The never-ending debate on the ‘Article 41bis’ system under the Penitentiary Act”
Dr Cristiano d’Orsi
Dr D’Orsi is a Lecturer and Senior Research Fellow at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg (South Africa). He holds a Ph.D. in International Law from the Graduate Institute of International and Developing Studies in Geneva (Switzerland). In addition, Cristiano did postdoctoral studies at the University of Michigan Law School (Hugo Grotius Fellow, USA) and at the Centre for Human Rights, University of Pretoria (South Africa). Cristiano’s research interests mainly focus on the legal protection of asylum-seekers, refugees, migrants and IDPs and on Human Rights Law. Dr Cristiano d’Orsi is an Italian citizen and South African permanent resident.
Introduction
On 12 January 2023, a visit of four parliamentarians of the Italian Democratic Party (PD) to the prisoner Alfredo Cospito has sparked once again both at the political and public opinion level, the debate over the ‘hard prison regime’ in Italy. Alfredo Cospito is an anarchist who has been condemned to 10 years and 8 months for the kneecapping of Roberto Adinolfi, CEO of Ansaldo Nucleare, crimes dating back to 7 May 2012. In the meantime, however, he has also received a new 20-year sentence for having led the attack on the Carabinieri school of Fossano (Cuneo), which happened in June 2006 (no death registered) and for leading the Informal Anarchist Federation (IAF), for which he is accused of conspiracy to commit terrorism. Yet, the 20-year sentence given on appeal could be commuted into a life sentence because the chief prosecutor appealed to the Supreme Court, as according to him, the crime was an attempt not of an ordinary massacre, but of a ‘political massacre’.
On 20 October 2022, Mr Cospito began a hunger strike against his incarceration under the Article 41bis regime. By late February 2023, he had reached over 130 days without food. For this reason, on 1 February, the Italian branch of Amnesty International submitted an appeal based on violations of Mr Cospito’s human rights, which also requested the revocation of the “hard prison regime” imposed on him. The Italian Corte di Cassazione (Supreme Court) initially rejected Mr Cospito’s appeal against his prison conditions but then set a hearing date for 24 February 2023, following which it reaffirmed the strict prison regime for Mr Cospito.
What is the ‘Hard Prison Regime’ in Italy under Article 41bis Penitentiary Act?
In Italian law, Article 41bis of the Italian Penitentiary Act/Law no 354 of 26 July 1975, also known as ‘carcere duro’ (‘hard prison regime’), is a provision that allows the Minister of Justice or the Minister of the Interior to suspend certain prison regulations. Currently, in Italian prisons, there are 728 convicts under this prison regime (716 men and 12 women), representing 1.3% of the entire number of detained persons in the country (that amounts to 56,000 persons).
Article 41bis was first introduced in 1975 but it only applied to situations of emergency or revolt within penitentiary institutions. In August 1992 it was extended to Mafia associates with the Anti-Mafia Law ‘Martelli-Scotti’ (being the names of the two Ministers that proposed the law) which allowed the Ministry of Justice to suspend the regular treatment provided by the penitentiary system in case the detainee was part of a Mafia-type association.
Under the 41bis regime, upon arrest, the detainee is transferred to a penitentiary, which is specifically devoted to the treatment of offenders who are put under the hard prison regime and logistically separated from the other sections of the prison. The detainees are registered, undressed and deprived of their personal belongings, searched and assigned some standardized clothes and basic objects (for personal care). The detainee is subsequently visited by a doctor and (if requested) by a counsellor, to be then accompanied into solitary confinement. Other restrictions of the 41bis regime include limited yard time in small groups and one short monthly visit with family members, separated by a glass wall plus several other bans, such as, for example, the ban to receive books and magazines, because books and magazines, that come from outside the prison, can contain some coded messages in it. The final goal of these measures is to prevent these people from commanding new criminal activities from their confinement.
Currently, the hard prison regime is used for people condemned for particular crimes: Mafia-type association but also drug trafficking, homicide, aggravated robbery and extortion, kidnapping, terrorism, and attempting to subvert the constitutional system.
The first paragraph of Article 41bis provides for the application of more restrictive measures and for the suspension of the application of the usual treatment of detainees for a specified period established by the Minister of Justice and in the case of exceptional damage to the internal security of the institution. This is normally the case of internal uprisings or other situations of serious emergency. Conversely, the abovementioned measures to be applied to detainees under the hard prison regime are listed in paragraph 4 of the same Article 41bis.
Article 41bis and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
Over the years, several international supervisory bodies have assessed the 41bis prison regime. For example, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) adopted several recommendations on this subject. In January 2020, the CPT, after visiting several Italian prisons in March 2019 (including the one in Opera, near Milan, where Mr Cospito is detained) published a report on the conditions of detainees in the visited prisons. In the report, the CPT called upon the Italian authorities to engage in a “serious reflection on the current configuration of the “41bis” regime”, for example, by providing convicts throughout the prison system with a wider range of activities and increasing visiting entitlements. This should be done also in light of Article 27(3) of the Italian Constitution stipulating that “(p)unishments may not be inhuman and shall aim at re-educating the convicted. The death penalty is prohibited” (article amended by Constitutional Amendment Law no. 1 of 2 October 2007). These views of the CPT have not been different from those formulated in the earlier 2017 Report where the CPT, inter alia, recommended that steps be taken to ensure that all prisoners subjected to the hard prison regime were, for example, allowed to make at least one telephone call every month, notwithstanding the fact that they receive a visit during the same month.
