The case of Alfredo Cospito, an anarchist who remained on a “41-bis” detention regime despite a 6-month long hunger strike, has reignited the debate on the compatibility of the Italian hard prison regime with human rights.
The “hard prison” regime before the Constitutional Court and the ECtHR
The “41-bis” system is devised to prevent members of organized crime from promoting their illegal activities from inside the prison. In doing so, it significantly curtails the rights of the detainee, isolating him from other inmates, reducing and imposing the videorecording of family members’ visits, and monitoring his correspondence.
In recent years, both the Italian Constitutional Court and the ECtHR have taken stance on the compatibility of the regime with fundamental human rights. The Italian Constitutional Court tried to “soften” the regime, declaring the lack of constitutional legitimacy of the prohibition to cook food, the prohibition to exchange objects with other inmates, and the control of the detainee’s correspondence with his lawyer.
The ECtHR, in turn, has never rejected the 41-bis regime as a whole (the Council of Europe’s Committee for the Prevention of Torture, on its part, has “call(ed) upon the Italian authorities to engage in a serious reflection on the current configuration and execution of the “41-bis” detention regime throughout the prison system, also taking into consideration Article 27, paragraph 3, of the Italian Constitution”). Yet, in Provenzano v. Italia, the Strasbourg Court found that the renewal of the measure despite the aggravating medical conditions of the detainee violated his right to dignity. The Court noted that the domestic authorities had to undertake “a genuine reassessment taking into account any relevant changes in the applicant’s situation”, which was absent in the case. Notably, the Italian authorities failed to adequately consider the aggravating cognitive conditions of the detainee, which could have prevented him from actively maintaining contacts with the outside criminal network. As to the physical conditions of the detainee, the Court concluded that the medical assistance provided and the hygienic conditions were not per se incompatible with his health conditions and, consequently, with his right to dignity under Article 3 ECHR.
The peculiarities of Mr. Cospito’s case
The case of Mr. Cospito, who suffered a severe physical deterioration but has intact cognitive skills, is likely to engage the second type of analysis. In that respect, a first indication may come from the United Nations Human Rights Committee (UNHRC), which was addressed by Cospito’s lawyers through a communication under the Optional Protocol to the ICCPR. The UNHRC retained the matter for consideration and, pending its decision on the merits of the case, requested Italy “to ensure that Mr. Cospito’s imprisonment conditions are in accordance with international standards and compatible with articles 7 and 10 of the Covenant”.
Moreover, Mr. Cospito’s peculiar situation adds a further layer of complexity to the matter, for at least two reasons. Firstly, his aggravating physical conditions result from the deliberate choice to pursue a hunger strike. This aspect came into play in the proceedings initiated by Mr. Cospito to obtain the transfer to home detention for serious medical reasons. In rejecting the request, though, the Court of Milan noted that the “self-inflicted condition of suffering … cannot be taken into account for the purposes of balancing the need to safeguard fundamental rights with the required effectiveness of the punishment”.
Secondly, Mr. Cospito has been the first anarchist to be subject to the 41-bis regime, which was originally designed for and has been historically applied to members of more structured and hierarchical organizations such as mafia. Yet, the Court of Cassation found that the existence and the dangerousness of the contacts between Mr. Cospito and the other members of his anarchical organization justified the imposition of the 41-bis regime, despite the Attorney General’s opinion to the contrary.
In June 2023, pursuant to an intervention of the Constitutional Court, Cospito’s sentence was reduced from life imprisonment to 23 years. While this change prompted Mr. Cospito to interrupt his hunger strike, he currently remains under a 41-bis detention regime. With new developments expected in fall, it is interesting to see how the Italian “hard prison” regime will last before the different treaty bodies and courts called to address its human rights implications.
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