The seven applicants were detained in Busto Arsizio and Piacenza prisons. Over periods ranging from fourteen to fifty-four months, they had 3 sq. m of personal space each in prison.
Law – Article 3: The severe shortage of space to which the seven applicants had been subjected for periods ranging from fourteen to fifty-four months, which in itself constituted treatment contrary to the Convention, appeared to have been exacerbated by other conditions. The lack of hot water in both establishments over lengthy periods and the inadequate lighting and ventilation in the Piacenza prison cells, while not in themselves amounting to inhuman and degrading treatment, had nevertheless caused the applicants additional suffering. Taking into account also the duration of the applicants’ imprisonment, their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.
Conclusion: violation (unanimously).
Article 46: The violation of the applicants’ right to adequate conditions of detention did not stem from isolated incidents but from a systemic problem arising out of a chronic dysfunction of the Italian prison system which had affected and remained liable to affect a large number of persons. The situation complained of therefore amounted to a practice incompatible with the Convention. Furthermore, several hundred applications against Italy were currently pending before the Court raising the same issue of overcrowding in various Italian prisons, and the numbers continued to rise. In addition, approximately 40% of the persons held in Italian prisons were remand prisoners awaiting trial. The Court pointed in that context to the Recommendations of the Committee of Ministers of the Council of Europe inviting States to encourage prosecutors and judges to make use of alternative measures to detention wherever possible, and to devise their penal policies with a view to reducing recourse to imprisonment, in order, among other objectives, to tackle the problem of the growth in the prison population. Lastly, the only remedy indicated by the respondent Government in the present cases which was capable of improving the conditions of detention complained of, namely an application to the judge responsible for the execution of sentences, was one which, although accessible, was not effective in practice in so far as it did not afford the possibility of putting a rapid end to an individual’s detention in breach of Article 3. Moreover, recent court rulings giving the judge responsible for the execution of sentences the power to order the administrative authorities to pay financial compensation by no means amounted to settled and consistent practice on the part of the national authorities. Consequently, the national authorities had to put in place, within one year, a remedy or combination of remedies with preventive and compensatory effect affording real and effective redress in respect of Convention violations stemming from overcrowding in Italian prisons.
Article 41: sums ranging between EUR 10,600 and EUR 23,500 to each applicant in respect of non-pecuniary damage.
General measures: Respondent State required to provide effective remedies in respect of prison overcrowding
(unofficial automatic translation)
European Court of Human rights
CASE OF TORREGGIANI AND OTHERS v. ITALY
(Application nos. 43517/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10)
8 January 2013
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to formal amendments.
In the case of Torreggiani and Others v. Italy,
The European Court of Human Rights (Second Section), sitting in a Chamber composed of:
Danutė Jočienė, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in chambers on 4 December 2012,
Delivers the following judgment, which was adopted on that date:
1. The case originated in seven applications (nos. 57875/09, 46882/09, 55400/09, 57875/09, 61535/09, 35315/10 and 37818/10) 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 seven persons ("the applicants") (whose details are set out in the list annexed to this judgment).
2. The applicants were represented by the lawyers listed in the annexed list. The Italian Government ("the Government") were represented by their Agent, Ms Spatafora, and by their Co-Agent, Ms P. Accardo.
3. The applicants complained in particular of the conditions in which they had been held in the Busto Arsizio and Piacenza prisons respectively.
4. On 2 November 2010 and 5 January 2011 the applications were communicated to the Government. As permitted by Article 29 § 1 of the Convention, it was further decided that the Chamber would rule simultaneously on the admissibility and merits of the case.
5. On 5 June 2012 the Chamber informed the parties that it considered it appropriate to apply the "pilot judgment" procedure under Article 46 § 1 of the Convention.
6. Both the Government and the applicants submitted written observations on the appropriateness of applying the procedure in question.
I. THE CIRCUMSTANCES OF THE CASE
7. At the time their applications were lodged, the applicants were serving custodial sentences in the Busto Arsizio or Piacenza prisons.
A. The conditions of detention complained of by the applicants
1. The applicants detained in Busto Arsizio prison (applications no. 43517/09, 46882/09 and 55400/09)
8. Mr Torreggiani (application no. 43517/09) was detained in Busto Arsizio prison from 13 November 2006 to 7 March 2011, Mr Bamba (application no. 46882/09) from 20 March 2008 to 23 June 2011 and Mr Biondi (application no. 55400/09) from 29 June 2009 to 21 June 2011. Each of them occupied a 9 m² cell with two other people, and therefore had a personal space of 3 m². In their applications, the applicants further submitted that access to the shower at Busto Arsizio prison was limited because of the shortage of hot water in the establishment.
2. The applicants detained in Piacenza Prison (applications nos. 57875/09, 35315/10, 37818/10 and 61535/09)
9. Mr Sela (application no. 57875/09) was detained in Piacenza from 14 February 2009 to 19 April 2010, Mr El Haili (application no. 35315/10) from 15 February 2008 to 8 July 2010 and Mr Hajjoubi (application no. 37818/10) from 19 October 2009 to 30 March 2011. Mr Ghisoni (application no. 61535/09), who was imprisoned on 13 September 2007, is still being held in this establishment.
10. The four applicants stated that they had occupied 9 m² cells with two other prisoners. They also complained of a lack of hot water in the establishment, which had prevented them from using the shower regularly for several months, and insufficient lighting in the cells because of the metal bars on the windows.
11. According to the Government, the cells occupied by the applicants in Piacenza had an area of 11 m².
B. The orders of the Reggio Emilia Enforcement Court
12. On 10 April 2010 Mr Ghisoni (no. 61535/09) and two other prisoners in Piacenza Prison applied to the Reggio Emilia Enforcement Court, claiming that their conditions of detention were poor owing to overcrowding in Piacenza Prison and alleging a breach of the principle of equal treatment between prisoners, guaranteed by Article 3 of Law no. 354 of 1975 on prison administration.
13. By orders of 16, 20 and 24 August 2010, the magistrate upheld the complaints of the applicant and his fellow inmates. He observed that the persons concerned were occupying cells which had been designed for a single prisoner and which, owing to the overcrowding in Piacenza prison, were now each housing three persons. The judge found that almost all the cells in the prison had a surface area of 9 m² and that during 2010 the prison had housed between 411 and 415 people, whereas it was designed to accommodate 178 prisoners, with a maximum tolerable capacity (capienza tollerabile) of 376 people.
14. Referring to the Sulejmanovic v. Italy judgment (no. 22635/03, 16 July 2009) and the principles of case-law concerning the compatibility between conditions of detention and respect for the rights guaranteed by Article 3 of the Convention, the enforcement judge concluded that the claimants were exposed to inhuman treatment because they had to share cramped cells with two other prisoners and were discriminated against in comparison with prisoners sharing the same type of cell with a single person.
15. The magistrate thus forwarded the complaints of the applicant and the other inmates to the management of Piacenza Prison, the Ministry of Justice and the competent prison administration, so that each could urgently adopt the appropriate measures within the scope of their powers.
