Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33830/96

by Robert VENETUCCI

against Italy

The European Commission of Human Rights sitting in private on

2 March 1998, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 August 1996 by

Robert VENETUCCI against Italy and registered on 15 November 1996 under

file No. 33830/96;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on 11 and

25 June 1997 and the observations in reply submitted by the

applicant on 5 August 1997;

- the Commission's decision of 12 December 1997 to ask the parties

for supplementary observations;

- the supplementary observations submitted by the respondent

Government on 9 January 1998 and by the applicant on 31 December

1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a US citizen, born in 1920 and currently

detained in Pesaro. Before the Commission, he is represented by

Maria Lucia Pizza, a lawyer practising in Pesaro.

The facts of the case, as submitted by the parties, may be

summarised as follows:

By a judgment which became final on 5 March 1987, the applicant

was sentenced to life imprisonment for aggravated murder. On

30 November 1990, the applicant obtained from the Torino Court

supervising the execution of sentences ("Tribunale di Sorveglianza")

a first reduction of sentence while he was detained in the prison of

Novara.

On 9 October 1991, the applicant was transferred to the prison

of Pesaro, after a warning that in Novara he might have been attacked

by another person detained in that prison. In Pesaro, the applicant was

initially submitted to the strict security regime, provided for by

Article 41bis of Law No 354 of 1975; he was thus kept in solitary

confinement except for one hour per day when he was released from his

prison cell.

The applicant lodged several applications to obtain his transfer

to the United States with a view to serving the rest of the sentence

in his home country, where his only relatives, his wife and two

daughters with their children, lived. Given the refusal of these

requests, the applicant went on hunger strike twice and rejected any

medical treatment: the first time from 19 to 21 November 1992 and the

second time from 18 to 23 June 1993.

In February 1993, the applicant's wife died.

The strict security regime provided for by Article 41bis of Law

No 354/1975 was revoked in July 1993. Since then, the applicant has

nevertheless been constantly treated in a special way because of the

persisting fears for his security. In fact, another person who had been

convicted of the same murder had been found dead in prison. Thus, the

food for the applicant was prepared by the guards' canteen and was

handed to him in a locked suitcase to which only the applicant had the

key. For the same reason, the applicant spontaneously renounced the

hour he was allowed to spend outdoors, preferring to have contact only

with the staff, with whom he had a very good relationship. He was kept

under constant surveillance by a prison guard and his cell was equipped

with a television camera.

The applicant received visits solely from personnel of the US

Embassy, his lawyer and the prison staff. He remained in contact with

his relatives in the United States by mail.

On 11 November 1993, the Ancona Court supervising the execution

of sentences granted the applicant a second reduction of sentence.

On 2 December 1994, the applicant was diagnosed as suffering from

a very serious heart condition requiring surgical treatment, which was

however very risky.

On 22 December 1994, the Ancona judge supervising the execution

of sentences ("Magistrato di Sorveglianza") granted the applicant

special leave for 25-26 December 1994 and 1 January 1995, from 9 a.m.

till 8 p.m. On the above-indicated dates, he was thus authorised to

leave the prison under certain conditions, such as a police check on

leaving the prison and on return. During his leave, the applicant was

accompanied by the prison's chaplain. In his decision, the Ancona judge

stressed that the applicant's main wish at that point was that his

punishment be humanised and, according to the judge, he fully deserved

special leave.

In a report drawn up on 14 February 1995, the prison doctor

certified that the applicant suffered from heart ischemia which, as

shown by the results of the examination of 2 December 1994, called for

surgical treatment. The latter however would have been particularly

risky in the light of the likely deterioration of the applicant's

condition. The doctor concluded that such likely deterioration "could

hardly be dealt with in prison" and that "in the light of the

applicant's age, of the seriousness of his medical condition and the

adverse effects of his detention in the present case, it was requested

that the competent judicial authorities take the possible steps

provided for by law".

