In 2022, from data collected by Antigone's Observatory on Prison Conditions (ITA link) in the 97 prisons visited across the country, in 35 percent of institutions there were cells in which 3 sq. m. of floor space was NOT guaranteed for each person detained.
While the crowding rate, as of April 30, 2023, was 119 percent, with about 9,000 too many people compared to the places actually available. In some regions, the situation is even more worrying.
Giandomenico Caiazza, President of Italian Criminal lawyers association UCPI: “The overcrowding index continues to increase, with peaks worthy of South American prisons: Tolmezzo 190 percent, San Vittore 179 percent, Bergamo 178 percent, to give just a few examples. But it is the structural data that makes us understand the inevitability of this trend of shame: while the capacity in 2022 increased by 0.8 percent, the attendance increased by almost 4 percent. The average age of detainees is increasing by the day, with the obvious repercussions on the management of the right to health care: 30 percent of the detainee population is over 50, while the number of those over 70 has doubled (1,100) (and thank goodness that the rule in this case provides for home detention to be preferred!). The conditions in which prisoners find themselves should put us to shame, if we care at all: in our prisons, 40 percent of which are buildings built in a time span from 1800 to 1950, 45 percent of those overcrowded cells lack hot water, 12.4 percent lack heating, and 56 percent lack showers. In 35 percent of them, the minimum space of 3 square meters (three!) imposed by European rules, and before that by a sense of decency and minimal respect for human dignity, is not guaranteed.
But the really explosive figure in my opinion from the point of view of prison policy, which questions the responsibilities of Parliament and the government on the underlying strategies, assuming there are any, concerns the size of the sentences that final inmates are serving. Prisoners who have to serve more than 20 years are 6.6 percent; lifers 4.8 percent; those with remaining sentences of less than three years are 51 percent, while another 18 percent have to serve sentences of less than one year.
What does this mean? That nearly 70 percent of the inmates are entitled to apply for, and if deserving of, alternative forms of imprisonment to prison. But the Supervisory Courts are literally overwhelmed by the files, and before that the staff that has to "observe" and report on the inmates is dramatically inadequate (at Regina Coeli, for example, only one educator for every 300 inmates).”
ECtHR's 2013 Torreggiani decision stating in a pilot judgment that Italin prisons violate art 3 European Convention of Human rights (inhuman and degrading treatment).
Suicides in Italian prisons are monitored by the Italian Ombudsman for prisoners, Garante Nazionale dei diritti delle persone private della libertà, with his study entitled "Per un'analisi dei suicidi negli Istituti penitenziari" available here https://www.garantenazionaleprivatiliberta.it/gnpl/resources/cms/documents/baefe95d2cc04f34eb23db56ba3b6fea.pdf published on 5 January 2023 (update May 2023).
LINKS SOFT LAW PRISON CONDITIONS
European Prison Rules (translated into all EU languages) https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8d25
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf
United Nations Rules for the Protection of Juveniles Deprived of their Liberty https://www.unodc.org/pdf/criminal_justice/United_Nations_Rules_for_the_Protection_of_Juveniles_Deprived_of_their_Liberty.pdf
United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Wonen Offenders with their Commentary (the Bangkok Rules) https://www.unodc.org/documents/justice-and-prison-reform/Bangkok_Rules_ENG_22032015.pdf
Women and children
41 bis and high security
Suicides and self-harm
Isolation and critical events
Employment and training
Inhuman and degrading treatment: compensation
Prison staff and operators
Telephone and video calls
External penal area
Yes, torture is punished. We will not go backwards
Torture in Europe and in the world
The crime of torture so far (see automatic translation below)
Tales from the torture trials:
Santa Maria Capua Vetere
One year as Ombudsman
A year of legal information desks
The Cospito case
Captains behind bars. The condition of "scafisti" in Italian prisons and CPRs
Uprooted. The transfers of detained people
Things from another world. The separation of women and men
Questions. Communicating with the prison administration
Affectivity in prison
Prison and mental health
LGBTQI+ rights in prison
The diffuse prison. Urban violence
Focus torture: torture trials against italian police officer, so far
From the criminal proceedings followed by Antigone: reflections on the development of the crime of torture
It was 14 July 2017 when, with Law 110, the crime of torture was introduced into the Criminal Code with Article 613 bis.
Since then, quite a few detainees have approached the Antigone association to report that they have been victims of acts of violence, and some of these reports have become challenges to the crime of torture.
On the basis of the experience gained, it is possible to make some considerations regarding the development of the application of the torture offence with particular reference to the element of conduct.
It should be pointed out that, according to the case law that has emerged, the crime of torture is recognised as a crime of possibly habitual conduct in that it may be integrated by several violent, seriously threatening or cruel acts, repeated over time, or by a single act damaging the victim's safety or individual and moral liberty and entailing inhuman and degrading treatment (Court of Cassation 8973/2022 Sec. V, Court of Cassation 47079/2019 Sec. V).
Moreover, the expression 'by means of several conducts' refers to a plurality of episodes repeated over time but also to a plurality of violent conducts held in the same chronological context.
In the cases followed by Antigone, the conducts were always carried out by a more or less significant number of prison officers who actively participated in the violence or witnessed it.
I will return later to the analysis of the conduct of the prison officer who 'merely' witnessed the acts of violence without directly taking part in them.
The crime of torture on trial
The analysis will focus on the trials that have taken place or are taking place for the crime of torture in which the association has intervened with a complaint first and then with the constitution of a civil plaintiff: the trial that took place before the Court of Siena (events that took place at the San Gimignano Prison House on 11. 10.10.2018), and the trials that are being held before the Court of Turin (events that took place at the 'Lorusso Cotugno' prison in Turin between August and November 2018) and before the Court of Bari (events that took place at the Bari prison on 27.4.2022).
"Why don't you go back to your country", "don't move or I'll strangle you", "I'll kill you"; then the officers lifted him up from the ground and continued to push him to make him walk and then again threw him to the ground; while the detainee was on the ground, two officers immobilised him by holding him by the arms and the neck putting him with his face to the ground, an officer mounted him with his weight and put a knee on his back at the height of his left kidney
For the events that occurred at San Gimignano prison on 11 October 20181) to the detriment of a foreign detainee, the alleged conduct was carried out by 15 prison police officers.
As reconstructed in the indictment filed by the Public Prosecutor's Office of Siena, the conduct of the defendants was as follows two prison police officers, surrounded by others, taking the victim by surprise, 'grabbed him by the arms' as he was leaving the cell to go to the shower and 'brutally pushed him towards the corridor, even making him lose his slippers'; an officer 'punched him on the head', the other officers threw him to the ground, surrounding him 'in such a way as to create a sort of partial screen from the cameras' and hit him 'with their feet on various parts of his body'; they threatened him while the detainee 'groaned and shouted at the violence he was receiving' and insulted him with phrases such as 'You son of a bitch', 'Why don't you go back to your country', 'Don't move or I'll strangle you', 'I'll kill you'; then the officers would pick him up off the ground and continue to push him to make him walk and then throw him to the ground again; while the detainee was on the ground, two officers would immobilise him by holding him by the arms and the neck, putting him face down on the ground, one officer would mount him with his weight and put his knee on his back at the level of his left kidney the officers then made him get up from the ground and took off his trousers to drag him while another officer grabbed him again by the throat and another one twisted his arm behind his back and dragged him towards the cell and continued to beat him with slaps and punches inside the cell together with five other officers; finally they left the detainee in the cell without his trousers and without providing him with blankets and a mattress until the following day.
In this case, as also reconstructed in the conviction sentence no. 58/2021 of the Court of Siena, the repeated conduct of "serious violence or threats" was considered to have taken place - "the conduct is to be considered repeated [...] since several acts of violence and threats [...] were carried out against the offended person [...] consisting of multiple physical assaults punctually emerging from the video-recording, which can be counted among the "several conducts" provided for the integration of the crime of torture". -.
In its assessment of the conduct, the Court also duly took into account, as an indication of "the abstract considerable offensive charge", the number of persons who acted, the minority condition of the victim and the unforeseen nature of the action.
The element of acting with cruelty is determined by the "uselessness" of the suffering inflicted from which a particularly high level of "reprehensibility of the act" is inferred.2)
For the facts that occurred at the "Lorusso Cotugno" Penitentiary House in Turin, the conduct of torture is contested to 18 prison police officers and was committed against several inmates.3)
As already mentioned, the events took place over a period of about four months and the alleged torture behaviour is as follows: a prison officer (together with two other unidentified persons) entered the cell of a detainee and assaulted him "with violent slaps on the face and neck" while insulting him by calling him "shit"; later on, the same officer, while delivering a letter from his girlfriend to the same victim, forced her to say out loud "I am a piece of shit".
Also during the same day, the same officer together with two others 'forced him to stand in the corridor of the section to which he was assigned, with his face to the wall for about 40 minutes, insulting him repeatedly with expressions such as "Piece of shit" and forcing him to repeat aloud "I am a piece of shit".
Shortly afterwards, also during the same day, the three officers led the detainee to a room and here they violently hit him with slaps on his face and neck and punches on his back.
In particular, one officer 'hit him first with a violent slap to the face', another officer 'hit him with repeated slaps to the face and head, while wearing gloves' and the third officer 'hit him with violent punches to the back' and in order to humiliate him 'forced him to return to the corridor and to stand again with his face to the wall' when all the other detainees in the section were passing by on their way back to their cells.
On other occasions, the same three prison officers together with two others carried out arbitrary searches in the inmate's cell by throwing his clothes on the floor, tearing shelves from the wall and spraying dishwashing liquid on the mattress and clothes.
"We're going to make life very hard for you, we're going to make you pay for it, we're going to make you not want to be in here."
On one occasion, one of the officers threatened him, saying, "We're going to make your life very hard, we're going to make you pay, we're going to make you not want to be in here."
Three prison officers, in conspiracy with unidentified others, are accused of committing the following against a prisoner on the day he entered the prison, two officers, while leading the prisoner towards his cell on the way up the stairs "hit him from behind with violent and repeated slaps, punches and kicks" and meanwhile laughed; one of them hit him first then another officer hit him with an outstretched leg kick on his support foot causing him severe pain due to which the victim limped for about three months, finally, the three officers, in the first days of detention, forced the detainee to sleep on the metal slab of the bunk by not giving him the mattress, preventing him from going to the exercise room and to the doctor.
Two prison police officers acted with serious violence and cruelty, causing acute physical suffering to another detainee. In particular, they would take him out of his cell at night and carry him up the stairs to the ground floor where they would violently hit him, causing him to fall to the ground once or twice, and when the detainee tried to get up "they would hit him even harder with kicks to the legs causing him to hit the wall." One officer took off his belt and hit him hard on the arm.
And again two prison police officers with serious violence and cruelty caused acute physical suffering to another prisoner upon entering the prison while taking him to the section "they hit him violently with repeated punches and kicks and in the face with a wooden stick."
Two other prison police officers acted with serious violence and cruelty towards another detainee, causing him severe physical suffering, i.e. at the moment of his entry into the prison, while they were taking him to the section "they violently hit him with repeated punches and slaps to the head and face, as well as with numerous kicks to the legs." One officer also forcefully crushed his foot with his heel causing him particularly acute pain and while hitting him the officers told him "For what you have done you must die here".
The humiliating and sadistic behaviour alleged against the defendants is characterised by that additional quid of brutal and gratuitous violence.
As pointed out in the precautionary order of 30.9.2019 even the slap inflicted on the face by a representative of the Police Force to a subject who is completely under his control constitutes a serious attack on personal dignity "since the face represents the part of the body that expresses the individuality of the person manifesting his social identity and constitutes the centre of his senses - sight, speech and hearing - used for communication with others."
Certainly indicative in this sense is the ECHR judgment, Bouyd v. Belgium of 28.9.2015, which dwelt on the reasons why a slap inflicted by a representative of the forces of law and order may constitute inhuman and degrading treatment.
In these cases, in fact, the slap, the ECHR pointed out, constitutes a serious attack on personal dignity because the face represents the part of the body that expresses the individuality of the person, which manifests his social identity and constitutes the centre of his senses: 'a slap - however isolated, unpremeditated and without serious or lasting effects on the body - may be perceived as a humiliation by the person receiving it' as it highlights that superiority-inferiority relationship that by definition characterises the relationship between authority and the individual in custody.
He was kicked in the back while his legs were held down by putting his weight on his feet; another assistant, holding the detainee by his left lapel, made him fall to the floor and with one foot tried to hold him down by kicking him from above downwards and hitting him on the left chest
As regards the proceedings pending before the Court of Bari, the offence of torture is charged against six prison police officers4) who acted against a detainee suffering from a psychiatric pathology, "therefore more vulnerable", to whom, according to the charge, while he was lying on the floor as he had been voluntarily made to fall down shortly before with kicks on the buttocks and slaps on the face, he was subjected "for about four minutes to inhuman and degrading treatment.
In particular, according to the charges, these were the individual conducts: a prison police officer hit the victim with numerous slaps and kicks and when the detainee fell to the floor as a result of the officer's conduct, he was kicked in the back while holding his legs by putting his weight on his feet; another assistant, holding the detainee by his left lapel, made him fall to the floor and with one foot tried to hold him down by kicking him from the top to the bottom and hitting him on the left chest also kicked him at the level of the head so much that the detainee tried to protect himself with his arms another assistant launched several kicks against the detainee's back and, from the top downwards, against the victim's right and left side, also kicking him violently in the face; another officer launched a kick against the detainee's back and another against his arm; two other officers witnessed the scene without actively participating in it but did not prevent their colleagues' conduct.
The conduct of the officer, who witnessed the violence without directly taking part in it, is also mentioned in the complaint filed by the Public Prosecutor's Office of Bari.
It is therefore necessary to reiterate that this hypothesis falls within the category of concurrence of persons in the offence (Article 110 of the Criminal Code) where, as is well known, a distinction is made between the perpetrators of the conduct and the so-called auxiliaries who contribute to the commission of the offence by providing a contribution, aid or any kind of contribution.
Even 'mere' presence contributes to the realisation of the state of suppression, fear and sense of annihilation that the victim suffers.
On this point, in the trial concerning the events that took place at the San Gimignano Prison House, cited above, the Judge reasoned as follows: 'Each of the fourteen people present in front of the offended person's cell contributed - by their presence there, at the moment of the opening of the security door and by their presence during the whole course of the event [...] - and in the following itinerant moment, to integrate the typical fact, since the very presence of all those people was an essential element to realise the typical fact described by art. 613 bis c.p. which, in its pregnant and peculiar offensiveness, finds in the number of the agents present an indispensable external and commissive behaviour that contributed to the realisation of the case".
There are those who stand by and watch
It is therefore not necessary for the purposes of the concurrence of persons in the offence referred to in Article 613 bis of the criminal code for active conduct to be involved in the violence, since the concurring party may also be an 'aider', 'determiner' or 'instigator'.
In this sense, the pronouncement of the Supreme Court of Cassation (Sentence No. 8973/2022) with reference to the events that occurred at the Santa Maria Capua Vetere prison on 6 April 2020 is also interesting.5)
The ruling analyses the conduct in the criminal offence referred to in Article 613 bis of the Criminal Code held by the then Commander of the institute and not present inside the institute at the time of the events.
The Judges pointed out that participation in the executive acts of torture cannot be excluded from a material point of view with the contribution made before and afterwards but also with the moral contribution (of instigation).
This is because, the Supreme Court points out, the conspiracy referred to in Article 110 of the Criminal Code "is based on the so-called. model of causal typification, according to which all conduct with an etiological effect in respect of the damaging event can be traced back to the concurring event, within this regulatory framework, therefore, the material concurrence cannot be limited [...] to the perpetrator alone, i.e. to the person who carries out the executive acts of the offence [...] but is, evidently, also extended to the c. d aider or abettor), i.e. the person who merely contributes any material aid in the preparation or execution of the offence; further relevance is assumed, however, by the determiner - who gives rise in others to a criminal intent that did not exist before - and the instigator - who merely reinforces or excites in others an already existing criminal intent - who integrate the case of moral complicity".
In the analysis of the assessments of the conduct of the offence of torture, it is worth mentioning the trial that is being held before the Court of Monza, inter alia, for the offence of wounding four prison police officers accused of an episode of violence allegedly committed against a detainee.6)
The alleged offence is as follows: the four defendants caused personal injuries consisting of a bilateral orbital contusion trauma and a fracture of an upper front tooth, judged to have healed in a total of 17 days.