16. In February 2011 Mr Ghisoni was transferred to a cell designed for two people.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Prison Administration Act
17. Article 6 of Law no. 354 of 26 July 1975 ("the Prison Administration Act") reads as follows:
"The premises in which prisoners live must be sufficiently spacious and lit by natural or artificial light to enable them to work and read; they must be ventilated, heated when climatic conditions so require and equipped with decent and rational private sanitary facilities. [They] shall be properly maintained and cleaned. Premises where prisoners spend the night shall be individual or collective cells.
Particular care shall be taken in the selection of persons who are placed in collective cells.
Pre-trial detainees shall be allowed to stay in individual cells unless the particular situation of the establishment does not permit this.
Each prisoner (...) shall be provided with the necessary bed linen".
18. Under the terms of article 35 of law no. 354 of 1975, prisoners may address oral or written requests or complaints, even in sealed envelopes, to the sentence enforcement judge; to the director of the prison, as well as to the inspectors, to the director general of the detention and prevention institutes and to the Minister of Justice; to the judicial and health authorities visiting the institute; to the president of the Regional Council and to the Head of State.
19. According to article 69 of the same law, the sentence enforcement judge is responsible for supervising the organisation of the prevention and detention institutes and for informing the Minister (of Justice) of the needs of the various departments, particularly with regard to the implementation of the re-education programme for detainees (paragraph 1). He also ensures that the supervision of remand prisoners is carried out in accordance with the laws and regulations (paragraph 2). He also has the power to prescribe measures to eliminate any violations of the rights of sentenced and interned persons (paragraph 5). The judge rules on the complaint by means of an order, against which the person concerned may appeal to the Court of Cassation.
B. Domestic case law on the possibility for prisoners to seek compensation for poor conditions of detention
20. By order no. 17 of 9 June 2011, the Lecce enforcement judge upheld the complaint of A.S., a prisoner complaining of inhumane conditions of detention due to overcrowding at Lecce prison. He had also claimed compensation for non-material damage.
The judge found that the applicant had shared a cell with two other people that was poorly heated and had no hot water, measuring 11.5 m² including the toilet. In addition, the bed occupied by A.S. was only 50 centimetres from the ceiling. The applicant was obliged to spend 19.5 hours a day on his bed due to the lack of organised social activities outside the cell.
In his order, the sentence enforcement judge found that the conditions in which the applicant was being held were contrary to human dignity and violated both the Italian Prison Administration Act and the standards set by the Council of Europe's CPT and the case law of the European Court of Human Rights. In addition, for the first time in Italy, it ruled that the prison administration had to compensate the prisoner to the tune of EUR 220 for the "existential" damage (danno esistenziale) resulting from detention.
21. On 30 September 2011, the Ministry of Justice appealed to the Supreme Court against the order of the sentence enforcement judge, arguing in particular that the judge did not have jurisdiction to award compensation to prisoners. In a ruling dated 5 June 2012, the Court of Cassation declared the administration's appeal inadmissible on the grounds of lateness, as it had been lodged after the 10-day period provided for by the relevant legal provisions. Consequently, the order of the enforcement judge was res judicata.
22. This case-law of the Lecce enforcement judge, recognising that prisoners are entitled to compensation for the existential damage caused by the conditions of detention, has remained isolated in Italy. Other enforcement judges have in fact considered that it was not within their prerogatives to order the administration to compensate detainees for the harm suffered during detention (see, in this sense, for example, the orders of the Udine and Vercelli enforcement judges of 24 December 2011 and 18 April 2012 respectively).
III. MEASURES TAKEN BY THE STATE TO REMEDY THE PROBLEM OF PRISON OVERCROWDING
23. In 2010, there were 67,961 inmates in Italy's 206 prisons, against a planned maximum capacity of 45,000. The national overcrowding rate was 151%.
24. By decree of 13 January 2010, the President of the Council of Ministers declared a national state of emergency for a period of one year due to overcrowding in Italian prisons.
25. With Order no. 3861 of 19 March 2010, entitled "Urgent civil protection measures due to prison overcrowding", the President of the Council of Ministers appointed a Commissioner delegated to the Ministry of Justice to draw up an intervention plan for prisons ("Piano carceri").
26. On 29 June 2010, a committee consisting of the Minister for Justice, the Minister for Economic Infrastructure and the Head of the Civil Protection Department approved the action plan presented by the Deputy Commissioner. This plan provided for the construction of 11 new prisons and 20 annexes to existing prisons, creating 9,150 additional prison places and recruiting 2,000 new prison police officers. The deadline for completion of the construction work was 31 December 2012.
27. In addition, Law No 199 of 26 November 2010 adopted extraordinary provisions on the enforcement of sentences. This law provides in particular that prison sentences of less than twelve months, even if they represent parts of more severe sentences still to be served, may be served at the convicted person's home or in another public or private facility, with certain exceptions linked to the seriousness of the offences.
This law will remain in force for the time needed to implement the prison intervention plan, but in no case beyond 31 December 2013.
28. The national state of emergency, initially declared until 31 December 2010, has been extended twice. It is currently in force until 31 December 2012.
29. As of 13 April 2012, Italian prisons housed 66,585 inmates, representing an overcrowding rate of 148%.
42% of inmates are awaiting trial and are held in pre-trial detention.
IV. RELEVANT INTERNATIONAL TEXTS
30. The relevant parts of the general reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT") read as follows:
Second General Report (CPT/Inf (92) 3):
" 46. The issue of overcrowding falls directly within the CPT's mandate. All services and activities within a prison will be affected if it has to accommodate more prisoners than it was designed to hold. The overall quality of life in the establishment will be affected, perhaps significantly. Moreover, the degree of overcrowding in a prison, or in a part of it, may be such that it constitutes, in itself, inhuman or degrading treatment.
47. A satisfactory programme of activities (work, education and sport) is of paramount importance to the well-being of prisoners. This applies to all establishments, whether for the enforcement of sentences or for pre-trial detention. The CPT has noted that activities in many remand prisons are extremely limited. The organisation of activity programmes in such establishments, where there is a fairly rapid turnover of prisoners, is not an easy matter. Clearly, there can be no question of individualised treatment programmes of the kind that might be expected in a penal establishment. However, prisoners cannot simply be left to languish for weeks, sometimes months, confined to their cells, even if the material conditions are good. The CPT considers that the aim should be to ensure that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in motivating activities of a varied nature. In establishments for sentenced prisoners, of course, regimes should be of an even higher standard.
48. Outdoor exercise requires specific mention. The requirement that prisoners should be allowed at least one hour's outdoor exercise each day is widely accepted as a fundamental safeguard (preferably as part of a wider programme of activities). The CPT wishes to emphasise that all prisoners without exception (including those subject to solitary confinement as a sanction) should benefit from daily outdoor exercise. It is also clear that outdoor exercise areas should be reasonably spacious and, wherever possible, provide shelter from the weather.
49. Timely access to adequate toilet facilities and the maintenance of good hygienic conditions are essential elements of a humane environment.
In this connection, the CPT must stress that it does not appreciate the practice, observed in some countries, of prisoners having to satisfy their natural needs by using buckets in their cells, which are subsequently emptied at fixed times. Either a toilet should be installed on the cell premises (preferably in a sanitary annexe), or means should be put in place to enable prisoners to leave their cells at any time (including at night) to go to the toilet, without undue delay.
Prisoners should also have regular access to showers or baths. In addition, it is desirable that cells be equipped with running water.
50. The CPT wishes to add that it is particularly concerned when it observes in the same establishment a combination of overcrowding, low activity regimes and inadequate access to toilets or sanitary facilities. The cumulative effect of such conditions can be extremely detrimental to prisoners".
Seventh General Report (CPT/Inf (97) 10)
" 13. As the CPT emphasised in its 2nd General Report, the issue of overcrowding falls directly within the Committee's mandate (cf. CPT/Inf (92) 3, paragraph 46).
For the prisoner, an overcrowded prison means cramped and unsanitary conditions; a constant lack of privacy (even when it comes to satisfying natural needs); limited out-of-cell activities due to a demand that exceeds the staff and infrastructure available; overloaded health services; increased tension and, consequently, more violence between prisoners and between prisoners and staff. This list is far from exhaustive.
On more than one occasion, the CPT has been led to conclude that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention".
31. On 30 September 1999, the Committee of Ministers of the Council of Europe adopted Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation. This Recommendation states in particular the following:
"The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that prison overcrowding and prison population growth constitute a major challenge for prison administrations and the criminal justice system as a whole from the point of view of both human rights and the effective management of prisons;
Considering that the effective management of the prison population depends on certain circumstances such as the overall crime situation, crime-fighting priorities, the range of penalties provided for in legislation, the severity of sentences handed down, the frequency of recourse to community sanctions and measures, the use of pre-trial detention, the efficiency and effectiveness of criminal justice agencies and, in particular, public attitudes to crime and crime-fighting; (...)
Recommends that the governments of the member states :
- take all appropriate measures, when reviewing their legislation and practice relating to prison overcrowding and prison population inflation, with a view to applying the principles set out in the Appendix to this Recommendation;
Appendix to Recommendation No. R (99) 22
I. Basic principles
1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only when the seriousness of the offence would render any other sanction or measure manifestly inadequate.
2. The extension of the prison estate should rather be an exceptional measure, since it is not, as a rule, likely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be adequate overall but is poorly adapted to local needs should strive to achieve a more rational distribution of that capacity.
3. There should be an appropriate range of community sanctions and measures, possibly graduated in severity; prosecutors and judges should be encouraged to use them as widely as possible.
4. Member States should consider the desirability of decriminalising certain types of offences or reclassifying them so that they do not call for custodial sentences.
5. In order to devise coherent action against prison overcrowding and prison inflation, a detailed analysis of the main factors contributing to these phenomena should be carried out. Such an analysis should cover, inter alia, the categories of offences likely to result in long prison sentences, crime-fighting priorities, public attitudes and concerns, and existing sentencing practices.
III. Measures to be implemented before the criminal trial
Avoiding criminal proceedings - Reducing the use of pre-trial detention
10. Appropriate measures should be taken with a view to the full application of the principles set out in Recommendation No. (87) 18 on the simplification of criminal justice, which implies, in particular, that Member States, while taking into account their own constitutional principles or legal tradition, apply the principle of discretionary prosecution (or measures having the same objective) and use simplified procedures and settlements as alternatives to prosecution in appropriate cases, with a view to avoiding full criminal proceedings.
11. The use and duration of pre-trial detention should be reduced to the minimum compatible with the interests of justice. To this end, member states should ensure that their legislation and practice comply with the relevant provisions of the European Convention on Human Rights and the case-law of its supervisory bodies and be guided by the principles set out in Recommendation No. R (80) 11 concerning pre-trial detention, in particular as regards the grounds for ordering pre-trial detention.
12. The widest possible use should be made of alternatives to pre-trial detention, such as an obligation on the suspected person to reside at a specified address, a prohibition on leaving or entering a specified place without authorisation, release on bail, or the supervision and support of a body specified by the judicial authority. In this connection, attention should be paid to the possibilities of monitoring the obligation to remain in a specified place by means of electronic surveillance systems.
13. In order to support the effective and humane use of pre-trial detention, the necessary financial and human resources should be made available and, where necessary, appropriate procedural means and management techniques should be developed.
V. Measures to be implemented after the criminal trial
Implementation of community sanctions and measures - Enforcement of custodial sentences
22. In order to make community sanctions and measures credible alternatives to short-term custodial sentences, it is necessary to ensure their efficient implementation, in particular by:
- putting in place the infrastructure required for the implementation and monitoring of such community sanctions, in particular with a view to reassuring judges and prosecutors of their effectiveness ;
- developing and applying reliable forecasting and risk assessment techniques and supervision strategies to identify the risk of the offender re-offending and to ensure public protection and safety.
23. The development of measures to reduce the actual length of time served should be encouraged, with individualised measures such as conditional release being preferred to collective measures to manage prison overcrowding (collective pardons, amnesties).
24. Parole should be regarded as one of the most effective and constructive measures which not only reduces the length of detention but also contributes significantly to the planned reintegration of the offender into the community.
25. In order to promote and extend the use of conditional release, the best conditions should be created in the community for the support and assistance of the offender and for the supervision of the offender, in particular with a view to persuading the competent judicial or administrative authorities to consider this measure as a valid and responsible option.
26. Effective custodial treatment and post-release supervision and treatment programmes should be designed and implemented in such a way as to facilitate the reintegration of offenders, reduce recidivism, ensure public safety and protection and encourage judges and prosecutors to consider measures to reduce the effective length of the sentence to be served, as well as community sanctions and measures, as constructive and responsible options".
32. The second part of Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules (adopted on 11 January 2006 at the 952nd meeting of the Ministers' Deputies) is devoted to conditions of detention. In its passages relevant to the present case, it reads as follows:
"18.1 Detention premises and, in particular, those intended for the accommodation of prisoners during the night, shall meet the requirements of respect for human dignity and, as far as possible, privacy, and shall meet the minimum health and hygiene requirements, taking into account climatic conditions, in particular as regards floor space, air volume, lighting, heating and ventilation.
18.2 In all buildings where prisoners are required to live, work or meet :
a. windows shall be large enough to enable prisoners to read and work by natural light under normal conditions, and to allow fresh air to enter, unless there is an appropriate air-conditioning system ;
b. artificial light shall conform to recognised technical standards; and
c. an alarm system shall enable prisoners to contact staff immediately.
18.3 National law shall define the minimum conditions required in respect of the matters listed in paragraphs 1 and 2.
18.4 Domestic law shall provide mechanisms to ensure that these minimum requirements are not breached as a result of prison overcrowding.
18.5 Every prisoner shall in principle be accommodated overnight in an individual cell, except where it is considered preferable for the prisoner to share a cell with other prisoners.
18.6 A cell shall only be shared if it is suitable for collective use and shall be occupied by prisoners who are recognised as being fit to share.
18.7 As far as possible prisoners shall be given a choice before being forced to share a cell overnight.
18.8 The decision to place a prisoner in a particular prison or part of a prison shall take into account the need to separate :
a. remand prisoners from convicted prisoners ;
b. male and female prisoners; and
c. young adult prisoners from older prisoners.
18.9 The provisions of paragraph 8 concerning the separation of prisoners may be waived to allow prisoners to participate together in organised activities. However, such groups shall always be separated at night unless the prisoners concerned consent to living together and the prison authorities are satisfied that this is in the best interests of all the prisoners concerned.
18.10 The accommodation of prisoners shall meet the least restrictive security measures consistent with the risk of the prisoners escaping or injuring themselves or others.
I. JOINDER OF THE APPLICATIONS
33. In view of the similarity of the applicants' complaints and the substantive issues raised by the applications, the Court considers it necessary to join them and decides to examine them together in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
34. Invoking Article 3 of the Convention, the applicants submitted that their conditions of detention in the Busto Arsizio and Piacenza prisons amounted to inhuman and degrading treatment. Article 3 of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
35. The Government disagreed.
1. The plea of lack of victim status
36. The Government observed that all the applicants except Mr Ghisoni had been released or transferred to other cells after their applications had been lodged. It was of the opinion that the applicants could no longer claim to be victims of the violation of the Convention which they alleged and submitted that their applications should be dismissed.
37. The applicants concerned objected.
38. The Court reiterates that a decision or measure favourable to the applicant is in principle sufficient to deprive him or her of the status of "victim" only if the national authorities have acknowledged, explicitly or in substance, and subsequently remedied, the violation of the Convention (see, for example, Eckle v. Germany, 15 July 1982, § 69, Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001-X).
39. The applicants complained to the Court that they had been held in the Busto Arsizio and Piacenza prisons for long periods in conditions contrary to the Convention. It is true that, after their respective applications were lodged, the applicants were either released or transferred to other prisons. However, the domestic authorities could not be said to have thereby acknowledged the violations alleged by the applicants and then made reparation for the damage they might have suffered as a result of the situations they described in their applications.
40. The Court concludes that all the applicants can still claim to be "victims" of a violation of their rights under Article 3 of the Convention.
2. The plea of non-exhaustion of domestic remedies
41. The Government argued that domestic remedies had not been exhausted. It maintained that any person detained or interned in Italian prisons could lodge a complaint with the enforcement judge under Articles 35 and 69 of Law no. 354 of 1975. This remedy would be accessible and effective and would make it possible to obtain binding decisions that could remedy any violations of prisoners' rights. In the Government's view, the procedure before the judge responsible for the enforcement of sentences constitutes a fully judicial remedy, at the end of which the authority to which the matter is referred may order the prison administration to take binding measures to improve the conditions of detention of the person concerned.
42. The Government observed that only Mr Ghisoni, the applicant in Case no. 61535/09, had availed himself of that possibility by lodging a complaint with the Reggio Emilia enforcement judge and obtaining a favourable order. In the Government's view, that was proof of the accessibility and effectiveness of the remedy in question. It follows that the applicants who did not avail themselves of that remedy had not exhausted domestic remedies.
43. As to the prison administration's failure to comply with the order of the Reggio Emilia enforcement judge, the Government submitted that Mr Ghisoni had failed to apply to the "domestic judicial authorities" for enforcement of that decision. It therefore considers that Mr Ghisoni's application should also be declared inadmissible for failure to exhaust domestic remedies.
44. The applicants submitted that the Italian system did not provide any means of redress to remedy the overcrowding in Italian prisons and to improve prison conditions.
45. In particular, they alleged that the procedure before the enforcement judge was ineffective. They observed first of all that the remedy in question was not a judicial remedy but an administrative remedy, since the judge's decisions were in no way binding on the prison management. They also maintained that many prisoners had tried to improve their poor prison conditions by lodging complaints with the sentence enforcement judge, but to no avail. Consequently, they consider themselves exempt from the obligation to exhaust this remedy.
46. Mr Ghisoni, for his part, maintained that he had exhausted domestic remedies by lodging a complaint with the Reggio Emilia enforcement judge on the basis of articles 35 and 69 of the Prison Administration Act. His experience was evidence of the ineffectiveness of the remedy indicated by the Government.
He alleges that the order issued by the sentence enforcement judge on 20 August 2010, recognising that prison conditions at Piacenza prison were inhumane and ordering the competent administrative authorities to put in place all the necessary measures to remedy them as a matter of urgency, remained a dead letter for several months. He does not see what other steps he could have taken to obtain prompt execution of the order.
47. The Court reiterates that the rule that domestic remedies must be exhausted is intended to give the Contracting States an opportunity to prevent or remedy alleged violations before they are brought before it (see, among many other authorities, Remli v. France, 23 April 1996, § 33, Reports 1996-II, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). This rule is based on the assumption, which is the subject of Article 13 of the Convention - and with which it has close affinities - that the domestic system provides an effective remedy for the alleged violation (Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).
48. However, the obligation under Article 35 is limited to that of making normal use of remedies that are likely to be effective, adequate and accessible (see, among other authorities, Vernillo v. France, 20 February 1991, § 27, Series A no. 198). In particular, the Convention requires exhaustion only of remedies that are relevant to the violations complained of, available and adequate. They must exist with a sufficient degree of certainty not only in theory but also in practice, failing which they lack the requisite effectiveness and accessibility (Dalia v. France, 19 February 1998, § 38, Reports 1998-I). Moreover, according to the "generally recognised principles of international law", certain special circumstances may relieve the applicant of the obligation to exhaust the domestic remedies available to him. Nor does this rule apply where there is evidence of an administrative practice consisting in the repetition of acts prohibited by the Convention and of official tolerance by the State, so that any proceedings would be futile or ineffective (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, § 52).
49. Lastly, Article 35 § 1 of the Convention provides for a division of the burden of proof. As regards the Government, where they plead non-exhaustion, they must satisfy the Court that the remedy was effective and available both in theory and in practice at the material time, that is to say that it was accessible, was capable of affording the applicant a remedy and had a reasonable prospect of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports 1996-IV; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II).
50. In particular, the Court has already had occasion to indicate that in assessing the effectiveness of remedies in respect of allegations of poor conditions of detention, the decisive question is whether the person concerned can obtain from the domestic courts a direct and appropriate remedy, and not merely indirect protection of his or her rights guaranteed by Article 3 of the Convention (see, among other authorities, Mandić and Jović v. Slovenia, nos. 5774/10 and 5985/10, § 107, 20 October 2011). Thus, a remedy based exclusively on reparation cannot be regarded as sufficient in respect of allegations of conditions of internment or detention allegedly contrary to Article 3, inasmuch as it does not have a "preventive" effect in that it is not capable of preventing the continuation of the alleged violation or enabling the detainees to obtain an improvement in their material conditions of detention (Cenbauer v. Croatia (dec.), no. 73786/01, 5 February 2004; Norbert Sikorski v. Poland, no. 17599/05, § 116, 22 October 2009; Mandić and Jović v. Slovenia, cited above § 116; Parascineti v. Romania, no. 32060/05, § 38, 13 March 2012).
In this sense, for a system for protecting the rights of detainees guaranteed by Article 3 of the Convention to be effective, preventive and compensatory remedies must co-exist in a complementary manner (Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 98, 10 January 2012).
51. In the present case, the Court must determine whether the complaint before the Italian enforcement judge constitutes a remedy which meets the criteria established by it in its case-law. First of all, it notes that the parties do not agree as to the nature of the remedy in question, the Government alleging the fully judicial nature of the proceedings before the enforcement judge, whereas the applicants take the view that, given its merely administrative nature, it is not a remedy to be exhausted. However, the Court considers that this question is not decisive in so far as it has already found that, in certain circumstances, administrative remedies may prove effective - and thus constitute remedies which must be exhausted - in respect of complaints concerning the application of prison regulations (see Norbert Sikorski v. Poland, cited above, § 111).
