A non accomplished Court's order to release a mentaly ill person from pretrial detention violates defendants conventional rights and obliges the government to compenste the damages.
It is inconceivable in a State governed by the rule of law that an individual should remain deprived of his liberty despite the existence of a judicial decision ordering his release.
With regard to the deprivation of liberty of persons with mental disorders, an individual can only be considered "insane" and deprived of liberty if at least the following three conditions are met: first, his insanity must have been conclusively established; second, the disorder must be of such a character or magnitude as to legitimize the internment; third, the internment cannot validly continue without the persistence of such a disorder.
The State is obliged, notwithstanding logistical and financial problems, to organise its prison system in such a way as to ensure that prisoners are treated with respect for their human dignity.
With particular reference to compensatory remedies concerning the conditions of detention, the Court has held that the burden of proof imposed on the applicant must not be excessive. Financial compensation should be available to any person who is or has been detained in inhuman or degrading conditions and has applied for it. The Court has repeatedly held that a finding that the conditions of detention do not meet the requirements of Article 3 of the Convention gives rise to a strong presumption that they have caused moral damage to the injured person. The domestic rules and practices governing the operation of the compensatory remedy must reflect the existence of this presumption rather than making compensation conditional on the applicant's ability to prove, by extrinsic evidence, the existence of non-pecuniary damage in the form of emotional distress. Therefore, making the award of compensation conditional on the applicant's ability to prove the fault of the authorities and the unlawfulness of their actions may render existing remedies ineffective. The Court has recalled, in this connection, that poor conditions of detention are not necessarily the result of failings attributable to the prison administration, but more often than not have their origin in more complex factors, for example problems of penal policy.
(automatic machine translation, French original here)
european Court of Human rights
January 24, 2022
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to formal amendments.
In the case of Sy v. Italy,
The European Court of Human Rights (First Section), sitting in a Chamber composed of :
Marko Bošnjak, President,
Lorraine Schembri Orland, judges,
and Renata Degener, Section Registrar,
Having regard to:
the application (no. 11791/20) 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 a national of that State, Mr Giacomo Seydou Sy ("the applicant") on 4 March 2020,
the decision to bring the application to the attention of the Italian Government ("the Government")
the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court ("the Rules"),
the observations of the parties,
the Court's decision of 9 March 2021 not to accept the Government's unilateral declaration,
Having deliberated in chambers on January 11, 2022,
Delivers the following judgment, adopted on this date:
1. The application concerns the applicant's continued detention in ordinary detention, despite, inter alia, the decisions of the national courts ordering his placement in a residence for the execution of security measures (residenza per l'esecuzione delle misure di sicurezza; "REMS"). The applicant complained of his continued ordinary detention, which he considered unlawful; of his conditions of detention, which he considered to be poor due to the lack of specific treatment for his mental disorder; of a lack of domestic remedies; of a failure to execute the decision of 20 May 2019 by which the Court of Appeal had ordered his release; and of a delay in executing the measure indicated by the Court under Rule 39 of its Rules of Court. Articles 3, 5 § 1, 5 § 5, 6, 13 and 34 of the Convention are at issue.
2. The applicant was born in 1994 and lives in Mazzano Romano. He was represented by Mr. A. Saccucci, G. Borgna, V. Cafaro and G. Di Rosa, lawyers in Rome.
3. The Government was represented by its agent, Mr. L. D'Ascia.
4. The applicant suffers from a personality disorder and bipolar disorder. His mental condition is aggravated by substance abuse. At the date of the filing of the application, he was detained in the Rebibbia Nuovo Complesso ("Rebibbia NC") prison in Rome.
The first criminal proceedings
5. Charged with harassment against his ex-girlfriend, resisting a public official and assault and battery, the applicant was placed under house arrest on July 15, 2017 by the judge of the preliminary investigations (giudice per le indagini preliminari; "GIP") of the Court of Rome, as a precautionary measure (misura cautelare).
6. On September 4, 2017, as the Petitioner had repeatedly wandered away from his home, the GIP replaced the measure with provisional detention and requested the prison's health directorate to draw up a report on his state of health and its compatibility with detention, in order to assess the prison system's ability to ensure that the Petitioner received the necessary care.
7. On September 18, 2017, the ILG requested a psychiatric evaluation of the individual to determine his psychological condition at the time of the offenses and his dangerousness to society.
8. On October 3, 2017, at an ad hoc adversarial hearing before the ILG for the purpose of producing evidence (incidente probatorio), expert G.M. filed his report, which concluded:
"Mr. Sy, who suffers from a personality disorder (...) (mixed antisocial and borderline personality characteristics), bipolar disorder and related disorders, cannabis use disorder, stimulant use disorder (cocaine), was, at the time of the facts (...), due to a phase of severe decompensation, in a condition of infirmity of such a nature as to exclude his responsibility.
Mr. Sy must be considered, in the psychiatric sense of the term, as socially dangerous, which requires care and therapeutic rehabilitation instead of detention.
Mr. Sy is competent to participate consciously in his trial."
9. On October 6, 2017, the PIG replaced the pre-trial detention with a provisional personal security measure of placement in a residence for the execution of security measures (residenza per l'esecuzione delle misure di sicurezza; "REMS") for one year (see paragraph 49 below), to be implemented as soon as possible. In the meantime, the applicant was to be placed in an appropriate facility.
10. On the same day, at the request of the public prosecutor's office, the GIP decided that the accused should be tried under the immediate procedure ("giudizio immediato").
11. On November 22, 2017, based on the psychiatric expertise filed on October 3, 2017, the GIP acquitted the applicant on the grounds that, due to his infirmity, he was unable to control his actions and ordered the application of the measure of detention in REMS for a period of six months. It noted that the security measure applied to the applicant on October 6, 2017 had not been executed due to a lack of places in the relevant facilities (paragraph 9 above).
12. The applicant stated that he had been released, due to a lack of space in REMS, on December 23, 2017, and then had spontaneously joined a specialized care community on January 23, 2018, to undergo personalized therapeutic treatment.
13. Referred to by the public prosecutor's office, the sentence enforcement judge ("JAP") (magistrato di sorveglianza) in Rome re-examined the applicant's situation and, by order of 14 May 2018, filed on 13 June 2018, declared that he still represented a danger to society, but replaced the detention in REMS with probation, for a period of one year, to be carried out with the specialised community. The judge based his decision in particular on the report of the psychiatrist of the public service for pathological addictions (servizio pubblico per le dipendenze patologiche; "Ser.D.") of Rome, who considered that placement in REMS was no longer the appropriate solution for the applicant.
14. The Petitioner states that the following month, while he was still subject to the probation measure, he obtained permission to temporarily leave the community. On June 29, 2018 he had another psychotic break caused by drug use and was taken to the emergency room. He claims that he was allowed to leave the same day, but due to the lack of authorization from the judge, the community refused to accept him, so he remained at large.
The second criminal procedure
15. On July 2, 2018, the petitioner was arrested in flagrante delicto for aggravated robbery and resisting a public official. On the same day, the Court of Tivoli validated the arrest and ordered his remand in Rebibbia NC.
16. Upon entering the prison, the applicant was examined by the psychiatrist at Rebibbia NC, who recommended that he be placed in solitary confinement and under a high level of supervision, as well as receiving appropriate medical treatment. The prison medical records showed that the petitioner continued to suffer from a personality disorder and bipolar disorder, and that his mental health was unstable and characterized by delusions of grandeur and persecution bordering on delirium. The psychiatrist emphasized that the petitioner had little awareness that he was ill and needed to seek treatment, and that, regarding the prescribed pharmacological therapy, he was subject to periods of alternating acceptance and refusal. Towards the end of July 2018, the psychiatrist authorized the transfer of the petitioner to a "regular" cell with other inmates, in part because the petitioner's condition had improved slightly. At the end of August 2018, he observed a high degree of anxiety in the petitioner and a refusal of pharmacological therapy.
17. On September 26, 2018, at the hearing, the court ordered the establishment of an expert opinion to assess the applicant's fitness to attend the proceedings, his mental state at the time of the alleged acts and his possible dangerousness to society.
18. In the report filed on 9 November 2018, the expert, G.M., confirmed his diagnosis of 3 October 2017 as to the applicant's pathology (paragraph 8 above). He further stated that, when the latter had committed the offences, he was in a state of infirmity such as to partially exclude his responsibility. He also confirmed his assessment of the applicant's social dangerousness. He emphasized that the need for medical care took precedence over the need for detention and considered the applicant fit to participate in the trial. As the applicant was hardly aware of his illness and was exposed to the risk of new episodes of decompensation, the expert considered necessary:
"(...) the inclusion [of the petitioner] in a mixed therapy and rehabilitation program, providing for appropriate pharmacotherapy (...), and a rehabilitation pathway including rehabilitation and resocialization activities, in the absence of which the risk of new phases of acute decompensation must be considered very high."
19. On November 22, 2018, the court, based on the expert report, found that at the time of the facts the applicant was in a state of infirmity that partially excluded his responsibility, declared him responsible for the offenses with which he was charged and sentenced him to one year and two months of imprisonment. It considered that there was no need to order a new definitive security measure of the same nature as that applied by the Rome JAP on May 15, 2018, as the overall sentence imposed was sufficient.
20. With another decision issued on the same day, the court replaced the pre-trial detention with house arrest, taking into account the applicant's therapeutic needs found by the expert (paragraph 18 above).
21. On 27 November 2018, as the applicant failed to comply with the conditions of his assignment, the court reinstated the pre-trial detention order and, on 2 December 2018, the applicant was again incarcerated in Rebibbia NC.
22. On January 29 and 31, 2019, after attempting to commit suicide, the petitioner was examined by the prison psychiatrist who certified, in a report dated January 31, 2019, that his health condition was not compatible with ordinary detention and that a transfer to a prison psychiatric ward or to a psychiatric facility outside the prison was necessary.
