CEDH · CASELAW;CLIN;ENG — 24 janvier 2022

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Italy - 11791/20 Judgment 24.1.2022 [Section I] Article 3 Degrading treatment Inhuman treatment Detention for two years in an ordinary prison of a person suffering from bipolar disorder, in poor conditions and without any overall therapeutic strategy to treat his condition: violation Article 5 Article 5-1-e Persons of unsound mind Continued detention in an ordinary prison of a person suffering from bipolar disorder, despite the domestic court order for his transfer to an appropriate institution, for lack of available places: violation Article 34 Hinder the exercise of the right of application 35-day delay in enforcing the Court’s interim measure requesting the placement of a bipolar patient in a specialist centre excessively long: violation Facts – The applicant, who suffers from a bipolar disorder aggravated by drug addiction, was maintained in detention in an ordinary prison, in spite of domestic court decisions ordering his transfer to a Residential Centre for the enforcement of preventive measures (REMS), issued on the basis of expert psychiatric assessments that his mental health was incompatible with detention in prison. Even a judgment by the court of appeal, ordering his release on account of the delay in placing him in an appropriate establishment, was not enforced.   Since 1 April 2015 sentences ordering placement in a care institution and detention in a forensic psychiatric hospital have been executed in the REMS. On account of the systemic problem of a lack of REMS places, many persons in the same situation as the applicant are waiting in prison for a REMS place to become available. Law – Article 3 (substantive limb): The applicant’s mental condition had been incompatible with detention in prison, and despite the clear and unequivocal instructions from the domestic courts, the applicant had remained in an ordinary prison for almost two years. The conclusions reached by the specialists and the domestic judicial authorities were not open to dispute. The applicant’s continued detention in an ordinary prison had been incompatible with Article   3. In addition, the applicant had not benefited from any overall medical provision for his illness, aimed at remedying his health problems or preventing their aggravation, against a background of poor conditions of detention. Conclusion : violation (unanimously). Article 5 § 1 (e): The applicant’s immediate placement in a REMS had been ordered for a period of one year, on the grounds that this measure was the only appropriate means of dealing with the danger which he posed to society. The placement order had never been enforced. The three conditions of the Winterwerp case-law were met in this case: – at the date on which the placement in a REMS was ordered, the fact that the applicant was of unsound mind had been established before a competent authority on the basis of objective medical expertise; – the sentence-enforcement judge had rightly held that the applicant’s mental disorder was of a kind warranting confinement, given that, although he was under a supervision order, he had seriously breached the conditions imposed by it, and a placement in REMS was thus the only solution capable of meeting the need to ensure the protection of society; – the danger to society posed by the applicant had not ceased to exist. The measure ordering detention in an REMS had been intended not only to protect society, but also to provide the applicant with the treatment necessary to alleviate, in so far as possible, his condition and thus bring about a reduction in or control over his dangerousness. It had therefore been essential for appropriate treatment to be offered to the applicant, in order to reduce the level of danger that he represented for society. However, even after the court of appeal’s judgment ordering his release, the applicant had not been transferred to a REMS. In contrast, he had continued to be detained in an ordinary prison, in poor conditions, and had not received individualised therapeutic care. From February 2019, the prison administration department had sent numerous requests for admission to various REMS, in an attempt to find a place for the applicant, but, given the lack of availability, these requests had been unsuccessful. Confronted with these refusals, the national authorities had not created new REMS places or found an alternative solution. It had been incumbent on them to guarantee an available REMS place for the applicant, or to find an adequate solution. The unavailability of places had not been a valid justification for the applicant’s continued detention in a prison environment. Conclusion : violation (unanimously). Article 34: The interim measure indicated by the Court consisted in ensuring the applicant’s transfer to a REMs or other institution capable of providing appropriate therapeutic treatment for his mental illness. The domestic authorities had transferred the applicant to a therapeutic community thirty-five days after the Court had requested the measure. A lack of places in the REMS was not a valid justification for the delay. In the absence of free REMS place, it had been incumbent on the Government to find another appropriate solution for the applicant. Although a certain delay in executing the interim measure had been acceptable in the present case, given the exceptional lockdown circumstances in Italy in March 2020, thirty-five days was nevertheless excessive. Conclusion : violation (unanimously). The Court also concluded, unanimously, that there had been: – a violation of Article 5 §   5 on account of the absence of a means of obtaining, with a sufficient degree of certainty, compensation for the breaches of Article 5 §   1; – a violation of Article 6 § 1 on account of the failure to execute the judgment ordering the applicant’s release and the decision ordering his placement in a REMS; – no violation of Article 5 § 1 (a), in that the applicant, at the time of the trial, had been capable of taking part in an intelligent manner and had thus been capable, at the time of the execution of the sentence, of understanding the purpose of social rehabilitation that it pursued and of benefiting from it. Article 41: EUR 36,400 in respect of non-pecuniary damage. (See also Assanidze v. Georgia [GC], 71503/01, 8   April 2004, Legal summary ; Torreggiani and Others v. Italy , 43517/09, 8   January 2013, Legal summary ; W.D. v. Belgium , 73548/13, 6   September 2016, Legal summary ; Rooman v. Belgium [GC], 18052/11, 31   January 2019, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes