Firm profile
Firm profile


Shortage of water and unpleasant odors, detention is inhumane (Cass. 39679/23)

29 September 2023, Cassazione penale

Poor ventilation and poor sanitary or hygienic conditions in detention violate at 3 ECHR: inhuman and degrading treatment of inmates have to be compensated by the Italian Government. 

(automatic non official machine translation)

Italian Supreme Court

I criminal section

hearing Dec. 20, 2022 (filed Sept. 29, 2023), no. 39679

President Mogini - Rapporteur Filocamo

In fact

1. With the decision in the present case, the Supervisory Court of Turin rejected the complaint filed by the Ministry of Justice against the decision of the Supervisory Magistrate of Cuneo, which had accepted in part (reduction of the sentence by 62 days and €32 in compensation) the request for compensatory remedy filed by D.V.F, pursuant to Art. 35-ter L. July 26, 1975, No. 354 (ord. penit.), for detention deemed inhumane and degrading, thus contrary to Art. 3 EDU Convention in relation to 1. 674 total days of sentence expiation at the Cuneo District House (from (omissis), from (omissis) and from (omissis) to (omissis)), rejecting the application with reference to the imprisonment suffered at the Penitentiary Institutions of [...] and [...]"(omissis) ".

The Supervisory Court justified the decision by pointing out that the detainee had been provided with individual space within the detention room in excess of the tolerable threshold, with a minimum of 3.18 square meters. The court's granting of the request was based on certain critical issues reported by detainee D.V. with respect to the supply of water from wells (the institute is not connected to the municipal aqueduct so, in cases of supply interruptions, he had been provided with two liters of bottled water as a substitute to provide for personal hygiene needs), the affixing of screens to the windows that were not permitted by Article 6, paragraph 2, Presidential Decree no, June 30, 2000, No. 230, (in the absence of demonstrated safety reasons) as well as to the air quality (deemed unpleasant, sometimes intolerable, assessed, however, as not harmful) "polluted" by the presence, near the Institute, of a waste shredding and packaging plant.

The contested order reports all the considerations made by the supervisory magistrate on the points highlighted above, concluding that, in an overall assessment of the negative factors as found, the prison condition suffered by the detainee had constituted a violation of Article 3 of the EDU Convention.

2. The Ministry of Justice, with the patronage of the Avvocatura dello Stato, appeals in cassation, censuring with a single ground of complaint the violation of the law in relation to Article 35-ter L. July 26, 1975, no. 354 (Prison Regulations) with reference to the assessment of the parameters of adequacy of prison conditions.

The appellant Ministry represents that the water supply was always guaranteed by the presence of tanks with attached potabilization plant maintained by a specialized company and that the water, deemed unpalatable, was nevertheless drinkable. In the event of a water supply interruption, which never exceeded 60 minutes, inmates were given two liters of bottled water per day. Again, with respect to the healthfulness of the air, the Ministry states that the waste treatment plant near the Institute was constantly monitored by ARPAC without ever being found to exceed parameters or exceed critical situations that could have caused damage to health. In conclusion, according to the Administration, these were mere inconveniences and not detention conditions that were not compatible with Article 3 of the EDU Convention.

3. The Attorney General, who intervened with written indictment, concluded by requesting the annulment without referral of the contested measure.

Considered in law

1. The appeal is unfounded, therefore, deserving of dismissal.

2. The Tribunal conducted a comprehensive examination of the grievances without underestimating aspects that may be deemed relevant on the overall compliance of the detention condition with Article 3 EDU Convention.

3. This Court has already had occasion to affirm, on the basis of the contents of the case law developed in relation to Article 3 cited above, that where the minimum living space in the collective cell has been available between three and four square meters, "non-compliant" treatment can be ascertained through the detection of other cases of serious inadequacy of the material conditions of the prison facility or in the absence of the treatment proposals. In the decision of the United Sections of this Court, No. 6551 of 2021, "Commisso," this orientation was consolidated and recalling how more negative factors may be relevant for this purpose including "poor ventilation and poor sanitary or hygienic conditions," with the obligation of timely verification of what is attached by the complainant.

4. It should be recalled on the issue at hand, consistent with this interpretative orientation, the content of Sec. 1, no. 15554 of 2019, "Inserra" (relating to a similar issue to the one posed by today's plaintiff) where it was stated that the jurisdictional assessment, with such methodological clarifications, is enriched with complexity, as it is certainly not possible to reduce the identification of inhuman or degrading treatment to the question of the space allocated to movement.

5. In the case of the current applicant, in particular, the inadequacy of the treatment offer had been deduced by virtue of the prolonged lack of drinking water in the cells of the ward where the subject had been confined, combined with environmental factors detrimental to hygiene and health (proximity of the Institute to a waste treatment plant) in addition to the presence of screens on the windows of the detention rooms not permitted by Article 6, paragraph 2, Presidential Decree No. 230 of June 30, 2000, (in the absence of proven security reasons).

These are aspects of undoubted relevance, examined and verified in their historical consistency by the Supervisory Court. In particular, the Tribunal pointed out that the penitentiary institution was not connected to the municipal aqueduct, making use of tanks equipped with a potabilization system, which is subject to continuous maintenance, resulting in interruptions in the supply of water whose potability was certified only in 2009. The contested order adds that water was not continuously supplied to the inmates until 2014 due to its ascertained non-potability and that the two liters of bottled water provided as a replacement could not be considered insufficient for drinking, preparing hot drinks, cooking and brushing one's teeth, as well as attributed relevance to the unpleasant fumes from the nearby waste treatment plant without the need for them to have been found to be harmful to health.

It follows that the contested measure is immune from the censure complained of, finding instead that the Court's assessment of the fact that what the detainee complained of is referable to aspects relevant for the purposes of Article 35-ter ord. pen. is shareable, both because of the prolonged absence of drinking water, and because of the prejudicial environmental factors, verified in fact and not contested by the Administration, which are situations capable of deteriorating, on the one hand, the health of the detainees and, on the other, the sense of humanity that should distinguish detention.

From the considerations now set forth, it follows that the appeal should be dismissed.


Dismisses the appeal.