23. On 4 February 2019, by an order issued on the basis of article 111, paragraph 5, of Presidential Decree no. 230 of 30 June 2000 (see paragraph 53 below), the court noted the deterioration of the applicant's state of mental health and, as the public prosecutor's office had not requested the application of provisional security measures, ordered the applicant's placement without delay in a prison ward for psychiatric patients.
24. By a decision of 7 February 2019, the Department of Penitentiary Administration (dipartimento dell'amministrazione penitenziaria; "the DAP") ordered the transfer of the applicant to the mental health ward of the Rebibbia NC prison. On February 21, 2019, this decision was notified to the court. The Petitioner maintains that this transfer never took place.
25. By judgment no. 6998 of 20 May 2019, filed on 10 June 2019, the Court of Appeal of Rome, before which the Petitioner was seized, reduced the sentence to eleven months' imprisonment, revoked the pre-trial detention measure and ordered the Petitioner's release.
26. The applicant remained in custody in Rebibbia NC.
Proceedings before the enforcement judge in Rome and application of Rule 39 of the Rules of Court
27. In the meantime, by an order of 21 January 2019, filed the following day, the Rome JAP had found that the applicant, although subject to a measure of probation with a therapeutic community granted in the first criminal proceedings (see paragraph 13 above), had been placed, on 2 July 2018, in pre-trial detention (see paragraph 15 above) and then failed to comply with the conditions of the house arrest ordered by the Tivoli court (see paragraphs 19 and 21 above). Consequently, it replaced the measure of probation with the immediate application of detention in REMS for a period of one year, considering that this measure was the only adequate one in view of the applicant's social dangerousness.
28. From February 5, 2019, the DAP asked several REMS located in the Lazio region to accommodate the applicant. However, the said structures answered in the negative due to lack of space.
29. On September 2, 2019, the JAP of Rome then asked the DAP to check the availability within the REMS located outside the region, stressing the urgency of executing the security measure and the medical care of the applicant still detained in Rebibbia NC. None of the REMS requested by the DAP were able to receive the applicant, due to a lack of space, both inside and outside the region.
30. On November 18, 2019, the applicant requested from the JAP of Rome the reassessment of his social dangerousness and the possibility of following a therapeutic course in a structure more suitable for his health condition.
31. In order to rule on the applicant's request, the judge asked the medical service of the Rebibbia NC prison and the mental health center of the local health service to provide him with updated reports on the applicant's state of health and on the possible therapeutic solutions. The report from the Rebibbia NC psychiatric department, dated December 29, 2019, attested that the petitioner was in good physical health and was constantly monitored by the prison's medical specialists. The report from the mental health center, dated February 26, 2020, emphasized the need for a residential type of therapeutic pathway and community integration in lieu of a REMS.
32. On March 2, 2020, finding the evidence emerging from the two aforementioned reports insufficient and contradictory, the JAP appointed an expert psychiatrist for a new examination of the petitioner.
33. 33. On 3 March 2020 the applicant asked the Court, under Rule 39 of the Rules of Court, to indicate to the Government measures capable of putting an end to his detention in prison. On 26 March 2020 the Government produced a report from the Rebibbia NC psychiatric department, dated the same day, which attested that the applicant was being regularly monitored by specialists and that he had achieved a certain degree of mental equilibrium.
34. On 7 April 2020 the Court instructed the Government, under Rule 39, to ensure the applicant's transfer to a REMS or other facility capable of providing adequate therapeutic care for the applicant's mental pathology.
35. On April 10, 2020, at the request of the DAP, the Rebibbia NC Psychiatric Department prepared a report on the care provided to Petitioner in prison. This report attested that the petitioner, as of October 2019, because he willingly lent himself to the care administered, had achieved a certain mental balance. The report also stated that the therapeutic and rehabilitation project drawn up for the applicant included regular visits by the attending psychiatrist to follow up on the pharmacological therapy, meetings with the psychologist of the department for pathological dependencies and participation in sports activities. In the report, it was stated that on October 28, 2019 and February 26, 2020 the referents of the local health services had met to establish a therapeutic project and to identify a reception structure outside the prison.
36. On 15 April 2020, the applicant's representative informed the Court that his client was being held in prison and that the letter he had sent to the Italian authorities requesting a transfer to a therapeutic community available to receive him (Santa Maria del Centro Italiano di Solidarietà - CeIS) had not been answered.
37. 37. On 27 April 2020, the Government informed the Court that it had informed the Rome JAP of the provisional measure indicated by the Court, specifying that the power to modify the REMS placement measure by applying another, less severe, security measure fell within the exclusive competence of the judicial authority. As for the transfer, he said that, despite repeated requests, no REMS space had yet become available.
38. 38. On 30 April 2020, in response to the Government's observations, the applicant asserted that the transfer could take place since he had already found a suitable facility ready to receive him. In his view, because of the delay in the execution of the measure, the State had failed in its obligation under article 34 of the Convention.
39. On May 4, 2020, the Rome JAP received the requested psychiatric expertise (see paragraph 32 above). The expert opinion stated that the applicant was a danger to society, albeit to a lesser extent because he was more aware of his illness. The expert confirmed the need for the applicant to undergo a residential therapeutic rehabilitation program and indicated that placement in a specialized community, such as the Santa Maria del Centro Italiano di Solidarietà - CeIS community, which had indicated availability from April 30, 2020, seemed the most appropriate solution.
The conclusions of the expertise read as follows:
" 1. On the date of the assessment, the mental state of Mr. Sy, who suffers from bipolar I disorder and borderline and anti-social personality disorder, combined with the abuse of psychotropic substances, appeared to be compensated, without delusions or hallucinations, (...), by adequate behavior and by good adaptation to the context. The perception of the illness was sufficiently present, including the need for treatment. Mr. Sy's dangerousness from a psychiatric point of view is attenuated compared to the level noted during the previous expert assessments, with a prevalence of the need for care and therapeutic rehabilitation over the need for detention.
2. It is necessary for the applicant to continue care in a psychiatric residential context that allows for continuous monitoring of his mental state, regular administration of pharmacological treatments, non-use of drugs, and individualized rehabilitation and reintegration programs, in the absence of which the risk of new phases of decompensation must be considered very high.
3. The most appropriate residential structure for the specialized treatment of Mr. Sy and the limitation of the current degree of social dangerousness is a dual diagnosis community identified in agreement with the local services (...). Such a structure proves to be the most suitable for the requirements of care and also for the protection of society (...). The dual diagnosis community Santa Maria del CeIS has said it is available to receive Mr. Sy, who has repeatedly expressed his agreement and his intention to begin a course of treatment there (...)".
40. On 8 May 2020, the Government informed the Court of the availability of a place in the Santa Maria del Centro Italiano di Solidarietà - CeIS therapeutic community and that the steps to transfer the applicant there had been taken. On May 4, 2020, the JAP had authorized the transfer of the applicant.
41. On 11 May 2020, the Rome JAP declared that the applicant's dangerousness had diminished, revoked the order of detention in REMS and replaced it with the security measure of probation in the said community, where the applicant would have had to undergo individualized therapeutic treatment.
42. On May 12, 2020, the petitioner was transferred to the community. He fled the next day.
43. On 5 June 2020 the Carabinieri reported to the judicial authorities that the applicant was untraceable (irreperibile).
44. On June 8, 2020, the JAP of Rome declared that the applicant's dangerousness had worsened and again pronounced the application of the security measure of detention in REMS for at least one year.
45. On June 11, 2020, the public prosecutor's office ordered the police to arrest the applicant and take him to the REMS indicated by the DAP.
46. On 1 July 2020, the REMS "Castore" in Subiaco (Rome) informed the authorities that a place for the applicant was available from 6 July 2020. The applicant was transferred there on 27 July 2020.
THE RELEVANT DOMESTIC LEGAL FRAMEWORK AND PRACTICE
relevant domestic law
47. Security measures are regulated by Articles 199 to 240 of the Criminal Code. According to Article 202 § 1, these measures "may be applied only to socially dangerous persons who have committed an act made a criminal offence by law". The perpetrator of such an act is considered to be socially dangerous "if it is likely that he will commit new acts criminalized by the law" (Article 203 § 1).
48. Security measures (imposed by the criminal court in its judgment on the merits, or in a decision following it, in the event of conviction, during the execution of the sentence or when the convicted person voluntarily evades the execution of the sentence - Article 205) can only be revoked if the person to whom they are addressed has ceased to be socially dangerous (Article 207 § 1). After the minimum period set by law for each measure has elapsed, the judge must re-examine the person subject to it to determine whether he or she is still socially dangerous. If so, he must set a date for the next review. The judge may, however, advance this date if there is reason to believe that the danger has ceased (section 208).
49. Security measures are either personal or property-related. Among the former are confinement in a care and detention facility (casa di cura e di custodia), for persons sentenced to a reduced sentence on account of mental illness or chronic intoxication by alcohol or drugs (Article 219), as well as confinement in a forensic psychiatric hospital (ospedale psichiatrico giudiziario) for persons acquitted on the same grounds (Article 222) and probation (Article 228).
50. With regard to internment, since April 1, 2015, measures of internment in care and detention facilities and in judicial psychiatric hospitals are carried out in REMS, in accordance with Decree-Laws No. 211 of December 22, 2011 and No. 52 of March 31, 2014. The judge shall order the application of the internment measure when there is evidence that no other measure would be suitable to ensure adequate care for the person concerned and to deal with his dangerousness. On May 11, 2020, the Tivoli Preliminary Investigation Judge raised a question of constitutional legitimacy before the Constitutional Court regarding, among other things, the norms establishing REMS and the lack of competence of the Ministry of Justice in this matter. By Order No. 131 of June 24, 2021, the Constitutional Court opened an investigation in order to acquire information regarding the operation of REMS.