52. That being so, there remains the question of the effectiveness in practice of the remedy indicated by the respondent Government in the present case. In that regard, the Court notes that, despite the respondent Government's assertion that the decisions handed down by the enforcement judges in the context of the procedure provided for in the Prison Administration Act are binding on the competent administrative authorities, the order of the Reggio Emilia judge of 20 August 2010, which was favourable to Mr Ghisoni and his fellow inmates and entailed the urgent adoption of appropriate measures, remained unimplemented for a long time. It is apparent from the file that the applicant was not transferred to a cell for two persons, thus having a space compatible with European standards, until February 2011. In that connection, the Government merely maintained that the persons concerned should have requested the swift execution of the order from the "domestic judicial authorities", without specifying which authorities.
53. In the Court's view, it is difficult to reconcile this last assertion by the Government with the alleged effectiveness of the complaints procedure before the enforcement judge. It observed that, even supposing that there was an appeal procedure for the enforcement of sentence-enforcement judges' orders, which the Government had in no way demonstrated, it could not be claimed that a prisoner who had obtained a favourable decision would multiply his appeals in order to obtain recognition of his fundamental rights at the level of the prison administration.
54. Moreover, the Court has already observed that the malfunctioning of "preventive" remedies in situations of prison overcrowding is largely dependent on the structural nature of the phenomenon (see Ananyev and Others v. Russia, cited above, § 111). However, it is clear from the files in the present applications, as well as from the reports on the situation in the Italian prison system, which the Government have not called into question before the Court, that the Busto Arsizio and Piacenza prisons are severely overcrowded, as are a large number of Italian prisons, with the result that prison overcrowding in Italy is a structural phenomenon and does not relate exclusively to the particular case of the applicants (see, in particular, Mamedova v. Russia, no. 7064/05, § 56, 1 June 2006; Norbert Sikorski v. Poland, cited above, § 121). In those circumstances, it is easy to imagine that the Italian prison authorities would not be able to enforce the decisions of the enforcement judges and guarantee prisoners conditions of detention that complied with the Convention.
55. In the light of these circumstances, the Court considers that it has not been shown that the remedy indicated by the Government, having regard in particular to the current state of the prison system, is effective in practice, that is to say, that it is capable of preventing the continuation of the alleged violation and ensuring that the applicants' material conditions of detention improve. Consequently, the applicants were not required to exhaust it before bringing their case before the Court.
56. Accordingly, the Court considers that the Government's plea of non-exhaustion should also be rejected. It found that the applications were not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Noting further that they did not raise any other ground of inadmissibility, it therefore declared them admissible.
1. The parties' submissions
57. The applicants complained of the lack of living space in their respective cells. Having all shared 9 m² cells with two other people, they only had 3 m² of personal space. This space, which was already insufficient, was further restricted by the presence of furniture in the cells.
58. In addition, the applicants alleged that there were serious problems with the supply of hot water in the Busto Arsizio and Piacenza prisons. They claimed that the shortage of hot water had for a long time limited access to showers to three times a week. Lastly, the applicants detained in Piacenza complained that heavy metal bars had been placed on the cell windows, preventing air and daylight from entering the premises.
59. The Government opposed the applicants' arguments, maintaining in general terms that the conditions of detention complained of by the applicants did not in any circumstances meet the minimum threshold of severity required by Article 3 of the Convention.
60. As to the Busto Arsizio prison, the Government maintained that the situation was under the control of the authorities, as overcrowding in the prison had not reached a worrying level. It states that as of 8 February 2011, the facility, which is designed to house 297 people, was holding 439 inmates. He acknowledged that a third bed had been added to the cells due to overcrowding at the facility. However, sharing a 9 m² cell with two other people would not constitute inhuman or degrading treatment. Furthermore, the Government did not maintain that the problem of the lack of hot water in the establishment complained of by the applicants had now been resolved thanks to the installation of a new water distribution system.
61. As to the conditions of detention in Piacenza prison, the Government submitted that the maximum capacity of the establishment was 346 persons. According to the Government, however, the prison was holding 412 persons on 11 March 2011. The Government concluded that the overcrowding in that establishment, although real, was not of worrying proportions.
62. According to the Government, the cells in Piacenza prison had an area of 11 m², contrary to the applicants' assertions, and were generally occupied by two people. However, it admitted that a third prisoner had been placed in some of the prison cells for limited periods in order to cope with the increase in the prison population.
63. According to the Government, the applicants had neither proved that they had been given less than 3 m² of personal space nor specified how long they had been kept in the conditions alleged before the Court. Their complaints were therefore not sufficiently substantiated.
64. As to the other treatment alleged by the applicants, the Government stated that the problem of the shortage of hot water in Piacenza prison was linked to a malfunction in the pumping station and had now been resolved by the authorities and that, as a result, it was now possible to have access to a shower every day. Lastly, the Government maintains that inmates at Piacenza prison spend four hours a day outside their cells and devote a further two hours to social activities.
2. Principles established in the Court's case-law
65. The Court notes that measures involving deprivation of liberty usually entail certain disadvantages for a prisoner. However, it points out that imprisonment does not deprive a prisoner of the benefit of the rights guaranteed by the Convention. On the contrary, in certain cases the person imprisoned may need greater protection because of the vulnerability of his situation and because he is entirely under the responsibility of the State. In this context, Article 3 imposes a positive obligation on the authorities to ensure that any prisoner is held in conditions which are 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 which 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 (Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI; Norbert Sikorski v. Poland, cited above § 131).
66. As regards the conditions of detention, the Court takes into account their cumulative effects as well as the applicant's specific allegations (Dougoz v. Greece, no. 40907/98, ECHR 2001-II). In particular, the length of time an individual has been detained in the conditions complained of is an important factor to consider (Alver v. Estonia, no. 64812/01, 8 November 2005).
67. Where prison overcrowding reaches a certain level, the lack of space in a prison establishment may be the central factor to be taken into account in assessing whether a given situation complies with Article 3 (see, to that effect, Karalevičius v. Lithuania, no. 53254/99, 7 April 2005).
68. Thus, having been confronted with cases of severe overcrowding, the Court has held that this factor alone is sufficient to conclude that there has been a violation of Article 3 of the Convention. As a general rule, although the space considered desirable by the CPT for collective cells was 4 m², there were cases where the personal space granted to an applicant was less than 3 m² (Kantyrev v. Russia, no. 37213/02, §§ 50-51, 21 June 2007; Andrei Frolov v. Russia, no. 205/02, §§ 47-49, 29 March 2007; Kadikis v. Latvia, no. 62393/00, § 55, 4 May 2006; Sulejmanovic v. Italy, no. 22635/03, § 43, 16 July 2009).
