Article 41-bis prison regime
In Italian law, Article 41-bis of the Prison Administration Act, 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 it is used against people imprisoned for particular crimes: Mafia-type association under 416-bis (Associazione di tipo mafioso), drug trafficking, homicide, aggravated robbery and extortion, kidnapping, terrorism, and attempting to subvert the constitutional system. It is suspended only when a prisoner co-operates with the authorities, when a court annuls it, or when a prisoner dies. The Surveillance Court of Rome is the court competent on nationwide level on appeals against the 41-bis decree.
The system was essentially intended to cut inmates off completely from their original milieu and to separate them from their former criminal associates. Measures normally include bans on:
- the use of the telephone;
- all association or correspondence with other prisoners;
- meetings with third parties;
- receiving or sending sums of money over a set amount;
- receiving parcels (other than those containing linen) from the outside;
- organising cultural, recreational or sporting activities;
- voting or standing in elections for prisoner representatives; and
- taking part in arts-and-crafts activities, etc.,
Article 41-bis was introduced in 1975 (Prison Administration Act, Law no. 354 of 26 July 1975) as an emergency measure to deal with prison unrest and revolts during the years of lead (Italian: anni di piombo), characterized by widespread social conflicts and terrorism acts carried out by extra-parliamentary movements.
In February 1991, the then Italian Ministry of Interior Vincenzo Scotti referred to the Ministry of Grace and Justice Claudio Martelli 23 exponents of the mafia would be released and enabled to return to their affairs in Palermo. To prevent that risk, the Italian government met during the night and approved a restrictive authentic interpretation of the norm.
On 8 June 1992, after the killing on 23 May of judge Giovanni Falcone by the Corleonesi clan of the Sicilian Mafia in the Capaci bombing, the regime was modified (confirmed in Law no. 356 of 7 August 1992).The new article stipulated that restrictive measures could be implemented when there was "serious concern over the maintenance of order and security." The aim was to prevent association, and therefore the exchange of messages, between Mafia prisoners and to break the chain of command between Mafia bosses and their subordinates.
In the days following the killing of Falcone's colleague Paolo Borsellino in the via D'Amelio bombing on 19 July 1992, 400 imprisoned Mafia bosses were transferred by helicopter and military transport aircraft from Palermo’s Ucciardone prison to top security prisons on the mainland at Ascoli Piceno and Cuneo, and to the island prisons of Pianosa and Asinara, where the severity of the 41-bis regime was accentuated by geographical remoteness. After Mafia boss Salvatore Riina was captured in January 1993, numerous terror attacks were ordered as warning to its members to not turn state's witness, but also in response for the overruling of 41-bis system.
Over the years, the 41-bis system has gradually been relaxed, in response to domestic court decisions or the European Committee for the Prevention of Torture (CPT) recommendations to ensure appropriate contacts and activities for prisoners subject to that regime. When first implemented, section 41-bis also empowered the Minister of Justice to censor all of a prisoner’s correspondence, including that with lawyers and organs of the European Convention on Human Rights (ECHR). The Court affirmed that under the exceptional regime of art. 41-bis there is an unlawful interference with the right to correspondence ex art. 8 of ECHR, since restrictions to constitutional rights can be determined only by means of a reasoned judicial decision and never by means of a Ministerial Decree.
In 2002, the measure became a permanent fixture in the penal code. Amnesty International has expressed concern that the 41 bis regime could in some circumstances amount to "cruel, inhumane or degrading treatment" for prisoners.
In June 2002, some 300 Mafia prisoners declared a hunger strike, calling for an end to the isolation conditions and objecting to parliament's Antimafia Commission proposal to extend the measure. Apart from refusing prison food, the inmates had been constantly banging the metalwork of their cells. After the protest began in Marina Picena prison in central Italy – the prison's inmates include Salvatore Riina, the reputed "boss of bosses" – it spread rapidly across the country, in spite of inmates supposedly having no way to contact one another. Mobsters of different ranks in eight prisons had joined in.