51. In the case of probation, the person subject to this measure is "entrusted to the public security authority" for a minimum period of one year; the judge imposes such obligations as he deems appropriate to prevent the commission of new offenses. Supervision must be exercised in such a way as to promote, through work, the rehabilitation of the person concerned to social life (article 228). If, during the period of supervision, the mentally ill person again proves to be dangerous, this measure is replaced by internment in a care and detention institution (Article 231).
52. Security measures in conjunction with a custodial sentence are applied after the sentence has been served or extinguished (Article 211). The order for hospitalization in a care and detention facility is enforced once the sentence of restriction of personal freedom has been served or extinguished. Nevertheless, the judge, taking into account the particular state of the convicted person's mental illness, may order his or her hospitalization before the execution of the sentence restricting personal freedom has begun or ended (article 220).
53. Paragraph 5 of Article 111 of Presidential Decree No. 230 of June 30, 2000, provides that accused or convicted persons, when during their stay in prison, a mental illness appears that does not require the provisional application of the security measure or placement in a judicial psychiatric hospital or in an institution for care and detention, shall be assigned to an institute or special section for the mentally ill.
Other relevant legal provisions
54. The validity of a judgment of conviction may be challenged by raising an incident of execution, as provided for in Article 670 § 1 of the Code of Criminal Procedure, which provides in relevant parts:
"When it is established that the act is not valid or has not become enforceable, [after having] also evaluated on the merits [nel merito] the compliance with the guarantees provided for the case where the convicted person cannot be found, (...) the enforcement judge shall suspend the enforcement and order, if necessary, the release of the person concerned and the renewal of the irregular notification. In this case, the time limit for appeal shall start running again.
55. Article 2043 of the Civil Code reads as follows:
"Any unlawful act that causes damage to another person obliges the person who committed it to repair it."
National reports on the prison situation
56. The report of the association Antigone "for rights and guarantees in the penal system" (Antigone, associazione "per i diritti e le garanzie nel sistema penale") on the visit to the Rebibbia NC prison of April 16, 2019, describes a situation of overcrowding (with 400 more inmates than the regulatory capacity). Other problematic elements that emerge from the report are the precarious conditions of the premises and the lack of a specialized service for inmates with psychological pathologies.
57. The report of the Garante delle persone sottoposte a misure restrittive della libertà personale della regione Lazio (Guardian of detained persons in the Lazio region) on the activity and results of the regional bodies, relating to the year 2018, mentions, among other things, the poor structural conditions in almost all prisons, difficulties in the management of psychiatric pathologies, as well as the continued detention in ordinary detention of persons subject to REMS placement measures.
58. The problem of overcrowding and poor structural conditions also emerges from the report to Parliament for 2019 of the National Guarantor of the Rights of Detained Persons (Garante Nazionale dei diritti delle persone detenute o private della libertà personale).
ON THE RECEIVABILITY
Non-exhaustion of domestic remedies
59. The Government argued that domestic remedies had not been exhausted on the ground that the applicant had failed to challenge, before the enforcement judge, on the basis of Articles 670 and 666 of the Code of Criminal Procedure, the lawfulness of his continued detention notwithstanding the Court of Appeal's decision of 20 May 2019 ordering his release.
60. The applicant submitted that the enforcement incident only allowed questions to be raised relating to the existence, scope or legitimacy, in terms of substance and form, of the enforcement order on the basis of which the convicted person was being held. In the present case, the Government had not specified either the writ of execution to be challenged or the grounds for its invalidity or non-existence, according to the applicant, because there was no writ of execution to justify his detention in prison. Moreover, the Government had not shown that the use of this remedy would have made it possible to remedy the alleged violations.
61. The Court has already held, under various articles of the Convention, that once an applicant has obtained a judicial decision against the State, he need not subsequently institute proceedings to enforce it.
62. In particular, from the standpoint of Article 5 of the Convention, the Court has observed that it is inconceivable in a State governed by the rule of law that an individual should remain deprived of his liberty despite the existence of a judicial decision ordering his release (Assanidze v. Georgia [GC], no. 71503/01, § 173, ECHR 2004-II). Indeed, it is for the Contracting States to organise their judicial systems in such a way that their law-enforcement agencies can meet the obligation to avoid unjustified deprivation of liberty (Ruslan Yakovenko v. Ukraine, no. 5425/11, § 68, ECHR 2015).
63. As to the right of access to a court guaranteed by Article 6 § 1 of the Convention, the Court said that it would be illusory if the domestic legal order of a Contracting State allowed a final and binding judicial decision to remain inoperative to the detriment of a party. The enforcement of a judgment, by whatever court, must be regarded as an integral part of the "trial" within the meaning of Article 6 (see Metaxas v. Greece, no. 8415/02, § 25, 27 May 2004, and Assanidzé, cited above, §§ 181 and 182). The Court has also emphasised that a person who has obtained a judgment against the State does not normally have to institute separate proceedings to enforce it (see Metaxas, cited above, § 19). The primary responsibility for ensuring the enforcement of a judgment against the State lies with the State authorities from the date on which the judgment becomes binding and enforceable (Burdov v. Russia (no. 2), no. 33509/04, § 69, in fine, ECHR 2009).
64. In the present case, the Court observes that on 20 May 2019 the Rome Court of Appeal revoked the applicant's pre-trial detention and ordered his release, although he remained in detention. The authorities also failed to ensure his transfer to a REMS, contrary to the order of 21 January 2019 issued by the Rome enforcement judge (paragraphs 25 and 27 above). The Court considers that the principle established in Metaxas, supra, also applies to judgments concerning the regime of deprivation of liberty. It is the responsibility of the State to enforce court decisions without the person concerned having to initiate subsequent proceedings to obtain their enforcement. It follows that in the present case, given the existence of two court decisions ordering, respectively, placement in REMS and termination of pre-trial detention, the applicant was not obliged to bring an "enforcement incident" to argue that his continued detention in prison was unlawful (see, mutatis mutandis, Metaxas, cited above, § 19).
65. 65. Accordingly, the plea of non-exhaustion of domestic remedies must be rejected.
Failure to comply with the six-month time-limit
66. The Government argued that the application was late on the ground that it had been lodged on 3 March 2020, i.e. much more than six months after the decision of the Rome Court of Appeal of 20 May 2019 by which the applicant's release had been ordered (see paragraph 25 above).
67. The applicant sees the violations he alleges as a continuing situation, since on the date the application was lodged he was detained in Rebibbia NC.
68. The Court reiterates that, where the alleged violation constitutes a continuing situation against which there is no remedy under domestic law, it is only when the situation ceases that a six-month time-limit actually begins to run (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 86, ECHR 2014 (extracts), and Seleznev v. Russia, no. 15591/03, § 34, 26 June 2008). In particular, where an applicant is detained, the detention must be regarded as a "continuous situation" as long as he or she is restricted in the same type of detention center in substantially similar conditions. Short periods of absence, for example, if the person has been removed from the facility for questioning or other procedural acts, do not affect the continuous nature of the detention. On the other hand, the release of the person concerned or a change in the detention regime, whether within or outside the institution in question, is likely to put an end to the "continuing situation". A complaint about the conditions of detention must therefore be lodged within six months of the cessation of the situation complained of or, if there was an effective domestic remedy to be exercised, of the final decision in the process of exhaustion of domestic remedies (Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 75-78, 10 January 2012, Shishanov v. the Republic of Moldova, no. 11353/06, § 65, 15 September 2015, and Petrescu v. Portugal, no. 23190/17, § 92, 3 December 2019).
69. Examining the applicant's situation in the light of the above principles, the Court notes that he was detained at Rebibbia NC on two occasions, from 2 July 2018 to 22 November 2018 and then from 2 December 2018 to 12 May 2020 (see paragraphs 15, 20, 21 and 42 above). Given that in the intervening period the applicant was placed under house arrest, his detention cannot be regarded as a "continuous situation" in its entirety (Grishin v. Russia, no. 30983/02, § 83, 15 November 2007, and Dvoynykh v. Ukraine, no. 72277/01, § 46, 12 October 2006). However, the detention was continuous during the two periods indicated.
70 It follows that the Government's objection must be upheld only in respect of the first period of detention.
71. The Court considers that, in so far as they relate to the second period of detention at Rebibbia NC, the complaints are not out of time, given that at the time the application was lodged the applicant was still being held there (Strazimiri v. Albania, no. 34602/16, § 94, 21 January 2020). It will therefore limit the scope of its examination to the second period of detention.
72. In view of the foregoing, the Court considers that, as regards the latter period, the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Noting further that the application does not raise any other ground of inadmissibility, it declares it admissible in respect of the period of detention from 2 December 2018 to 12 May 2020.
ON THE GROUND
On the violation of article 3
73. The applicant contends that his continued detention in ordinary prison, despite the contrary opinion of the treating psychiatrists, prevented him from receiving adequate therapeutic care for his mental health condition, which allegedly aggravated it and thus constituted inhuman and degrading treatment prohibited by article 3 of the Convention, which reads:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Submissions of the parties
74. 74. The applicant submits that the medical care provided to him at Rebibbia NC was inadequate, in the absence of a therapeutic strategy to treat his pathology or to prevent its aggravation. He argues that all the psychiatrists who examined him attested that his health condition was incompatible with prison detention and that treatment in a health facility was necessary, but that he was never transferred to a REMS or any other suitable health facility due to a chronic lack of places. He further alleges that he was placed in an ordinary prison environment and, referring to reports drawn up by the Antigone association and by the National and Lazio Region Guarantor of the Rights of Detained Persons, that his conditions of detention were poor (paragraphs 56 and 57 above).