69. On the other hand, in cases where overcrowding was not so significant as to raise a problem in itself under Article 3, the Court has noted that other aspects of the conditions of detention were relevant to the assessment of compliance with that provision. These include the possibility of private use of the toilet, the availability of ventilation, access to natural light and air, the quality of the heating and compliance with basic sanitary requirements (see also the elements emerging from the European Prison Rules adopted by the Committee of Ministers, cited in paragraph 32 above). Thus, even in cases where each prisoner had 3 to 4 m² at his disposal, the Court has found a violation of Article 3 where the lack of space was accompanied by a lack of ventilation and light (Moisseiev v. Russia, no. 62936/00, 9 October 2008; see also Vlassov v. Russia, no. 78146/01, § 84, 12 June 2008; Babushkin v. Russia, no. 67253/01, § 44, 18 October 2007); limited access to outdoor exercise (István Gábor Kovács v. Hungary, no. 15707/10, § 26, 17 January 2012) or a total lack of privacy in the cells (see, mutatis mutandis, Belevitskiy v. Russia, no. 72967/01, §§ 73-79, 1 March 2007; Khudoyorov v. Russia, no. 6847/02, §§ 106-107, ECHR 2005-X (extracts); and Novoselov v. Russia, no. 66460/01, §§ 32 and 40-43, 2 June 2005).
3. Application of the above principles to the present cases
70. The Court observes first of all that the Government have not disputed that Mr Torreggiani, Mr Biondi and Mr Bamba occupied 9 m² cells, each with two other persons, throughout their detention in Busto Arsizio prison.
71. On the other hand, the parties' versions differ as to the size of the cells occupied by the applicants detained in Piacenza prison and the number of occupants of those cells. Each of the five applicants concerned claimed that they shared cells measuring 9 m² with two other persons, whereas the Government maintained that the cells in question measured 11 m² and were as a rule occupied by two persons. The Court further notes that the Government did not provide any documents concerning the applicants concerned or any information concerning the actual dimensions of the cells occupied by them. In its view, it was for the applicants to prove the reality of their assertions concerning the personal space available to them and the duration of the treatment alleged before the Court.
72. Sensitive to the particular vulnerability of persons under the exclusive control of State agents, such as detainees, the Court reiterates that the Convention procedure does not always lend itself to a rigorous application of the principle affirmanti incumbit probatio (the burden of proof lies with the person making the assertion) because, inevitably, the respondent Government are sometimes the only ones to have access to information that might confirm or refute the applicant's assertions (Khoudoyorov v. Russia, no. 6847/02, § 113, ECHR 2005-X (extracts); and Benediktov v. Russia, no. 106/02, § 34, 10 May 2007; Brânduşe v. Romania, no. 6586/03, § 48, 7 April 2009; Ananyev and Others v. Russia, cited above, § 123). It follows that the mere fact that the Government's version contradicted that provided by the applicant could not, in the absence of any relevant document or explanation from the Government, lead the Court to dismiss the applicant's allegations as unsubstantiated (Ogică v. Romania, no. 24708/03, § 43, 27 May 2010).
73. Accordingly, in so far as the Government have not submitted to the Court any relevant information capable of substantiating their assertions, the Court will examine the question of the applicants' conditions of detention on the basis of the allegations of the persons concerned and in the light of all the information in its possession.
74. In that regard, the Court notes that the versions of the applicants detained in Piacenza are unanimous as to the size of their cells. Moreover, the fact that the majority of the prison's cells measure 9 m² is confirmed by the orders of the Reggio Emilia enforcement judge (see paragraph 11 above). As to the number of persons accommodated in the cells, the Government did not submit any relevant documents from the prison registers, even though it was the only party to have access to such information, although it acknowledged that the overcrowding situation at Piacenza Prison had made it necessary to place a third person in some of the prison's cells.
75. In the absence of any documentary evidence to the contrary and in view of the widespread overcrowding at Piacenza Prison, the Court has no reason to doubt the allegations of Mr Sela, Mr Ghisoni, Mr Hajjoubi and Mr Haili that they shared their cells with two other persons, thus having, like Mr Torreggiani, Mr Bamba and Mr Biondi (see paragraph 70 above), an individual living space of 3 m². It notes that this space was further restricted by the presence of furniture in the cells.
76. In the light of the foregoing, the Court considers that the applicants were not provided with a living space that complied with the criteria it has found acceptable in its case-law. It wishes to recall once again in this context that the standard for living space in collective cells recommended by the CPT is four square metres (see Ananyev and Others, cited above, §§ 144 and 145).
77. The Court next observes that the severe lack of space from which the seven applicants suffered for periods ranging from fourteen to fifty-four months (see paragraphs 6 and 7 above), which in itself amounts to treatment contrary to the Convention, appears to have been further aggravated by other treatment alleged by the applicants. The lack of hot water for long periods in both establishments, which was acknowledged by the Government, and the inadequate lighting and ventilation in the cells in Piacenza prison, on which the Government did not comment, did not fail to cause the applicants additional suffering, although they did not in themselves constitute inhuman and degrading treatment.
78. Although the Court accepts that in the instant case there is no indication that there was any intention to humiliate or demean the applicants, the absence of such an aim cannot rule out a finding of a violation of Article 3 (see, among other authorities, Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III). The Court considers that the conditions of detention in issue, having regard also to the length of the applicants' imprisonment, subjected them to an ordeal of an intensity which exceeded the unavoidable level of suffering inherent in detention.
79. There had therefore been a violation of Article 3 of the Convention.
III. APPLICATION OF ARTICLE 46 OF THE CONVENTION
80. 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".
A. Arguments of the parties
81. The Government did not object to the application of the pilot judgment procedure provided for in Article 46 of the Convention, while pointing out that the Italian authorities had introduced a series of important measures aimed at resolving the problem of prison overcrowding. He urged the Court to take account of the efforts made by the Italian State.
82. The applicants alleged the existence of a structural problem in Italy and declared themselves in favour of the application of the procedure in question. Only Mr Torreggiani (application no. 43517/09) opposed the application of the pilot judgment procedure, on the grounds that he did not accept that his case should receive treatment similar to that of other applicants.
B. The Court's assessment
1. Relevant general principles
83. The Court reiterates that, as interpreted in the light of Article 1 of the Convention, Article 46 creates a legal obligation on the respondent State to take, under the supervision of the Committee of Ministers, such general and/or individual measures as are necessary to safeguard the applicant's right which the Court has found to have been violated. Such measures must also be taken in respect of other persons in the same situation as the applicant, as the State is expected to put an end to the problems which gave rise to the Court's findings (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 134, 4 December 2008).
84. In order to facilitate effective implementation of its judgments in accordance with the above principle, the Court may adopt a pilot-judgment procedure enabling it to highlight clearly in its judgment the existence of structural problems giving rise to violations and to indicate the specific measures or actions that the respondent State will have to take in order to remedy them (Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 231-239 and its operative part, ECHR 2006-VIII, and Broniowski v. Poland [GC], no. 31443/96, §§ 189-194 and its operative part, ECHR 2004-V). When adopting such an approach, however, it takes due account of the respective powers of the Convention organs: under Article 46 § 2 of the Convention, it is for the Committee of Ministers to assess the implementation of individual or general measures taken in execution of the Court's judgment (see, mutatis mutandis, Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, § 42, ECHR 2005-IX).
