The Covid 19 outbreak has shed a light on the often forgotten living conditions of prisoners. Italy has historically been known for having negative track record on the quality of life of detainees. The State’s negligent behavior has been sanctioned by the European Court of Human Rights in 2013 in the Torreggiani case but since then little has changed. With overcrowded cells, no hot water and heating in their cells many inmates take their lives to stop the sufferance and frustration that endure day after day. If, as Dostoyevsky said, the degree of civilization of a nation is measured by the condition of their prisons, Italy has something to worry about.
THE TORREGGIANI CASE (Torreggiani & Others v Italy 43517/09 – 08 Jan 2013)
Seven inmates in various Italian prisons brought the case before the European Court of Human Rights claiming that the space allocated to each applicant in their cell amounted to degrading and inhuman treatment and was a breach of Art 3 ECHR. The court, ruling in favor of the applicants, held that imprisonment does not deprive detainees of their convention rights. Under Art 3 authorities have a positive obligation to ensure that each prisoner will be detained in conditions compatible with the respect of human dignity, not subject to conditions that cause them sufferance and that their health and well-being is ensured.
Has Anything Changed since 2013?
Seven years have passed since the Torreggiani sentence and little has changed. In the few months following the ruling, the Italian government granted amnesties for non violent crime offenders which resulted in a significant reduction of the number of detainees. At the same time, the Authority for Prison Management adopted an IT tool known as Detention Space Applicative System to ensure a centralized control that the personal space of each inmate in the cell is no less than 3m2. Gradually, the traditional relationship between inmate and detentive space started to improve with increasing freedom and customization. In particular, the Department of Penal Authority authorized the opening of cells for all low and medium security detainees for at least 8 hours a day. Although such a procedure allowed prisoners to move freely in the corridors and spend time in fellow inmates’ cells, the action was not followed by a structural organization of activities such as educational and professional training aimed at a rehabilitation of the offender.
Despite some gradual steps forward, no central, articulated plan has been implemented to ensure a long term improvement of detainees’ living conditions, which year after year have rapidly deteriorated resulting in a current system with serious overcrowding and routinely breach of human rights. As of March 2019, 60611 people were detained in a penitentiary system which has maximum capacity of 54072. Aside from overcrowding, 35.3% of Italian penitentiary institutions don’t have hot tap water, 7.1% lack functioning heating systems and a staggering 20% is still not compliant with the minimum 3m2 rule of personal space in cells.
On their current state, prisons fail in their rehabilitative purpose. Build with the intention to re-educate and re-integrate the offender in the society, they become a place of sufferance and frustration for the prisoner who inevitably turns to violence. Over the past few years Italy has seen an increase of violent incidents among detainees and towards prison staff.
A more alarming trend is the rise of suicides which reached 143 in 2019 with more than 9000 self inflicted harm incidents. Mental health programs and therapy is absent in most prisons with existing suicide prevention protocols solely imposing isolation and strict surveillance to those at risk.
Domestic and International Legislation on the rights of prisoners
The rights of prisoners in the Italian Constitution, although not explicitly stated, find protection in Art 2 according to which the Italian State recognizes and guarantees fundamental human rights. Similarly, Art 27 (3) prohibits judicial sentences cannot amount to inhuman or degrading treatment. With reference to detainees, the article specifies that the status of prisoner does not deprive an individual from protection of his fundamental human rights. In order words, even during the application of measures restricting the freedom of the individual, personal dignity is protected by virtue of being a fundamental human right.
From a EU law perspective, although the ECHR and its protocols lack specific dispositions in the area of penal detention, Art 3 ECHR legislate on the illegality of inhumane and degrading treatment. Recognized by Art 16 as an inderogable right, the provisions of Art 3 should always be guaranteed and States can not sacrifice Art 3 on the grounds of maintaining public order. Additionally, in 1987 the Council of Europe created the European Convention for Prevention of Torture and inhumane and degrading treatment whose committee acts a control mechanism to ensure the application of Art 3 by all member States .
The principal international human rights documents clearly protect the human rights of prisoners. The International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment both prohibit torture and cruel, inhuman, or degrading treatment or punishment, without exception or derogation. Article 10 of the ICCPR, in addition, mandates that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” It also requires that “the reform and social readaptation of prisoners” be an “essential aim” of imprisonment.
Several additional international documents flesh out the human rights of persons deprived of liberty, providing guidance as to how governments may comply with their international legal obligations. The most comprehensive such guidelines are the United Nations Standard Minimum Rules for the Treatment of Prisoners (known as the Standard Minimum Rules), adopted by the U.N. Economic and Social Council in 1957. It should be noted that although the Standard Minimum Rules are not a treaty, they constitute an authoritative guide to binding treaty standards.
Other documents relevant to an evaluation of prison conditions include the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, the Basic Principles for the Treatment of Prisoners, and, with regard to juvenile prisoners, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the “Beijing Rules”). Like the SMRs, these instruments are binding on governments to the extent that the norms set out in them explicate the broader standards contained in human rights treaties.
These documents clearly reaffirm the tenet that prisoners retain fundamental human rights. As the most recent of these documents, the Basic Principles for the Treatment of Prisoners, declares:
Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.
Endorsing this philosophy in 1992, the United Nations Human Rights Committee explained that states have “a positive obligation toward persons who are particularly vulnerable because of their status as persons deprived of liberty” and stated:
[N]ot only may persons deprived of their liberty not be subjected to [torture or other cruel, inhuman or degrading treatment or punishment], including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the [ICCPR], subject to the restrictions that are unavoidable in a closed environment.
Significantly, the Human Rights Committee has also stressed that the obligation to treat persons deprived of their liberty with dignity and humanity is a fundamental and universally applicable rule, not dependent on the material resources available to the state party.
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