75. Referring to the medical reports from the Rebibbia NC psychiatric ward, dated 26 March and 10 April 2020 (see paragraphs 33 and 35 above), the Government submitted that the applicant had been subject to constant medical monitoring and an individualised therapeutic project involving regular visits by psychologists and psychiatrists, the prescription of medication and group activities. According to him, there was therefore no violation of Article 3.
The Court's assessment
a) Applicable principles
76. The Court recalls that Article 3 of the Convention enshrines one of the most fundamental values of democratic societies. It prohibits in absolute terms torture and inhuman or degrading treatment or punishment, regardless of the circumstances and the victim's conduct. To fall under this provision, a treatment must reach a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, and in particular the duration of the treatment, its physical or psychological consequences and, sometimes, the sex, age and state of health of the victim (Rooman v. Belgium [GC], no. 18052/11, § 141, 31 January 2019, and the cases cited therein).
77. This provision requires the State to ensure that any prisoner is detained in conditions compatible with respect for human dignity, that the manner in which the measure is carried out does not subject the person concerned to distress or hardship of an intensity that exceeds the unavoidable level of suffering inherent in detention and that, having regard to the practical requirements of imprisonment, the prisoner's health and well-being are adequately ensured, in particular by the provision of the requisite medical care (Stanev v. Bulgaria [GC], no. 36760/06, § 204, ECHR 2012, and Rooman, cited above, § 143).
78. The Court has repeatedly held that the detention of a sick person may raise problems under Article 3 of the Convention (see Matencio v. France, no. 58749/00, § 76, 15 January 2004, and Mouisel v. France, no. 67263/01, § 38, ECHR 2002-IX) and that such detention in inadequate material and medical conditions may constitute treatment contrary to Article 3 (Sławomir Musiał v. Poland, no. 28300/06, § 87, 20 January 2009, and Rooman, cited above, § 144).
79. In determining whether the detention of a sick person complies with Article 3 of the Convention, the Court takes into consideration the health of the person concerned and the effect of the manner in which the detention is carried out on his or her development. It said that the conditions of detention must not subject the person deprived of liberty to feelings of fear, anguish and inferiority likely to humiliate, debase and possibly break his physical and moral resistance. In this respect, it recognized that mentally ill prisoners are more vulnerable than ordinary prisoners, and that certain demands of prison life expose them to greater danger to their health, increase the risk of their feeling inferior, and are bound to cause stress and anxiety. Such a situation entails the need for increased vigilance in monitoring compliance with the Convention (W.D. v. Belgium, no. 73548/13, §§ 114 and 115, 6 September 2016, and Rooman, cited above, § 145). The assessment of the situation of the individuals concerned must take account of their vulnerability and, in some cases, their inability to complain coherently, or even to complain at all, about their treatment and its effects on them (Murray v. the Netherlands [GC], 2016, § 106, Herczegfalvy v. Austria, 24 September 1992, § 82, Series A no. 244, and Aerts v. Belgium, 30 July 1998, § 66, Reports of Judgments and Decisions 1998-V).
80. The Court also takes into account the adequacy or otherwise of the medical care and treatment provided in detention. This question is the most difficult to decide. The Court recalls that the mere fact that a detainee has been examined by a doctor and prescribed a particular treatment does not automatically lead to a conclusion as to the appropriateness of the care provided. Furthermore, the authorities must ensure that information about the detainee's state of health and the care he or she has received in detention is recorded exhaustively, that the detainee is promptly given an accurate diagnosis and appropriate treatment, and that he or she is subject to regular and systematic monitoring, when the illness requires it, combined with a comprehensive treatment strategy aimed at curing or preventing the worsening of his or her health problems, rather than treating the symptoms. Moreover, the onus is on the authorities to show that they have created the necessary conditions for the prescribed treatment to be effectively followed (see Blokhin v. Russia [GC], no. 47152/06, § 137, 23 March 2016, and Rooman, cited above, § 147). The Court has concluded that the absence of a comprehensive therapeutic strategy for the care of a mentally ill prisoner can be analysed as "therapeutic abandonment" contrary to Article 3 (Strazimiri, cited above, §§ 108-112).
81. If treatment is not possible in the place of detention, the prisoner must be able to be hospitalised or transferred to a specialised service (see Rooman, cited above, § 148).
b) Application of the above principles in the present case
82. The Court notes that no one disputes the existence of the applicant's health problems, in particular his personality disorder and bipolar disorder, which are aggravated by the use of psychoactive substances. The applicant suffers from recurrent psychotic attacks and attempted suicide while in detention in January 2019 (paragraphs 8 and 22 above).
83. The Court notes that the applicant complains about the lack of adequate medical care and his conditions of detention while in Rebibbia NC. Having regard to its findings on admissibility (paragraph 69 above), it will consider the period of detention from 2 December 2018 to 12 May 2020.
84. The Court observes that the Government do not dispute that the applicant was not transferred to a psychiatric prison ward, despite the order issued by the Tivoli Court on 4 February 2019 and the transfer decision issued by the DAP on 7 February 2019 (see paragraphs 23 and 24 above).
85. The Court must therefore consider whether the applicant's medical condition was compatible with his detention in prison, particularly in a regular environment, and examine whether the medical care provided to him was sufficient and appropriate.
86. It notes, firstly, that already during the detention in Regina Coeli, the GIP of the Rome court, on the basis of the conclusions of the psychiatric expertise which attested to the need for comprehensive therapeutic treatment of the applicant's serious pathology, had replaced the pre-trial detention with placement in REMS (see paragraph 9 above).
87. As regards the detention in Rebibbia NC, the Court notes that in November 2018 the expert appointed by the Tivoli Court said that comprehensive therapeutic management of the applicant was necessary and should take precedence over the detention requirement (paragraph 18 above). Subsequently, on January 21, 2019, the Rome JAP ordered the applicant's immediate transfer to REMS (paragraph 27 above). A few days later, the prison psychiatrist certified that the applicant was unfit for ordinary detention (paragraph 22 above). On 4 February 2019, the Tivoli Court ordered his immediate placement in an appropriate facility or in a prison ward for psychiatric patients (paragraph 23 above). Accordingly, the Court notes - and the Government do not dispute this - that the applicant's state of mental health was incompatible with detention in ordinary prisons and that, despite clear and unambiguous indications, he remained incarcerated in ordinary prisons for almost two years. It cannot question the conclusions reached by the domestic specialists and judicial authorities in this case and considers that the applicant's continued detention in ordinary prison was incompatible with Article 3 of the Convention (see, mutatis mutandis, Contrada v. Italy (no. 2), no. 7509/08, § 85, 11 February 2014).
88. Moreover, it is apparent from the documents placed on file by the parties that the applicant did not benefit from any comprehensive therapeutic strategy for the management of his pathology aimed at curing his health problems or preventing their aggravation (see Blokhin, cited above, § 137, Rooman, cited above, § 147, and Strazimiri, cited above, § 108), and this in a context characterised by poor conditions of detention (see Sławomir Musiał, cited above, § 95).
89. Accordingly, there has been a violation of Article 3 of the Convention.
On the alleged violation of Article 5 § 1
90. The applicant alleged that his detention was unlawful and invoked Article 5 § 1 of the Convention, which reads:
"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty except in the following cases and in accordance with the law
(a) if he is lawfully detained after conviction by a competent court ;
c) if he has been arrested and detained with a view to being brought before the competent judicial authority, where there are reasonable grounds for suspecting that he has committed an offence or where there are reasonable grounds for believing that it is necessary to prevent him from committing an offence or from absconding after having done so;
(e) in the case of the lawful detention of a person who is likely to spread a contagious disease, a lunatic, an alcoholic, a drug addict or a vagrant;
Submissions of the parties
(a) The applicant
91. The applicant argues at the outset that from 20 May 2019, the date on which the Rome Court of Appeal ordered his release (see paragraph 25 above), until 12 May 2020, the date of his transfer to a therapeutic community (see paragraph 42 above), his deprivation of liberty lacked a legal basis. In his view, the order of 21 January 2019 by which the Rome JAP pronounced his placement in a REMS, could not justify his detention in prison until a place became available (paragraph 27 above). Even assuming that the placement in REMS had been the basis for his detention from 20 May 2020, it would in any event have ended on 22 January 2020, after one year. The petitioner then asserts that, from the outset, his detention in Rebibbia NC was irregular because it took place in a prison environment in conditions that were inadequate for a person suffering from a mental disorder and without him receiving appropriate and individualized medical treatment. The Tivoli Court reportedly recognized, moreover, on February 4, 2019, the incompatibility of his health conditions with ordinary detention and ordered his placement without delay in a prison ward for psychiatric patients (paragraph 23 above).
(b) The Government
92. The Government alleged that the authorities had done everything in their power to transfer the applicant to a REMS, but that the placement had not been possible for lack of space. He stressed that the courts before which the applicant had been held had found that he was dangerous and that for that reason he simply could not be released. In this respect, he observed that the security measure of placement in REMS was in any case a measure involving deprivation of liberty, which was carried out in a care facility.
The Court's assessment
a) Applicable principles
93. The Court recalls that Article 5 of the Convention guarantees a right of great importance in a "democratic society" within the meaning of the Convention, namely the fundamental right to liberty and security. Together with Articles 2, 3 and 4, Article 5 of the Convention is one of the most important provisions guaranteeing fundamental rights that protect the physical safety of individuals, and as such it is of primary importance. Its essential purpose is to protect the individual against arbitrary or unjustified deprivation of liberty (Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 311, 22 December 2020, and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 123, 1 June 2021).