On 14 February 1995, the applicant applied for suspension of the

sentence and, in the alternative, early release on compassionate

grounds; he pointed out that his detention was incompatible with his

medical condition and constituted a "useless aggravation of his

suffering" and inhuman treatment in breach of his right to health. His

request for suspension of the sentence was refused by the Ancona Court

on 6 April 1995 on grounds that the applicant had no place of residence

in Italy where he could be assigned to compulsory residence and that

his medical condition was being monitored satisfactorily in prison; at

the same time the Court recognised that the applicant's behaviour in

prison had been excellent. The Court also referred to two medical

reports of 14 February and 22 March 1995, stating on the one hand, that

the applicant's health condition seemed to be fairly good, even if

there was a risk of its worsening, and a surgical operation was

inadvisable, and on the other hand, that the condition of the applicant

appeared to be stable under pharmacological treatment. The Court

finally stressed that the applicant's main wish was not his release but

his transfer to the United States, in order to serve the rest of his

sentence close to his two daughters. The applicant's request for early

release was thus rejected, though he was granted 135 days' reduction

of sentence.

On 22 April 1995, the applicant lodged an appeal on points of law

on grounds that the Criminal Code did not require a specific place of

residence in Italy in order to grant a suspension of sentence, and that

his medical condition was so serious that his detention constituted

inhuman treatment. By a judgment dated 20 November 1995 and filed with

the Registry on 9 January 1996, the Court of Cassation rejected the

applicant's appeal.

In the meantime, on 22 May 1995, the applicant was taken to

hospital suffering from a heart attack. In a report dated 27 May 1995,

the consultant doctor stated that, in the light of the risks of

surgical treatment, the applicant could only be treated with medicine.

On 3 June 1995, the applicant applied to the Ancona judge for

suspension of the sentence. On 12 June 1995, the judge rejected the

application and referred the matter to the Court supervising the

execution of sentences. The first hearing before the latter was fixed

for 26 October 1995.

In a report dated 23 June 1995, the prison doctor stated that the

applicant could have a heart attack at any moment, which could not be

satisfactorily dealt with in prison.

As from July 1995, following the prison doctor's report, the

applicant was assigned light gardening tasks for about two hours a day

(picking dead leaves and watering flower-beds). At the beginning, he

was kept under a guard's surveillance while engaged in those tasks, but

later on he was left alone, on account of the special leave he had been

granted.

At the applicant's request, the hearing before the Ancona Court

was brought forward to 14 September 1995. On this day, an expert was

appointed by the Court to state whether the applicant's medical

condition was compatible with his detention, namely whether the

detention would have adverse effects on the applicant's life

expectancy.

The expert stated in his report filed with the Registry on

2 October 1995 that, although the applicant appeared to be in

reasonably good health, his medical condition was serious and

aggravated by the sedentary life he led in prison and by the stress.

The expert considered that in order to improve his life expectancy, it

was absolutely necessary for the applicant:

- to live without stress;

- to walk regularly;

- to avoid any emotion and sudden changes of blood pressure;

- to take medicines which could partly make up for the actual

heart damage.

According to the expert, it was not possible for the applicant

to fulfil these conditions in prison at that time, as he was obviously

subject to continuous stress and he could not walk as much and as often

as necessary; the applicant's detention was thus aggravating and

perpetuating the risk of a short-term deterioration of his medical

condition. Moreover, according to the expert, the applicant could die

at any moment. In conclusion, the expert stated that "...any

improvements (in the applicant's health) cannot be obtained through a

different medical therapy or admission to a specialised hospital, given

the impossibility of surgical treatment. If it is sought to prolong and

not to endanger the applicant's life, he must be allowed to have a

different lifestyle, without the stress and the anguish caused by

detention, and to walk extensively. Only on these conditions can the

applicant's life expectancy be considered less restricted."

By a decision of 19 October 1995, filed with the Registry on

25 October 1995, the Ancona Court refused the applicant's request. It

held that it did not appear from the expert opinion that the applicant,

who was admittedly "in rather good health" although at risk of sudden

death, could benefit from better medical treatment outside prison. As

to the psychological aspect, the Court accepted that the applicant was

more sensitive to his environment than usual as a result of his

illness. However, it considered that the applicant's situation did not

attain the minimum level of severity provided for by the Constitution

and did not therefore amount to inhuman treatment. The Court considered

that the conditions set out in the expert's report could be met by

transferring the applicant to another prison and by letting him follow

a therapy specially designed for him (it is to be noted that according

to Italian law, the judiciary has no competence to order a detainee's

transfer from one prison to another; besides, in a situation such as

that of the applicant, a transfer could be decided on only with the

latter's consent).

