ECHR Case Law, Italy, Italy, Preventive detention, Research

Implementation of the concept of «dangerous state of the person» in the Italian penitentiary system (the Italian anti-mafia legislation in the caselaw of the European Court of Human Rights)

The paper is focused on the Italian experience of counteraction to the organized crime organizations (mafia, Cosa Nostra, Ndrgangheta, Camorra) based on so called the «41-bis» system.

An Article 41-bis of the Prison Administration Act (Italy), also known as «carcere duro», is a provision of the national Italian legislation that allows the Minister of Justice or the Minister of the Interior to impose a strict prison regime of certain categories of prisoners who are sentenced for committing of different Mafia-type crimes (membership and active role in the Mafia-type organizations, drug trafficking, homicide, aggravated robbery, kidnapping, terrorism, and attempting to subvert the constitutional system.

The paper analysis different types of restrictions and bans that could be imposed by the Minister on mentioned above inmates.

The paper provides explanation of the origins of the «41-bis» system in 1975 and its transformation in 1991 due to bombing two well-known Italian judges famous for their anti-Mafia position (Giovanni Falcone and Paolo Borsellino).

The paper is based on the general idea that mentioned below judgments reflect implementation of the concept of «dangerous state of a personality» (pericolosità) in national Italian law-enforcement and penitentiary practices.

Namely, the paper analyze the most important ECHR judgments in cases «Guzzardi v. Italy» (application № 7367/76, judgment 06.11.1980), «Musumeci v Italy» (application № 33695/96, judgment 11.01.2005), «Asciutto v. Italy» (application № 35795/02, judgment 27.11.2007), «Enea v. Italy» [GC] (application № 74912/01, judgment 17.09.2009) and «Marcello Viola v. Italy (№ 2)» (application № 77633/16, judgment 13.06.2019).

The paper contains an analysis of the conventional rights (articles 3, 5, 8 and 8) in the ECHR practices in mentioned above cases.

The paper is also focused on two judgments of the Constitutional Court of Italy concerning the «41-bis» system (2019, 2020) passed as a consequence of the ECHR judgment in the case of «Marcello Viola v. Italy (№ 2)».

The paper is also based on the CPT report published in January 2020 after the CPT special visit to the Italian penitentiary establishments in 2019.