94. Every individual is entitled to the protection of this right, that is to say, not to be or remain deprived of his or her liberty, except in accordance with the requirements of Article 5, paragraph 1, of the Convention. Three main principles in particular emerge from the Court's jurisprudence: The rule that the exceptions, which are exhaustively listed, call for a narrow interpretation and do not lend themselves to the important range of justifications provided by other provisions (Articles 8 to 11 of the Convention in particular); the regularity of the deprivation of liberty, on which emphasis is repeatedly placed from both the procedural and substantive points of view, and which implies a scrupulous adherence to the rule of law; and the importance of the promptness or celerity of the requisite judicial reviews (ibid., § 312).
95. Article 5 § 1 (a) to (f) contain an exhaustive list of grounds on which a person may be deprived of his liberty; Such a measure is not lawful if it does not fall within one of those grounds (see Denis and Irvine, cited above, § 124), or if it is not provided for by a derogation made in accordance with Article 15 of the Convention, which allows a Contracting State, "in time of war or other public emergency threatening the life of the nation", to take measures derogating from its obligations under Article 5 "to the extent strictly required by the exigencies of the situation" (Nada v. Switzerland [GC], no. 10593/08, § 224, ECHR 2012).
96. The fact that one ground is applicable does not necessarily prevent another from being applicable; a detention may, depending on the circumstances, be justified under more than one paragraph (Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, § 126, 4 December 2018).
97. Moreover, only a narrow interpretation is consistent with the purpose of this provision: to ensure that no one is arbitrarily deprived of his or her liberty (ibid., § 126, and Khlaifia and Others v. Italy [GC], no. 16483/12, § 88, 15 December 2016).
98. Any deprivation of liberty must not only fall within one of the exceptions set out in sub-paragraphs (a) to (f) of Article 5 § 1 but also be "lawful". As regards the "regularity" of a detention, including compliance with "legal channels", the Convention refers essentially to national legislation and enshrines the obligation to comply with its substantive and procedural standards (Denis and Irvine, cited above, § 125).
99. By requiring that any deprivation of liberty be effected "through legal channels", Article 5 § 1 requires in the first place that any arrest or detention have a legal basis in domestic law. However, these words do not merely refer to domestic law. They also concern the quality of the law; they require it to be compatible with the rule of law, a concept inherent in all the articles of the Convention. On this last point, the Court emphasizes that in matters of deprivation of liberty, it is particularly important to satisfy the general principle of legal certainty. Therefore, it is essential that domestic law clearly defines the conditions under which a person may be deprived of liberty and that the law itself is foreseeable in its application, so as to meet the "legality" criterion laid down by the Convention, according to which a law must be sufficiently precise to enable an individual - if necessary with the assistance of expert advice - to foresee, to a degree that is reasonable in the circumstances of the case, the consequences likely to flow from a particular act (see Khlaifia and Others, cited above, §§ 91-92, Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013, and Denis and Irvine, cited above, § 128).
100. It is clear from the Court's case-law that "conviction" within the meaning of Article 5 § 1 (a) must be understood, having regard to the French text, to mean both a conviction following the legal establishment of an offence and the imposition of a sentence or other measure involving deprivation of liberty (see Del Río Prada, cited above, § 123, and RuslanYakovenko, cited above, § 49).
101. Moreover, the word "after" in subparagraph (a) does not imply a simple chronological order of succession between "conviction" and "detention": the latter must also result from the former, occurring "as a result of and pursuant to" the former. In short, there must be a sufficient causal link between them. However, the link between the original conviction and the extension of the deprivation of liberty gradually weakens with the passage of time. The causal link required by paragraph (a) could eventually be broken if a decision not to release or re-incarcerate a person were to be based on grounds that were inconsistent with, or unreasonable in light of, the objectives of the trial court's original decision. In such a case, the original lawful imprisonment would become an arbitrary deprivation of liberty and therefore incompatible with Article 5 (see Del Río Prada, cited above, § 124, and the cases cited therein).
102. An accused person is considered to be detained "after conviction by a competent court" within the meaning of Article 5 § 1 (a) once the judgment convicting him or her has been handed down at first instance, even if it is not yet enforceable and remains subject to appeal. The Court has said in this connection that the expression "after conviction" cannot be interpreted as being limited to the case of a final conviction, as this would exclude the arrest at the hearing of convicted persons who have appeared free, irrespective of the remedies still available to them (Wemhoff v. Germany, 27 June 1968, p. 23, § 9, Series A no. 7). Moreover, a person convicted at first instance and imprisoned pending the outcome of the appeal proceedings cannot be regarded as being detained with a view to being brought before the competent judicial authority on the basis of plausible grounds for suspecting him or her of having committed an offence within the meaning of Article 5 § 1 (c) (see Solmaz v. Turkey, no. 27561/02, § 25, 16 January 2007, and Ruslan Yakovenko, cited above, § 46).
103. As regards the justification for detention under Article 5 § 1 (e), the Court reiterates that the term "insane" must be understood in its own right. It does not lend itself to a precise definition, its meaning constantly evolving with the progress of psychiatric research (see Denis and Irvine, cited above, § 134).
104. With regard to the deprivation of liberty of persons with mental disorders, an individual can only be considered "insane" and deprived of liberty if at least the following three conditions are met: first, his insanity must have been conclusively established; second, the disorder must be of such a character or magnitude as to legitimize the internment; third, the internment cannot validly continue without the persistence of such a disorder (see, among many others, Ilnseher, supra, § 127, Rooman, supra, § 192, and Denis and Irvine, supra, § 135).
105. The national authorities must be allowed a certain amount of discretion in deciding whether an individual should be detained on the ground that he or she is "insane", since it is primarily for them to assess the evidence adduced before them in a given case; the Court's task is to review their decisions from the point of view of the Convention (see Denis and Irvine, cited above, § 136).
106. As regards the first condition for depriving a person of liberty on the ground that he or she is "insane", namely that the existence of a real mental disorder must be demonstrated before the competent authority by means of objective medical evidence, the Court reiterates that, although the national authorities have a certain discretionary power, in particular when deciding on the merits of clinical diagnoses, the permissible grounds for deprivation of liberty listed in Article 5 § 1 must be interpreted narrowly. A mental condition must be of a certain gravity to be considered a "real" mental disorder for the purposes of Article 5 § 1 (e), as it must be so serious as to require treatment in an institution intended for the mentally ill (see Ilnseher, cited above, § 129, and Denis and Irvine, cited above, § 136).
107. No deprivation of liberty of a person considered to be insane can be deemed to be in conformity with Article 5 § 1 (e) of the Convention if it has been decided without seeking the opinion of a medical expert. Any other approach is tantamount to a breach of the requirement of protection against arbitrariness (Kadusic v. Switzerland, no. 43977/13, § 43, 9 January 2018, and the cases cited therein). In this respect, the form and procedure chosen may depend on the circumstances. It is acceptable, in urgent cases or where a person is arrested for violent behavior, that such notice be obtained immediately after the arrest. In all other cases, prior consultation is essential. In the absence of other possibilities, for example because of the person's refusal to appear for an examination, it must at least be requested that a medical expert make an assessment on the basis of the file, otherwise it cannot be argued that the person's insanity has been conclusively established (Varbanov v. Bulgaria, no. 31365/96, § 47, ECHR 2000-X, and Constancia v. the Netherlands (dec.), no. 73560/12, § 26, 3 March 2015).
108. With regard to the second condition to be met by any deprivation of liberty on grounds of "insanity", namely that the mental disorder must be of such a character or magnitude as to justify internment, the Court recalls that a mental disorder may be regarded as being of such a magnitude if it is established that internment is necessary on the ground that the person concerned needs, therapy, medication or other clinical treatment in order to recover or improve his or her condition, but also if it is necessary to monitor the person in order to prevent him or her, for example, from harming himself or herself or others (ibid., § 133, and Stanev, cited above, § 146).
109. The relevant date on which a person's alienation must have been conclusively established in the light of the requirements of Article 5 § 1 (e) is the date on which the measure depriving him or her of his or her liberty on account of his or her condition was adopted. However, as the third minimum requirement for the detention of a person suffering from mental disorder, namely that the detention cannot be validly prolonged without the persistence of the mental disorder, shows, any changes in the mental health of the detainee subsequent to the adoption of the detention order must be taken into account (Denis and Irvine, cited above, § 137).
110. The Court recalls that in certain circumstances the welfare of a mentally disordered person may be an additional factor to be taken into account, in addition to the medical elements, when assessing the need for institutionalization. However, the objective need for accommodation and social assistance should not automatically lead to the imposition of custodial measures. In the Court's view, any protective measure adopted in respect of a person capable of expressing his or her will must as far as possible reflect that person's wishes. Failure to seek the opinion of the person concerned may give rise to situations of abuse and hinder the exercise of their rights by vulnerable persons; therefore, any measure taken without prior consultation of the person concerned requires, in principle, a rigorous examination (N. v. Romania, no. 59152/08, § 146, 28 November 2017, and Stanev, cited above, § 153).
111. For detention to be "lawful", there must be some connection between, on the one hand, the authorised ground for detention having been invoked and, on the other, the place and regime of detention. In principle, the "detention" of a person on account of his or her mental disorder is "lawful" under paragraph 1(e) only if it takes place in a hospital, clinic or other appropriate establishment (see Ilnseher, cited above, § 134, Rooman, cited above, § 190, and Stanev, cited above, § 147). Moreover, the Court has had occasion to clarify that this rule applies even where the disease or disorder cannot be cured or the person concerned is not likely to respond to treatment (see Rooman, cited above, § 190).
112. The provision of adequate therapy has become a requirement under the broader concept of "regularity" of deprivation of liberty. Any detention of persons suffering from mental illness must have a therapeutic purpose, and more specifically aim at the cure or improvement, as far as possible, of their mental disorder, including, where appropriate, the reduction or control of their dangerousness. The Court has emphasized that wherever such persons are held, they are entitled to a medical environment appropriate to their state of health, accompanied by effective therapeutic measures to prepare them for eventual release (ibid., § 208).
