled as “traitors” (first-instance judgment, p. 67). The latter information emerged with clarity from evidence collected by means of electronic surveillance. 27.     The court further found that several cells in the solitary confinement wing of the Asti Correctional Facility were unfit for holding detainees. Some did not have bed linen, mattresses, sanitary facilities or heating. Although the windows in some cells had no panes, while other cells had windows covered by metal plates with small perforations, the cells were nonetheless used during the winter months. Some cells were equipped with a bed and a squat toilet but no other furniture or sanitary facilities (first-instance judgment, pp. 66-67). 28.     Following the establishment of the facts, the court went on to ascribe criminal responsibility to the perpetrators. In this regard, G.S. was acquitted for lack of evidence as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted of the charge of ill-treatment under Article 572 of the Criminal Code for lack of evidence. The court nonetheless held that the conduct of the prison officers amounted to infliction of bodily harm contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings against A.D. and D.B. be discontinued ( non doversi procedere ) due to the expiry of the applicable time-limit specified in the statute of limitations. 29.     With respect to C.B. and M.S., the court held that there existed sufficient evidence to conclude that they had been responsible for most, if not all, of the acts of physical and psychological abuse as described above. The court then considered that the acts at issue could be qualified as torture pursuant to the definition provided by the United   Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went on to observe that Italy had failed to incorporate the crime of torture into national legislation, in breach of its obligations under the UN Convention. It was therefore obliged to conclude that, under Italian law, there existed no legal provision that would allow it to classify the impugned ill-treatment as acts of torture. 30.     Having reached the above-mentioned conclusions, the court proceeded to assess which offence was better suited to legally qualify C.B. and M.S.’s conduct. It took the view that the conduct of the two prison officers fell most appropriately within the scope of Article 608 of the Criminal Code, which deals with abuse of authority against arrested or detained persons. However, the statutory limitation period for the offence in question was five years. In the case at issue, the limitation period had elapsed in December 2009, as the court had found no act capable of interrupting the running of that period. It further stated that C.B. and M.S. were responsible for the infliction of bodily harm, but that, as the statute of limitations was applicable to that offence as well, such a finding did not alter the substance of the decision. 31.     The court concluded that it was proven that C.B. and M.S. had committed acts contrary to Article 608 of the Criminal Code, and that A.D. and D.B. had committed acts contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings be discontinued because the applicable time-limit specified in the statute of limitations had expired. (b)     Proceedings before the Court of Cassation 32.     On 22 February 2012 the Public Prosecutor lodged an appeal with the Court of Cassation, arguing that the Asti District Court had erred in the legal classification of the offence with respect to C.B. and M.S. The Prosecutor contended that the offence better suited to qualify the conduct in question ought to have been aggravated ill-treatment under Article 572 of the Italian Criminal Code, as initially identified in the bill of indictment, in conjunction with Article 608 of the Criminal Code. 33.     By a judgment issued on 21 May 2012, and filed with the court registry on 27 July 2012, the Court of Cassation declared the Public Prosecutor’s application inadmissible. The court expressed its agreement with the prosecutor’s thesis as a matter of principle but, as the statute of limitations was applicable to the offence of aggravated ill-treatment as well, a decision in favour of the Public Prosecutor would have been devoid of any practical effect. B.     Relevant domestic law and practice 34.     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. 35.     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. 36.     Article 608 of the Criminal Code provides that a person found guilty of abuse of authority over persons who have been arrested or detained may be may be sentenced to a term of imprisonment of up to thirty months. 37.     Article 61 of the Criminal Code contains general provisions related to aggravating circumstances. Article 61 § 9 provides that it is an aggravating circumstance when an offence is committed as the result of abuse of authority or by a public official in the performance of his or her duties. 38.     The offences under Article 39 of the Criminal Code consist essentially of indictable offences and summary offences, the former attracting more serious penalties than summary offences. 39.     Articles 157 to 161 of the Criminal Code contain general provisions regarding statutory limitation periods, as well as provisions for the beginning, suspension and interruption of such periods. The limitation period is calculated in accordance with the maximum penalty which can be incurred for the offence in question. 40.     Pursuant to Article 158 of the Criminal Code, the time-limit starts to run from the day on which the offence was committed or, in the case of attempted or continuing offences, from the date on which the offender’s activity ceased. 41.     On 5   March 2014 the Italian Senate adopted a bill providing for the introduction of the crime of torture in the Italian Criminal Code. The Chamber of Deputies approved the bill, with amendments, on 9 April 2015. The bill has returned to the Senate for reconsideration.   COMPLAINTS 42.     The applicants allege a breach of Article 3 of the Convention in its substantive aspect on account of the treatment inflicted upon them in the Asti Correctional Facility. 43.     The applicants also allege a violation of Article 3 of the Convention under its procedural aspect. They claim that the Italian State failed to adopt criminal law provisions, namely by incorporating the offence of torture into domestic legislation, which would ensure adequate punishment of those responsible for the alleged violation. This led to a situation of impunity and precluded the award of compensation to the victims. 44.     Relying on Article 13 of the Convention, the applicants further complain that there was no effective domestic remedy available to them which could have provided redress for the alleged violations of their rights under Article 3 of the Convention, given that the Italian State had failed to incorporate the offence of torture into national legislation.   QUESTIONS TO THE PARTIES 1.     Have the applicants been subjected to torture and/or inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?   2.     Having regard to the procedural protection from torture and inhuman or degrading treatment or punishment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention ( Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, and Gäfgen v. Germany [GC], no. 22978/05, § 115-130, ECHR 2010)?   3.     Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention?         INFORMATION SOUGHT   1.     The Government are requested to submit the following information, including documents to substantiate their replies:   a)      the length of time the applicants spent in solitary confinement following the events of 10 December 2004; b)      whether the applicants were transferred to another correctional facility and, if so, on what date; c)      whether disciplinary sanctions were imposed on the prison officers found responsible for the events of December 2004 and, if so, what sanctions were imposed; whether, during the course of the criminal proceedings, the prison officers were suspended from their functions and what was the evolution of their career following the final domestic decision.   2.     The Government are requested to furnish a copy of the investigation file concerning the events of December 2004 in the Asti Correctional Facility.   3.     The Government are further requested to submit the applicants’ medical records (prison and external hospital records) from 10 December 2004 to 28   February 2005.