The response by the Italian Government to this recommendation was that the National Antimafia Directorate adopts these kinds of decisions on Article 41bis, after an initial activity aimed at collecting and processing the information provided by the competent District Antimafia Directorate, by other law enforcement agencies and investigation bodies. The consultation with those actors continues even after the application of Article 41bis and leads to the revocation of the special regime when the prerequisites cease to exist.
To corroborate its point of view that keeping in force Article 41bis is necessary to fight organized crime, the Italian Government also added that “(t)he mafia organizations are long-lasting “enterprises” tending at following the structural changes of the communities where they grow. It is not sufficient to arrest the bosses of the gangs and their accessories, but it is necessary to keep making a prevention work also inside our prisons” (Ibid, pages 21-22).
Article 41bis and the European Court of Human Rights (ECtHR)
In October 2019, The Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg rejected a request for referral under Article 43 of the European Convention on Human Rights (Convention or ECHR) by Italy, making the 13 June 2019 decision in Marcello Viola v. Italy a final judgment (full judgment available only in French).
The ECtHR has decided that an ‘irreducible life sentence’ according to Article 41bis in conjunction with Article 22 of the Italian Penal Code (‘Life sentence’) breaches the Convention. More specifically, the ECtHR established a violation of Article 3 ECHR (‘Prohibition of torture, inhuman or degrading treatment or punishment’), affirming that “[I]t would be incompatible with human dignity […] to deprive persons of their freedom without striving towards their rehabilitation and providing them with the chance to regain that freedom at some future date”.
At the same time, the ECtHR acknowledged that Contracting States enjoy “a wide margin of appreciation in deciding on the appropriate length of prison sentences, and the fact that a life sentence might in practice be served in full did not mean that it was irreducible. Consequently, the possibility of review of life sentences entailed the possibility for the convicted person to apply for release but not necessarily to be released if he or she continued to pose a danger to society”. Finally, the ECtHR considered that the life sentence imposed on Mr Viola “restricted his prospects for release and the possibility of review of his sentence to an excessive degree”. Yet, the Court noted the sensitive historical framework in which the Article 41bis prison regime was adopted, stating: “The prison reform which had given rise to the regime in issue had been adopted in 1992, in the context of an emergency following an episode that had marked Italy deeply” (namely the assassinations of the Anti-Mafia judges Giovanni Falcone and Paolo Borsellino) (para 130 of the original judgement in French: translation by the author).
This was not the first time that the ECtHR has dealt with the Article 41bis prison regime. In the 2007 Asciutto v. Italy case, the ECtHR recognized violations of Article 6(1) ECHR (‘Right to a fair trial’) and Article 8 ECHR (‘Right to respect for private and family life’). In this case, inter alia, the applicant complained of delays in the examination of his appeals against ministerial decisions and a violation of his right to respect for his correspondence. Similarly, the ECtHR recognized breaches of Articles 6(1) and 8 ECHR in the 2009 Enea v. Italy case.
Additionally, in the 2018 Provenzano v. Italy case, the Court decided that former Cosa Nostra boss Mr Provenzano was subjected to inhuman treatment (para 151). The Court established a violation of Article 3 of the Convention because of the (useless, given the health conditions of the convicted) renewed application of the special prison regime on 23 March 2016. The Court accepted the locus standi of the applicant’s son, Angelo Provenzano, to pursue the application in his father’s stead because, in the meantime, his father died in prison on 13 July 2016, after having long complained about inadequate medical care under the 41bis regime.
As largely expected, however, and as I will indicate in the “Conclusion”, ECtHR judgments against the 41bis regime were not welcomed in a positive way by the Italian authorities.
Conclusion
According to Cifaldi and Scardaccione (2018), Article 41bis in all its application modalities applies to specific preventive purposes and social defence, and should not be interpreted as a more severe form of punishment towards criminals who have been guilty of particularly serious crimes. The discriminating factor is represented by the extent to which the perpetrator represents a danger to the same social organization that feels threatened: the social danger of the subject is for that reason placed in a perspective of collective security disregarding the damage, however noteworthy, that the single victim can have suffered.
In this sense, the position of the Italian Government remains very clear. Participating at a side event of his party in early February, the Italian Foreign Minister, Antonio Tajani stated that “Article 41bis cannot be touched at this moment because we still need to defeat the mafia and terrorism […] [Article 41bis is] a guarantee instrument for the security of the state. Article 41bis serves to prevent there being external connections for prisoners who have committed very serious crimes and can continue to give directions or orders to their associates”. In addition, on 9 February 2023, before the ruling by the Italian Corte di Cassazione of 24 February, the Minister of Justice, Carlo Nordio, rejected Mr Cospito’s appeal against the Article 41bis prison regime.
Yet, the debate in Italy continues among protests organized by Mr Cospito’s supporters, such as the protest staged at Rome’s Vittoriano Monument on 23 February, where protesters used smoke bombs and unfolded a banner reading ‘Italy Tortures. We are with Alfredo (Cospito). No to 41bis’.
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