113. The analysis of whether a particular institution is "appropriate" must include an examination of the specific conditions of detention there, including the treatment provided to persons with mental illness (ibid., § 210).
114. The deprivation of liberty referred to in Article 5 § 1 (e) has a dual function: on the one hand, a social function of protection, and on the other, a therapeutic function linked to the individual interest of the insane person to benefit from appropriate and individualized therapy or care. The need to ensure the first function should not a priori justify the absence of measures to accomplish the second. It follows that, in the light of Article 5 § 1 e), a decision refusing to release an insane person may become incompatible with the original purpose of preventive detention contained in the sentencing decision if the person concerned is deprived of liberty because he or she is at risk of reoffending, but at the same time does not benefit from the measures - such as appropriate therapy - necessary to demonstrate that he or she is no longer dangerous (ibid., § 210).
115. As regards the scope of the care provided, the Court considers that the level of medical treatment required for this category of detainees must go beyond basic care. Mere access to medical professionals, consultations or medication is not sufficient for a given treatment to be considered appropriate and therefore satisfactory under Article 5. The Court's role, however, is not to analyze the content of the care offered and administered. It is important that it be able to verify the existence of an individualized course of treatment taking into account the specificities of the mental health condition of the person interned, with the aim of preparing him or her for possible reintegration. In this area, the Court grants the authorities a certain margin of manoeuvre with regard to both the form and the content of the therapeutic treatment or medical course in question (ibidem, § 209).
b) Application of the above principles in the present case
116. The Court is called upon to determine, in the light of the above-mentioned principles, whether the applicant's detention at Rebibbia NC (see paragraph 15 et seq. above) fell within one of the grounds for deprivation of liberty listed in sub-paragraphs (a) to (f) of Article 5 § 1 and whether it was "lawful" for the purposes of that provision, and thus in compliance with Article 5 § 1.
117. The Court will examine, firstly, the period of the applicant's detention between 2 December 2018, the date on which he was imprisoned in Rebibbia NC after violating the conditions of house arrest, and 20 May 2019, the date of the judgment by which the Rome Court of Appeal ordered his release, and then, secondly, the period of detention from 21 May 2019 until 12 May 2020, the date of the applicant's release from prison and his transfer to a therapeutic community.
The detention between December 2, 2018 and May 20, 2019
α) Grounds for deprivation of liberty
118. The Court observes that the grounds for the deprivation of Petitioner's liberty regarding this period of detention are not controversial between the parties. The Court, taking into account the circumstances of the case, considers that this period falls within the scope of Article 5 § 1 (a).
β) Detention "through legal channels"
119. The Court must now determine whether the applicant's detention during the period in question was decided "in accordance with legal channels". The Convention refers here essentially to national law and lays down the obligation of the domestic authorities to comply with the substantive and procedural rules that it provides (see Ilnseher, cited above, § 135, and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 74, 22 October 2018).
120 In this connection, the Court considers that this detention was in accordance with domestic law as it was based on the sentence of one year and two months' imprisonment handed down by the Tivoli District Court on 22 November 2018 and on the decision of 27 November 2018 by which the same court reinstated the remand order (see paragraphs 19 and 27 above).
γ) "Regular" detention
121. For the purposes of article 5 of the Convention, the compliance of the detention with domestic law is not decisive in itself. It must also be established that the applicant's detention during the period in issue was "lawful" within the meaning of Article 5 § 1 of the Convention. The Court notes that the applicant was detained lawfully after being convicted by a competent court, and in particular on the basis of the judgment sentencing him to one year and two months' imprisonment.
122. As regards the medical treatment provided in prison, the Court observes that the question of whether an environment is appropriate in terms of medical care for a person suffering from a mental disorder is normally analysed in terms of Articles 3 and 5 § 1 (e) of the Convention, and not in terms of Article 5 § 1 (a). However, in relation to imprisonment, the Court has already noted that, while punishment remains one of the purposes of imprisonment, penal policies in Europe are placing increasing emphasis on the rehabilitative purpose of detention (Vinter and Others v. the United Kingdom [GC], nos. 66069/09 and 2 others, § 115, ECHR 2013 (extracts)). Similarly, the Court, while stressing that one of the essential functions of a prison sentence is to protect society, has recognised the legitimate aim of a policy of gradual social rehabilitation of persons sentenced to that sentence (Maiorano and Others v. Italy, no. 28634/06, § 108, 15 December 2009, and Mastromatteo v. Italy [GC], no. 37703/97, § 72, ECHR 2002-VIII). In the light of the above findings, it considers that the lack of adequate care could therefore pose a problem under Article 5 § 1 (a) where an applicant who is regularly detained after conviction suffers from a mental disorder of such severity as to prevent him or her from understanding and benefiting from the objective of social rehabilitation pursued by the detention.
123. In the present case, the Court observes that the applicant complains only of the lack of an adequate therapeutic pathway, without challenging, from the standpoint of Article 5 § 1 (a), the incompatibility of his detention with his mental state on account of his inability to grasp the social reintegration purpose of the prison sentence (see paragraph 91 above). Furthermore, it notes that it appears from the case file, and in particular from the psychiatric expertise of 9 November 2018, that the applicant, at the time of the trial, was fit to participate in it consciously (paragraph 18 above). In the absence of other evidence, it concludes that the applicant was capable, at the time of the execution of the sentence, of understanding the social reintegration purpose pursued by the sentence and of benefiting from it.
124. The Court concludes that the detention at issue was in accordance with the requirements of article 5 § 1 (a) of the Convention. Accordingly, there was no violation of that provision for the period of detention from 2 December 2018 to 20 May 2019.
The detention between 21 May 2019 and 12 May 2020
α) Grounds for deprivation of liberty
125. The Court recalls that the applicant contends that from 20 May 2019, the date on which the Rome Court of Appeal ordered his release, his deprivation of liberty lacked a legal basis.
126. The Government argued that the applicant had remained in prison because of his dangerousness and the lack of space in REMS and that the order for his placement in REMS was in any event a measure involving deprivation of liberty.
127. The Court recalls that, on 21 January 2019, the Rome JAP ordered the applicant's immediate placement in REMS for the period of one year, on the grounds that this measure was the only one adequate to deal with his social dangerousness (paragraph 27 above). It will therefore examine whether the detention could be justified as detention of a lunatic within the meaning of Article 5 § 1 e).
β) Detention "through legal channels"
128. The Court notes that the above-mentioned order for placement in REMS was never executed. As regards the Government's contention that the order could have justified the applicant's continued detention in prison since it provided for a measure involving deprivation of liberty, the Court notes that detention in prison and placement in REMS are different measures in terms of the conditions under which they are applied, the manner in which they are carried out and the aim they pursue. In any event, it considers that it is not necessary to determine whether the applicant's detention during the period in question was decided in accordance with the legal channels, since, for the reasons set out below, that period of detention did not satisfy the regularity requirements of Article 5 § 1 (e).
γ) "Regular" detention
129. The Court observes that the three conditions set out in the Winterwerp case-law (see paragraph 104 above) are met in the present case.
130 Firstly, it notes that at the time the placement in REMS was ordered the applicant's insanity had been demonstrated before the competent authority by means of objective medical expertise (see Ilnseher, cited above, § 127, and Rooman, cited above, § 192). In the present case, as described in detail above (paragraph 8), the psychiatric expertise communicated on 3 October 2017 to the GIP of the Court of Rome, concluded that the applicant had a personality disorder and bipolar disorder, aggravated by substance use. The expert added that the applicant was dangerous to society and emphasized that the applicant's therapeutic needs overrode the need for detention. The Court notes that the same conclusions were subsequently confirmed by the second expert opinion, provided on 9 November 2018 before the Tivoli Court (paragraph 18 above).
131. The Court observes, secondly, that the Rome JAP rightly considered that the applicant's mental disorder was of a nature that legitimised internment, given that the applicant, although on probation, had seriously violated the conditions of his probation, and that placement in REMS was therefore the only solution capable of satisfying the social protection imperative (see Ilnseher, cited above, § 127, and Rooman, cited above, § 192).
132. Thirdly, the validity of the applicant's continued detention was conditional on the persistence of his mental disorder. The latest assessment of his state of health, dated 30 April 2020, attested that the applicant still posed a danger to society, albeit to a lesser extent (see paragraph 39 above). There is no indication in the record that this risk had ceased to exist during the period in question.
133. That being so, the Court considers that, in the light of the case-law principles referred to above (see paragraph 111 above), the examination of lawfulness also requires an examination of whether the link between the reason for the deprivation of liberty and the place and conditions of detention has continued throughout the period of detention. It recalls that, in principle, the "detention" of a person suffering from mental illness can be regarded as "lawful" for the purposes of paragraph 1(e) only if it takes place in a hospital, clinic or other appropriate establishment (see Ilnseher, cited above, § 134, Rooman, cited above, § 190, and Stanev, cited above, § 147).
134. The Court notes that the purpose of the measure of detention in a REMS is not only to protect society, but also to provide the person concerned with the care necessary to improve, as far as possible, his state of health and thus make it possible to reduce or control his dangerousness (see, mutatis mutandis, Klinkenbuß v. Germany, no. 53157/11, § 53, 25 February 2016, Rooman, cited above, § 208). It was therefore essential that the applicant be offered appropriate treatment in order to reduce the danger he posed to society. However, it appears from the file that even after the judgment by which the Rome Court of Appeal had ordered his release, the applicant was not transferred to a REMS. Instead, he continued to be detained in ordinary prisons in poor conditions and did not receive individualized therapeutic care (see the conclusions on the ground of Article 3, paragraph 88 above).