85. Another important aim of the pilot judgment procedure is to encourage the respondent State to find, at national level, a solution to the numerous individual cases arising from the same structural problem, thereby giving effect to the principle of subsidiarity which underlies the Convention system (Bourdov v. Russia (no. 2), no. 33509/04, § 127, ECHR 2009). Indeed, the Court does not necessarily perform its task to the best of its ability, which, under Article 19 of the Convention, is to "ensure the observance of the engagements undertaken by the High Contracting Parties under ... the Convention and the Protocols thereto", by repeating the same conclusions in a large number of cases (ibid.).
86. The purpose of the pilot judgment procedure is to facilitate the most rapid and effective resolution of a systemic malfunction affecting the protection of the Convention right at issue in the domestic legal order (Wolkenberg and Others v. Poland (dec.), no. 50003/99, § 34, ECHR 2007 (extracts)). While the main aim of the respondent State's action must be to remedy these shortcomings and to establish, where appropriate, effective domestic remedies for reporting violations, it may also include the adoption of ad hoc solutions such as amicable settlements with the applicants or unilateral offers of compensation, in accordance with the requirements of the Convention (see Bourdov (no. 2), cited above, § 127).
2. Application of the above-mentioned principles in the present case
(a) The existence of a situation incompatible with the Convention requiring application of the pilot judgment procedure in the present case
87. The Court has just observed that prison overcrowding in Italy does not exclusively concern the applicants' cases (see paragraph 54 above). In particular, it notes that the structural and systemic nature of prison overcrowding in Italy is clear from the statistical data referred to above and from the terms of the declaration of a state of emergency at national level issued by the President of the Italian Council of Ministers in 2010 (see paragraphs 23-29 above).
88. Taken together, these facts show that the violation of the applicants' right to adequate conditions of detention was not the result of isolated incidents but stemmed from a systemic problem resulting from a chronic malfunctioning of the Italian prison system which had affected and was likely to continue to affect many people (see, mutatis mutandis, Broniowski v. Poland, cited above, § 189). In the Court's view, the situation found in the instant case therefore constituted a practice incompatible with the Convention (see Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999-V; and Bourdov (no. 2), cited above, § 135).
89. Moreover, the structural nature of the problem identified in the present cases is confirmed by the fact that several hundred applications against Italy raising a problem of the compatibility with Article 3 of the Convention of inadequate conditions of detention linked to prison overcrowding in various Italian prisons are currently pending before the Court. The number of applications of this kind is constantly increasing.
90. In accordance with the criteria laid down in its case-law, the Court decided to apply the pilot judgment procedure in the present case, having regard to the growing number of persons potentially concerned in Italy and the judgments of violation to which the applications in question might give rise (Maria Atanasiu and Others v. Romania, nos. 30767/05 and 33800/06, §§ 217-218, 12 October 2010). It also noted the urgent need to provide the persons concerned with appropriate redress at national level (see Burdov (no. 2), cited above, §§ 129-130).
b) General measures
91. The Court reiterates that its judgments are essentially declaratory in nature and that it is in principle for the respondent State to choose, under the supervision of the Committee of Ministers, the means of discharging its legal obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above, § 249).
92. It observes that the Italian State has recently taken measures likely to help reduce the phenomenon of overcrowding in prisons and its consequences. It welcomes the steps taken by the national authorities and can only encourage the Italian State to continue its efforts.
However, despite the legislative and logistical efforts made by Italy in 2010, the national overcrowding rate remained very high in April 2012 (having risen from 151% in 2010 to 148% in 2012). It observes that this mixed record is all the more worrying in that the emergency response plan drawn up by the national authorities is of limited duration, given that the construction of new prisons is scheduled to be completed by the end of 2012 and that the provisions on the enforcement of sentences, which are of an extraordinary nature, are applicable only until the end of 2013 (see paragraph 27 above).
93. The Court is aware that consistent and sustained efforts over the long term are needed to resolve the structural problem of prison overcrowding. However, it reiterates that, in view of the non-derogable nature of the right protected by Article 3 of the Convention, the State is under an obligation to organise its prison system in such a way that the dignity of prisoners is respected (see Mamedova v. Russia, no. 7064/05, § 63, 1 June 2006).
94. In particular, where the State is unable to guarantee every prisoner conditions of detention which comply with Article 3 of the Convention, the Court encourages it to act in such a way as to reduce the number of persons imprisoned, in particular by applying more non-custodial punitive measures (see Norbert Sikorski, cited above, § 158) and by reducing to a minimum the use of pre-trial detention (see, among other authorities, Ananyev and Others, cited above, § 197).
In the latter connection, the Court is struck by the fact that approximately 40% of the inmates of Italian prisons are persons remanded in custody pending trial (see paragraph 29 above).
95. It is not for the Court to indicate to States provisions concerning their penal policies and the organisation of their prison systems. These processes raise a number of complex legal and practical issues which, in principle, go beyond the Court's judicial function. Nevertheless, it wishes to recall in this context the recommendations of the Committee of Ministers of the Council of Europe inviting States to encourage prosecutors and judges to make the widest possible use of alternatives to detention and to redirect their penal policy towards less recourse to imprisonment with the aim, inter alia, of solving the problem of the growing prison population (see, in particular, Committee of Ministers Recommendations Rec(99)22 and Rec(2006)13).
96. With regard to the domestic remedy or remedies to be adopted to deal with the systemic problem identified in the present case, the Court reiterates that, in matters of prison conditions, "preventive" and "compensatory" remedies must co-exist in a complementary manner. Thus, where an applicant is detained in conditions contrary to Article 3 of the Convention, the best possible remedy is the prompt cessation of the violation of the right to be free from inhuman and degrading treatment. Moreover, any person who has suffered detention that violates his or her dignity must be able to obtain redress for the violation suffered (see Benediktov v. Russia, cited above, § 29; and Ananyev and Others, cited above, §§ 97-98 and 210-240).
97. The Court observes that it found that the only remedy indicated by the respondent Government in the present cases that was likely to improve the conditions of detention complained of, namely a complaint to the enforcement judge under sections 35 and 69 of the Prison Administration Act, is a remedy which, although accessible, is not effective in practice, inasmuch as it does not make it possible to put an early end to imprisonment in conditions contrary to Article 3 of the Convention (see paragraph 55 above). Secondly, the Government had not demonstrated the existence of a remedy which would enable persons who had been imprisoned in conditions which had violated their dignity to obtain any form of reparation for the violation they had suffered. In that connection, it observed that the recent case-law conferring on the enforcement judge the power to order the administration to pay pecuniary compensation was far from constituting an established and consistent practice of the national authorities (see paragraphs 20-22 above).
98. The Court does not need to specify how best to introduce the necessary domestic remedies (see Hutten-Czapska, cited above, § 239). The State may either amend existing remedies or create new ones so that violations of Convention rights can be remedied in a genuinely effective manner (Xenides-Arestis v. Turkey, no. 46347/99, § 40, 22 December 2005). It is also incumbent on the State party, under the supervision of the Committee of Ministers, to ensure that the newly established remedy or remedies comply, both in theory and in practice, with the requirements of the Convention.