According to an American judge in October 2007 the 41-bis prison regime was designed to physically and psychologically compel criminals to reveal information about the Sicilian Mafia and constituted "coercion … not related to any lawfully imposed sanction or punishment, and thus constitutes torture." The judge based his ruling on the United Nations Convention Against Torture. Immigration and Customs Enforcement successfully appealed the ruling.
European Court of Human Rights
On November 27, 2007, the European Court of Human Rights held that the application of the 41-bis regime breached two articles of the European Convention on Human Rights, namely Article 6 § 1 (right to a fair hearing), and Article 8 (right to respect for private and family life). The court did not find against the regime as a whole, but re-affirmed the right to uncensored correspondence with lawyers and human-rights groups. The ruling was in response to a suit filed by Santo Asciutto, a member of the notorious Calabrian crime syndicate 'Ndrangheta, who is serving a life sentence for murder. In the case Enea vs. Italy on September 17, 2009 the court found that there had been breaches of his right to a fair hearing, and to respect for his correspondence. He was awarded some legal costs but no damages.
- Long Distance Proceedings Through Videoconference: The Italian Experience Archived June 11, 2007, at the Wayback Machine, Ministry of Justice (Italy) at the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna, April 10–11, 2000
- "Response of the Italian Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Italy". European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Council of Europe. 20 April 2010. Retrieved 18 August 2011.
The responsibility to decide on complaints against the ministerial decree setting the 41bis regime has been given to the Supervisory Court in Rome, in order to avoid conflicting verdicts on this issue by the territorial Supervisory Courts being in the past entrusted to decide, depending on the territorial penitentiary at which the prisoner under 41 bis had been placed; the term to lodge a complaint has been extended from ten to twenty days, though such complaint does not suspend the execution of the relevant measure.
- Strasbourg court jurisprudence and human rights in Italy: An overview of litigation, implementation and domestic reform Archived July 21, 2011, at the Wayback Machine, Juristras State of the Art Report by Marcello Flores, Anna Cesano & Sara Valentina Di Palma, University of Siena
- Jamieson, The Antimafia, p. 45-46
- Case of Enea v. Italy, Grand Chamber, European Court of Human Rights, 17 September 2009
- Concetto Vecchio (May 7, 2020). "Martelli: " Ho suggerito io a Bonafede il piano per riportare i boss in carcere, ma il mio decreto anti-mafiosi era un'altra cosa"" [Martelli: "I've suggested to [Alfonso] Bonafede to pur again the boss in prison, but my anti-mafia decree was another thing"]. La Repubblica (in Italian). Archived from the original on September 2, 2020.
- The Olive Tree of Peace: The massacre in via dei Georgofili Archived 14 August 2014 at the Wayback Machine, The Florentine, 24 May 2012)
- Amnesty International Report 2003 - Italy, Amnesty International, May 28, 2003
- Italy condemned for tough jail conditions, ANSA, January 16, 2008
- Jailed Mafia bosses refuse food, BBC News, July 9, 2007
- Mafiosi spread news of jail protest over law that stops them talking[permanent dead link], The Independent, July 11, 2002
- Mafia strike leaves Italy cold, BBC News, July 16, 2002
- Suspected mob figure won't be returned to Italy, Los Angeles Times, October 15, 2007
- Fears of torture for Italian gangster Archived October 17, 2007, at the Wayback Machine, The Independent, October 17, 2007
- Press release[permanent dead link], European Court of Human Rights, November 27, 2007
- Press release Grand Chamber Judgment Enea v. Italy[permanent dead link], European Convention on Human Rights, September 17, 2009
- Jamieson, Alison (2000). The Antimafia. Italy’s Fight Against Organized Crime, London: MacMillan Press ISBN 0-333-80158-X
- European Parliament. REPORT 24 February 2004, with a proposal for a European Parliament recommendation to the Council on the rights of prisoners in the European Union (2003/2188(INI). Committee on Citizens' Freedoms and Rights, Justice and Home Affairs.
- "The Column of Infamy by Pasquale De Feo", Radio Onda Rossa (Scarceranda), 2010
- (in Italian) L'Europa condanna il "41 bis", Antimafia Duemila, January 8, 2008
- (in Italian) "Il 41 bis equivale a una tortura", TG3, October 15, 2007