135. The Court reiterates that the State is obliged, notwithstanding logistical and financial problems, to organise its prison system in such a way as to ensure that prisoners are treated with respect for their human dignity (Muršić v. Croatia [GC], no. 7334/13, § 99, 20 October 2016, and Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, § 229, 27 January 2015). Even if, initially, a discrepancy between available and necessary capacity may be considered acceptable (mutatis mutandis, Morsink v. the Netherlands, no. 48865/99, § 67, 11 May 2004), the delay in obtaining a place cannot go on indefinitely and is only acceptable if it is duly justified. The authorities must show that they did not remain passive but that, on the contrary, they actively sought a solution and tried to overcome the obstacles to the application of the measure. In the present case, it appears from the file that, from February 2019 onwards, the DAP sent numerous requests for reception to the REMS in the Lazio region and to those present on the national territory in order to find a place for the applicant, but without success, due to the lack of available places (paragraphs 28 ff. above). The Court notes that, faced with these refusals, the national authorities did not create new places within the REMS or find another solution. It was up to them to assure the applicant that a place in a REMS would be available or to find an adequate solution. The Court cannot therefore consider the lack of places as a valid justification for keeping the applicant in prison.
136. Accordingly, the applicant's deprivation of liberty from 21 May 2019 did not take place in a manner consistent with the requirements of Article 5 § 1 (e) (Rooman, cited above, §§ 190 and 208-210).
137. There has therefore been a violation of Article 5 § 1 of the Convention.
The alleged violation of Article 5 § 5
138. Invoking Article 5 § 5, the applicant also complains that he had no effective remedy that would have enabled him to obtain compensation for the harm he says he suffered as a result of his detention contrary to Article 5 § 1. According to Article 5 § 5 of the Convention:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have the right to compensation."
139. The Government submitted that the applicant should have brought an action for damages before the court on the basis of Article 2043 of the Italian Civil Code, which would have enabled him to seek compensation for the damage suffered as a result of the alleged infringement of his personal freedom.
140. The applicant argues that article 2043 of the Civil Code is not an effective remedy because, in his view, the burden of proof on the victim of the damage is excessive, since the victim is supposed to prove fraud or gross negligence on the part of the public administration.
141. The Court recalls that Article 5 § 5 is complied with if compensation can be claimed for a deprivation of liberty that occurred in contravention of paragraphs 1, 2, 3 or 4. The right to compensation under paragraph 5 therefore presupposes that a violation of one of these other paragraphs has been established by a national authority or by the organs of the Convention. In this respect, the effective enjoyment of the right to reparation guaranteed by the latter provision must be assured with a sufficient degree of certainty (see Stanev, cited above, § 182, and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X).
142. The Court considers that where there is an arguable claim that there has been a violation of one or more Convention rights, the victim must have a mechanism for establishing the responsibility of State officials or bodies for that failure. Furthermore, in appropriate cases, compensation for the damage - both material and non-material - resulting from the violation must in principle be available and form part of the reparation scheme put in place (Roth v. Germany, nos. 6780/18 and 30776/18, § 92, 22 October 2020).
143. In view of these factors, the Court has concluded in several respects that, where there is a finding of a violation of an Article of the Convention, there is a strong presumption that the violation has caused non-pecuniary damage to the injured party. The remedies provided for at national level must therefore respect this presumption and not make financial compensation conditional on the establishment of fault on the part of the respondent authority.
144 With particular reference to compensatory remedies concerning the conditions of detention, the Court has held that the burden of proof imposed on the applicant must not be excessive (see Neshkov and Others, cited above, § 184, and Polgar v. Romania, no. 39412/19, § 82, 20 July 2021). Financial compensation should be available to any person who is or has been detained in inhuman or degrading conditions and has applied for it. The Court has repeatedly held that a finding that the conditions of detention do not meet the requirements of Article 3 of the Convention gives rise to a strong presumption that they have caused moral damage to the injured person (see Neshkov and Others, cited above, § 190, and Roth, cited above, § 93, and Ananyev and Others, cited above, § 229). The domestic rules and practices governing the operation of the compensatory remedy must reflect the existence of this presumption rather than making compensation conditional on the applicant's ability to prove, by extrinsic evidence, the existence of non-pecuniary damage in the form of emotional distress (see Neshkov and Others, cited above, § 190, and Polgar, cited above, § 85). Therefore, making the award of compensation conditional on the applicant's ability to prove the fault of the authorities and the unlawfulness of their actions may render existing remedies ineffective (see Roth, cited above, § 93, and the references cited therein). The Court has recalled, in this connection, that poor conditions of detention are not necessarily the result of failings attributable to the prison administration, but more often than not have their origin in more complex factors, for example problems of penal policy (Rezmiveș and Others v. Romania, nos. 61467/12 and 3 others, § 124, 25 April 2017).
145. Similarly, the Court has held that excessive formalism as regards the proof to be provided of non-pecuniary damage caused by unlawful detention has resulted in the State's liability action being rendered ineffective under Article 5 § 5 (Danev v. Bulgaria, no. 9411/05, § 34, 2 September 2010 and, mutatis mutandis, Iovchev v. Bulgaria, no. 41211/98, § 146, 2 February 2006). In this connection, in the cases of Picaro v. Italy and Zeciri v. Italy, it found that the civil action for compensation for infringement of personal freedom provided for in the Italian legal system did not constitute an effective remedy for obtaining redress for violations of Article 5, paragraphs 1 and 4, of the Convention, as the Government had not produced any examples showing that such an action had been brought successfully in similar circumstances (Picaro v. Italy, no. 42644/02, § 84, 9 June 2005, and Zeciri v. Italy, no. 55764/00, § 50, 4 August 2005).
146. Finally, in the context of Article 6, the Court recalled the very strong, albeit rebuttable, presumption that excessive delay in the enforcement of a binding and enforceable judgment gives rise to non-pecuniary damage. The fact that compensation for non-pecuniary damage in cases of non-enforcement is conditional on the establishment of fault on the part of the defendant authority is difficult to reconcile with this presumption. The delays in implementation found by the Court are not necessarily due to irregularities on the part of the administration, but may be attributable to deficiencies in the system at national and/or local level (see Bourdov, supra, § 111).
147. The Court observes in the present case that the civil action for damages provided for in Article 2043 of the Civil Code - in which the Government see an effective remedy - requires the applicant to prove the existence of the wrongful act, the administration's fraud or fault and the damage suffered. The Court notes that the Government have not produced any examples showing that such an action has been successfully brought in circumstances similar to those in the present case (see Picaro, cited above, § 84, and Zeciri, cited above, § 50).
148. In the light of the foregoing, the Court considers that the applicant had no means of obtaining, with a sufficient degree of certainty, redress for violations of Article 5 § 1 of the Convention.
149. There has therefore been a violation of Article 5 § 5 of the Convention.
On the alleged violation of Article 6 § 1
150 The applicant complains of a violation of the right to a fair trial on account of the failure to comply with the decision of the Rome Court of Appeal of 20 May 2019. He invokes Article 6 § 1 of the Convention, which reads:
"Everyone is entitled to a fair hearing (...) by a court (...) which shall decide (...) on the merits of any criminal charge against him."
151. The applicant recalls the principles established by the Court in Assanidzé, cited above, and submits that the national authorities have an obligation to enforce judicial decisions ex officio.
152. The Government alleged that the authorities had tried to find an available place in a REMS for the applicant as quickly as possible, pointing out that the applicant was considered dangerous to society and could not therefore be released.
153. Referring to the principles set out in paragraph 63 above, the Court reiterates that the execution of a judgment or order, by whatever court, must be regarded as an integral part of the proceedings within the meaning of Article 6 § 1 of the Convention and that failure to execute a final and enforceable court decision would deprive the guarantees enshrined in that Article of their full effect.
154. The Court observes that the judgment of 20 May 2019 by which the Rome Court of Appeal ordered the applicant's release has not been executed (see paragraph 25 above). In particular, following the order issued by the JAP on 21 January 2019 (paragraph 27 above), the applicant should have been placed in REMS, yet he remained in prison. She therefore concluded that there had been a violation of Article 6 § 1 of the Convention.
On the alleged violation of Article 13 in conjunction with Articles 3 and 5 § 1
155. Invoking Article 13 in conjunction with Articles 3 and 5 § 1, the applicant maintained that he had not had an effective remedy to complain about the lack of adequate therapeutic care during his detention and that he had not been able to have the violation of his rights under Article 5 § 1 of the Convention remedied. The first of these provisions is worded as follows:
"Everyone whose rights and freedoms as set forth in the (...) Convention have been violated shall be entitled to an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
156. The parties refer to their arguments on the plea of non-exhaustion of domestic remedies.
157. The Court considers, in the light of its conclusion in paragraph 64 above and its findings in relation to Articles 3 and 5 § 1 (see paragraphs 88, 124 and 154 above), that it is not necessary to examine separately the complaints under Article 13 in conjunction with Articles 3 and 5 § 1 of the Convention.
On the alleged violation of Article 34 of the Convention
158. The applicant submits that Italy has failed to comply with its obligations under Article 34 of the Convention because of the delay in carrying out the measure indicated by the Court in accordance with Rule 39 of the Rules of Court.
Article 34 of the Convention provides:
"An application may be submitted to the Court by any person, non-governmental organization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights recognized in the Convention or its Protocols. The High Contracting Parties undertake not to hinder by any means the effective exercise of this right.
Submissions of the parties
(a) The Applicant
159. The Applicant recalls the vital role played by interim measures in the Convention system and sees the inexplicable and prolonged non-compliance with the measure indicated by the Court as a violation of his right to an individual remedy guaranteed by article 34 of the Convention.
160 The applicant criticised the Government's justification for the delay in implementing the measure, namely the lack of places in the REMS, arguing that this was exactly the reason why he had applied to the Court. He added that the State was, and is, solely responsible for the structural problem of the lack of places in the said facilities.