99. It concludes that the national authorities must without delay put in place a remedy or combination of remedies that will have preventive and compensatory effects and genuinely guarantee effective redress for violations of the Convention resulting from prison overcrowding in Italy. Such remedy or remedies must be in conformity with the principles of the Convention, as recalled inter alia in the present judgment (see, inter alia, paragraphs 50 and 95 above), and must be put in place within one year of the date on which the judgment becomes final (see, by way of comparison, Xenides-Arestis, cited above, § 40, and paragraph 5 of the operative part).
c) Procedure to be followed in similar cases
100. The Court reiterates that it may rule in the pilot judgment on the procedure to be followed in examining all similar cases (see, mutatis mutandis, Broniowski, cited above, § 198; and Xenides-Arestis, cited above, § 50).
101. In that connection, the Court decides that, pending the adoption by the domestic authorities of the necessary measures at national level, consideration of the outstanding applications concerning prison overcrowding in Italy shall be deferred for a period of one year from the date on which this judgment becomes final. This is without prejudice to the Court's power, at any time, to declare a case of this kind inadmissible or to strike it out of its list of cases following an amicable settlement between the parties or the resolution of the dispute by other means, in accordance with Articles 37 and 39 of the Convention. On the other hand, as regards applications already communicated to the respondent Government, the Court will be able to continue examining them under the normal procedure.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
102. 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 allows only partial reparation to be made for the consequences of that violation, the Court shall, if necessary, afford just satisfaction to the injured party".
103. The applicants claimed the following sums in respect of the non-pecuniary damage they had allegedly suffered.
Mr Torreggiani claimed EUR 10,600 for 54 months' detention in poor conditions; Mr Bamba, who had been detained for 39 months, deferred to the Court's wisdom; Mr Biondi claimed EUR 15,000 for 24 months' detention; Mr Sela, Mr El Haili and Mr Hajjoubi each claimed EUR 15,000 for periods of 14, 39 and 16 months respectively; Mr Ghisoni claimed compensation of EUR 30,000 for a period of 17 months.
104. The Government opposed these claims.
105. The Court considers that the applicants have suffered definite non-pecuniary damage. It also considers that the length of time they spent in detention in poor conditions should be taken into account in determining the amount of damages to be awarded to them in this respect. Ruling on an equitable basis, as required by Article 41 of the Convention, it considered it appropriate to award Mr Torreggiani, Mr Biondi and Mr El Haili the sums they claimed in respect of non-pecuniary damage. It also decided to award EUR 23 500 to Mr Bamba, EUR 11 000 to Mr Sela, EUR 12 000 to Mr Hajjoubi and EUR 12 500 to Mr Ghisoni in respect of the same.
B. Costs and expenses
106. The applicants also sought reimbursement of the costs and expenses of the proceedings before the Court. Only Mr Sela, Mr El Haili, Mr Hajjoubi and Mr Ghisoni provided documentary evidence in support of their claims. They claim, respectively, EUR 16 474, EUR 5 491, EUR 5 491 and EUR 6 867.
107. The Government opposed those claims.
108. 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, and having regard to the documents in its possession and its case-law, the Court considers it reasonable to award Mr Sela, Mr El Haili, Mr Hajjoubi and Mr Ghisoni the sum of EUR 1,500 each in respect of the costs of the proceedings before it. On the other hand, the Court decided to reject the claims of the other applicants, who had been authorised to represent themselves before it and who had not produced any documentary evidence in support of their claims.
C. Default interest
109. The Court considers it appropriate to base the rate of default interest on the marginal lending rate of the European Central Bank plus three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 3 of the Convention;
4. Holds that the respondent State shall, within one year of the date on which this judgment becomes final under Article 44 § 2 of the Convention, establish an effective domestic remedy or remedies capable of providing adequate and sufficient redress in cases of prison overcrowding, in accordance with the principles of the Convention as established in the Court's case-law;
5. Holds that, pending the adoption of the above measures, the Court shall, for a period of one year from the date on which this judgment becomes final, adjourn the proceedings in all outstanding cases having as their sole object prison overcrowding in Italy, while reserving the right at any time to declare any such case inadmissible or to strike it out of its list of cases following amicable agreement between the parties or settlement of the dispute by other means, in accordance with Articles 37 and 39 of the Convention;
(a) that the respondent State shall pay the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following sums :
(i) EUR 10,600 (ten thousand six hundred euros) to Mr Torreggiani; EUR 23,500 (twenty-three thousand five hundred euos) to Mr Bamba; EUR 15,000 (fifteen thousand euros) to Mr Biondi; EUR 11,000 (eleven thousand euros) to Mr. EUR 15,000 (fifteen thousand euros) to Mr El Haili; EUR 12,000 (twelve thousand euros) to Mr Hajjoubi; EUR 12,500 (twelve thousand five hundred euros) to Mr Ghisoni, plus any amount that may be due by way of tax, for non-material damage;
(ii) EUR 1 500 (one thousand five hundred euros) each to Mr Sela, Mr El Haili, Mr Hajjoubi and Mr Ghisoni, plus any amount that may be payable by the applicants by way of tax, for costs and expenses;
(b) from the expiry of that period until payment, simple interest shall be charged on those amounts at a rate equal to that of the marginal lending facility of the European Central Bank applicable during that period, plus three percentage points;
7. Dismisses the remainder of the claim for just satisfaction.
Done in French, then communicated in writing on 8 January 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Procedure.
Stanley Naismith Danutė Jočienė
Attached to this judgment, pursuant to Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, is the separate opinion of Judge Jočienė.
TABLE OF CASES
First name and surname of applicant
date of birth
First name and surname of representative
The applicant was authorised to represent himself before the Court.
The applicant was authorised to represent himself before the Court.
Raoul Riccardo BIONDI
The applicant was authorised to represent himself before the Court.
Me Flavia Urciuoli
Lawyer Patrizia Rodi
Mohamed EL HAILI
Attorney Giuseppe Rossodivita
Mr Giuseppe Rossodivita
CONCURRING OPINION OF JUDGE JOČIENĖ
In the case of Sulejmanovic v. Italy (no. 22635/03, judgment of 16 July 2009), I voted against the violation of Article 3 of the Convention for the reasons given in Judge Zagrebelsky's dissenting opinion, with which I concurred.
From the date of publication of the Sulejmanovic judgment, the Court received an increasing number of applications concerning overcrowding in Italian prisons. The Italian authorities themselves clearly recognised at national level (§ 24 of the judgment) this structural problem in Italian prisons and envisaged concrete and effective measures in 2010 to remedy the problem of prison overcrowding (§§ 23-29 of the judgment). In addition, a state of emergency had been declared at national level and had already been extended twice (§ 28 of the judgment). The Italian State's political commitments are very important in order to draw up an action plan and ultimately resolve the problem of overcrowding in Italian prisons.
Secondly, the sentence enforcement judge also very clearly recognised the problem of the situation in the prisons - the judge concluded that the applicants were exposed to inhumane treatment because they had to share cramped cells with two other inmates, and that they were discriminated against compared to inmates sharing the same type of cell with just one person ; it is clear that, in reality, the living space in collective cells recommended by the CPT was not respected in the applicants' case (§ 14, §§ 74 and 76 of the judgment).
These are the two main reasons that led me to change my opinion and vote with the majority in this case, in which the Court concludes that there has been a violation of Article 3 of the Convention and indicates the general measures to be taken by the Italian authorities to resolve the structural problem of overcrowding in Italian prisons.