In particular, while the officers were transporting the victim on a stretcher from the infirmary clinic - where he had been taken as he had been on hunger and thirst strike for a week - to cell No. 121 located in section D 'health monitoring', during the journey an officer hit him with repeated slaps and punches to the face and head, while three other officers facilitated this conduct, immobilising the detainee by holding his arms and legs, and then finally all of them made him fall from the stretcher onto the floor of cell No. 121.
In the course of the investigation, the offence under Article 613 bis of the Criminal Code was also originally hypothesised, on which, by order of 22 March 2021, the case was finally dismissed.
According to the Judge, in the case at hand, the element of conduct cannot be considered to have been established since it is a crime "formally bound by the modalities of the conduct" (serious violence or threats, cruelty) and there was no multiple or habitual conduct but only a single episode, nor, the Judge added, did the act involve inhuman and degrading treatment.
Antigone opposed the dismissal request by pointing out a series of circumstances that had not been duly analysed by the Prosecutor's Office and that would have needed further investigation: the prisoner's particularly fragile state of health on the day the events took place (he had been on hunger and thirst strike for about 6 days and, on the very morning of the events, he had complained of back pains to the extent that when he was taken from his cell he was lying crouched on the ground 'in a foetal position' and shouting 'help help' and, for this reason, he was carried on a stretcher by the doctor; the treatment meted out to the victim after the violence (the detainee, who was already in the precarious state of health just described, was "thrown" into the cell 121 "bleeding and screaming"); the conditions of the cell to which the detainee was taken (the victim had reported that there was no mattress or sheets in the cell where he was taken and that no doctor had visited him, but that they had merely brought him ice "to put on his eye" "[... ] after the beating they took me by weight and threw me inside cell 21 in mode (smooth cell) after which they took off all my clothes, cell 21 was without mattress, pillow, sheets, table, stool, TV, I stayed there for 2 days. "The deprivation of clothing took place for two days, from 3 to 5 August; the victim's statements and the statements of a prison police officer, who recalled that inside the cell Manfredi 'was completely naked', testified to this effect.
The relevance of this circumstance to the violation of Article 3 of the European Convention is highlighted by the same Court of Human Rights in the judgment Cirino Renne v. Italy where the Strasbourg Judges referred to the circumstance of the "deprivation of clothing" as a "further gratuitous act" which entailed "feelings of humiliation and debasement".
References ↑1 The proceedings developed into two different trials. The first one defined by abridged procedure with sentence no. 58 of 17 February 2021 in which ten prison police officers were sentenced for the crime under Article 613 bis of the Criminal Code. The proceeding is not final; the second proceeding defined with ordinary rite with sentence of 9 March 2023 with which five prison police officers were sentenced for the crime referred to in Article 613 bis of the penal code. The grounds of the sentence are to be published. The Antigone Association is a civil party in the second of the two proceedings.
↑2 The Court of Cassation gave the following definition of the concept of 'acting with cruelty': on the subject of torture, the cruelty of the conduct is realised in the presence of 'behaviour exceeding the causal normality, which determines additional suffering in the victim and expresses a particularly reprehensible inner attitude of the perpetrator'. (Cass. 50280/2019 Sec. V)
↑3 As of May 2023, the trial is in the following phase: on 20.04.2022 the preliminary hearing phase was concluded with the committal for trial of the 18 prison police officers accused of torture while an officer also accused of torture decided to proceed with the abbreviated procedure and on 16 June the verdict should be issued.
↑4 The trial is taking place in front of the Court of Bari where the Preliminary Hearings Judge has ordered the indictment and the first hearing is set for 21 June 2023.
↑5 The trial is currently in the trial phase before the Court of Assize of the Court of Santa Maria Capua Vetere. Only three defendants chose to proceed with the abridged trial and the sentence has not yet been pronounced. The aforementioned Supreme Court of Cassation ruling is part of the precautionary phase on the appeal lodged against the order issued by the Court of Freedoms on 27.07.2021.
↑6 The trial is currently in the trial phase before the Court of Monza and involves, among other defendants, 4 prison police officers for injuries caused to a detainee. The Antigone Association is a civil plaintiff.