(b) The Government
161. The Government submitted that the authorities had done everything in their power to comply with the interim measure and transfer the applicant to a REMS. The obstacle was the lack of available places in these facilities. The confinement between March and May 2020 due to the covid-19 pandemic would also have had an impact on the activities of the prison administration.
162. The Government further pointed out that the authorities could not release the applicant either, as this would have entailed a serious and concrete risk to collective security, given the numerous decisions of the domestic courts which indicated that the applicant was dangerous to society.
163 Finally, the Government submits that it is fully aware of the importance of the issue of insufficient places in REMS and that it is taking the necessary steps to resolve the problem. In particular, it states that discussions on the reform of the agreement between the state and the regions concerning REMS are underway and that a specific project has been presented in this regard as part of the reforms of the health system financed under the European Union's "Recovery Fund.
The Court's assessment
a) Applicable principles
164. The Court reiterates that the obligation laid down in Article 34 in fine requires Contracting States not only to refrain from putting pressure on applicants but also to refrain from any act or omission which, by destroying or obliterating the subject-matter of an application, would render it useless or otherwise prevent the Court from examining it in accordance with its usual method (see Mamatkoulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005-I). It is clear from the purpose of this rule, namely to ensure the effectiveness of the right of individual petition, that the intentions or reasons underlying an action or omission prohibited by Article 34 are of little relevance in assessing whether or not that provision has been complied with. What is important is to determine whether the situation created by the action or omission of the authorities is in conformity with section 34. The same applies to compliance with interim measures under Article 39, since such measures are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition. It follows that there will be a violation of Article 34 if the authorities of a Contracting State do not take all the measures that could reasonably be envisaged to comply with the measure indicated by the Court (Paladi v. Moldova [GC], no. 39806/05, §§ 87-88, 10 March 2009).
165 In this connection, the Court observes that it applies Article 39 strictly and, in principle, only where there is an imminent risk of irreparable harm. Although there is no specific provision in the Convention concerning the areas of application, applications most often relate to the right to life (Article 2), the right not to be subjected to torture and inhuman treatment (Article 3), and exceptionally to the right to respect for private and family life (Article 8) or to other rights guaranteed by the Convention (see Mamatkoulov and Askarov, cited above, §§ 103-104).
166. In order to ascertain whether the respondent State has complied with the provisional measure indicated, it is necessary to start from the wording of the measure itself. The Court must verify whether the respondent State has complied with the letter and the spirit of the interim measure indicated to it. In considering a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not reconsider the appropriateness of its decision to apply the measure in question. It is for the respondent Government to demonstrate to the Court that the interim measure has been complied with or, in exceptional cases, that there has been an objective obstacle to compliance and that it has taken all reasonable steps to remove the obstacle and to keep the Court informed of the situation (see Paladi, cited above, §§ 91-92). A significant delay on the part of the authorities in implementing the interim measure, which resulted in the applicant running the risk of suffering the treatment against which the measure was intended to protect him, constitutes a failure by the State to fulfil its obligations under Article 34 of the Convention (M.K. and Others v. Poland, nos. 40503/17 and 2 others, §§ 237-238, 23 July 2020).
b) Application of the above principles in the present case
167. The Court must, in the present case, examine whether the authorities complied with the interim measure indicated by the Court, which consisted in ensuring the applicant's transfer to a facility (REMS or other) capable of providing adequate therapeutic treatment for his mental illness.
168. In this regard, the Court notes that the domestic authorities transferred the applicant to a therapeutic community on 12 May 2020. It finds, therefore, that the Government complied with the interim measure indicated (see paragraphs 33 and 42 above).
169. Next, the Court must consider whether the Government complied with the interim measure within a reasonable time. In this connection, it observes that the Italian authorities transferred the applicant thirty-five days after the Court had adopted the measure. She noted at the outset that such a period appeared in itself very long and raised doubts as to its compatibility with article 34 of the Convention.
170. The Court must then verify whether such a delay in applying the interim measure was justified by exceptional circumstances.
171. The Court is not convinced by the argument based on the lack of places in the REMS. Indeed, it recalls that, already on 21 January 2019, the Rome JAP had replaced the measure of probation with the immediate application of detention in REMS (paragraph 25 above). The Government was therefore aware of the imperative to find a place in a suitable facility for the applicant long before the Court's interim measure was adopted. As the Court has repeatedly emphasised, it is the responsibility of every Government to organise its prison system in such a way as to ensure respect for the dignity of prisoners, irrespective of any financial or logistical difficulties (see Muršić, cited above, § 99, and Neshkov and Others, cited above, § 229). In the present case, it was therefore for the Italian Government to find another suitable solution for the applicant, instead of a place in REMS, as the Court had expressly indicated (see paragraph 34 above). The Court cannot therefore consider the lack of space in the REMS as a valid justification for the delay in implementing the interim measure indicated by the Court.
172. Secondly, as regards the March 2020 confinement in Italy, the Court understands that this situation may have had an impact on the proper functioning of the administration. However, it is not convinced by this argument, as the Government have not explained how the confinement would have made it more complicated to obtain a place in REMS or another facility or delayed the applicant's transfer, given also that the domestic authorities knew as early as 21 January 2019, thus well before the confinement began, that the applicant had to be transferred there (see paragraph 27 above). Accordingly, since interim measures are only communicated in exceptional circumstances, in particular where there is an imminent risk of irreparable harm to the applicant (see Mamatkoulov and Askarov, cited above, §§ 103-104 and 120), the Court considers that, although a certain delay in the execution of the interim measure was acceptable in the present case in an exceptional situation such as that of the confinement, thirty-five days nevertheless appears excessive.
173. In the absence of any other justification, the Court concludes that the delay in the execution of the interim measure is excessively long (see M.K. and Others, cited above, §§ 237-238) and that the Italian authorities have therefore failed to fulfil their obligations under Article 34.
174. There has therefore been a violation of article 34 of the Convention.
ON THE APPLICATION OF ARTICLES 41 and 46
175. Under article 41 of the Convention:
"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party permits only imperfect relief from the consequences of that violation, the Court shall, if necessary, afford just satisfaction to the injured party."
176. Under Article 46 of the Convention:
" 1. The High Contracting Parties undertake to abide by the final judgments of the Court in cases to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.
177. The applicant claims EUR 129,187.74 for the non-pecuniary damage he considers he has suffered. He considers that the just satisfaction due to him should be calculated on the basis of the compensation provided for each day of illegal detention under Italian law.
178. The Government submitted that the applicant could not use the criteria used by the Court to quantify the amount of damage resulting from unlawful detention in the case of a person who was to be released, as the applicant would have been deprived of his liberty in any event, including in a REMS.
179. The Court found that the applicant had suffered definite non-pecuniary damage as a result of being kept in detention without adequate care for his health, in violation of Articles 3 and 5 § 1 of the Convention. It awarded him EUR 36,400 for non-pecuniary damage, plus any amount that may be due on this sum as tax.
Costs and expenses
180. The applicant claimed EUR 53,985.98 in respect of the costs and expenses he had incurred in the proceedings before the Court.
181. The Government said nothing in this regard.
182. According to the Court's case-law, an applicant may obtain reimbursement of his costs and expenses only if it is established that they were actually incurred, that they were necessary and that their rate was reasonable. In the present case, taking into account the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to award the applicant the sum of EUR 10,000 for the proceedings before it, plus any amount that may be due on that sum as tax.
183. The Court considers it appropriate to base the rate of default interest on the interest rate of the marginal lending facility of the European Central Bank plus three percentage points.
184. Referring to the principles set out in the Strazimiri case, cited above, the applicant requests the Court to order the Government to adopt all the general measures necessary to ensure that mentally disturbed prisoners, who are the recipients of the security measure of hospitalisation in REMS, are promptly transferred to it, in particular by considerably increasing the number of places available in the REMS system.
185. The Court recalls that its judgments are essentially declaratory in nature and that, in general, it is primarily for the State concerned to choose, under the supervision of the Committee of Ministers, the means to be used in its domestic legal order to fulfil its obligation under Article 46 of the Convention, provided that these means are compatible with the conclusions contained in the Court's judgment (see, inter alia, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII, Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I, and Grande Stevens and Others v. Italy, nos. 18640/10 and 4 others, § 233, 4 March 2014).
186 As things stand and in the light of the information provided by the parties, the Court does not consider it necessary to indicate any general measures that the State should adopt for the execution of the present judgment.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application inadmissible insofar as it relates to the period of detention from July 2 to November 22, 2018, and admissible for the rest ;
Holds that there has been a violation of article 3 of the Convention;
Holds that there has been no violation of Article 5 § 1 of the Convention for the period of detention from 2 December 2018 to 20 May 2019;
Holds that there has been a violation of Article 5 § 1 of the Convention for the period of detention from 21 May 2019 to 12 May 2020;
Holds that there has been a violation of Article 5 § 5 of the Convention;
Holds that there has been a violation of Article 6 § 1 of the Convention;
Holds that there is no need to examine the complaint under Article 13 of the Convention;
Holds that there has been a violation of Article 34 of the Convention;
(a) that the respondent State shall pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums
EUR 36,400 (thirty-six thousand four hundred euros), plus any amount that may be due on that sum by way of tax, for non-pecuniary damage;
EUR 10,000 (ten thousand euros), plus any amount that may be due on that sum from the applicant by way of tax, for costs and expenses;
(b) that from the expiration of the said period until payment, these amounts shall bear simple interest at a rate equal to the marginal lending facility of the European Central Bank applicable during that period, increased by three percentage points;
Dismisses the remainder of the claim for just satisfaction.
Done in French, and notified in writing on 24 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Procedure.
Renata Degener Marko Bošnjak