On 9 November 1995 the applicant appealed on points of law

against this decision. He claimed in particular that an hour's walk

within prison was not sufficient and that his being kept in detention,

notwithstanding the clear incompatibility of detention with his medical

condition, clearly amounted to inhuman treatment.

By a judgment of 4 March 1996, the Court of Cassation rejected

the appeal, on the grounds that it did not appear that the applicant

would benefit from more suitable medical treatment outside prison and

that, in case of emergency, he could be taken to an external hospital.

Moreover, a possible transfer of the applicant to another prison and

medical treatment specially designed for him could effectively

contribute to avoiding a risk of deterioration of his medical

condition.

Another request for the suspension of the punishment seems to

have been pending since 1995.

After the first special leave granted in December 1994, the

applicant was granted leave on several other occasions, in particular:

- from 16 to 18 April 1995, between 8 a.m. and 9 p.m.;

- on 25-26 December, 31 December 1995 and 1 January 1996, between

9 a.m. and 9 p.m.;

- from 7 to 9 April 1996, between 9 a.m. and 9 p.m.;

- from 20 to 22 May 1996, between 9 a.m. and 10 p.m.;

- from 29 to 31 July 1996, between 9 a.m. and 10 p.m.;

- during nine full days from 24 December 1996 to 2 January 1997;

- during ten full days from 27 March to 6 April 1997.

The decisions granting the above special leave to the applicant

all emphasised the excellent behaviour and personal attitude of the

applicant and pointed out that the latter always strictly abided by the

conditions attached to the special leave.

During the latest of such leave periods, when the applicant was

allowed to stay out of prison overnight, he was accompanied by the

prison's chaplain or his lawyer and was sometimes accommodated in the

parish church of the prison's chaplain for the night.

The applicant has always ruled out a possible transfer to another

prison in Italy, given his excellent relationship with the staff of the

prison of Pesaro, and has repeatedly stated that his main requests were

either to be set at liberty or to be transferred to a prison in the

United States.

In the prison of Pesaro, the applicant occupies a cell having a

surface of 3.35 x 2.30 metres, plus a bathroom of 4.52 x 2.07 metres.

He is accommodated alone, as for the above-mentioned security reasons

concerning the applicant's safety, he has always been kept in solitary

confinement. On the other hand, the applicant himself has constantly

asked not to have contacts with other detainees, with only a few

exceptions.

The internal prison courtyard measures about 150 square metres

and the external areas about 40,000 square metres. The applicant can

move freely in almost all internal parts of the prison. He takes care

in particular of 5,000 square metres of flower-beds and of a colony of

about thirty cats. The applicant normally spends most of the morning

and a few hours in the afternoon outside his cell, for a total of about

five hours a day.

The applicant is at present undergoing pharmacological treatment

and regular cardiological examinations. This appears from a certificate

of the medical service of the Pesaro prison, which the applicant has

not contested.

So far, the applicant has been granted 945 days' reduction of

sentence in all.

The applicant also presented petitions for a pardon but they have

all been rejected.

However, after several negative decisions the Italian Ministry

of Justice has finally accepted the applicant's latest request to be

transferred to the United States to serve his sentence there and on

30 June 1997, the Court of Appeal of Milan gave a favourable opinion

on the further serving of the applicant's sentence in the

United States. The applicant's transfer to the United States now

depends solely on the consent of the competent authorities of the

United States.

COMPLAINT

The applicant alleges that the refusal to suspend his sentence

constituted a violation of Article 3 of the Convention, in that his

detention is aggravating the risk of a short-term deterioration of his

very serious medical condition.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 August 1996 and registered

on 15 November 1996.

On 17 April 1997, the Commission decided that the application be

granted priority pursuant to Rule 33 of the Commission's Rules of

Procedure and be communicated to the respondent Government.

The Government's written observations were submitted on 11 and

25 June 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 5 August 1997.

On 12 December 1997, the Commission decided to ask the parties

for supplementary observations. Such observations were submitted by the

respondent Government on 9 January 1998 and by the applicant on

31 December 1997.

THE LAW

The applicant alleges that the refusal to suspend his sentence

constituted a violation of Article 3 (Art. 3) of the Convention, in

that his detention is aggravating the risk of a short-term

deterioration of his very serious medical condition.

Article 3 (Art. 3) of the Convention provides that "no one shall

be subjected to torture or to inhuman or degrading treatment or

punishment".

The Government submit that in the light of the various measures

taken by the Italian authorities to improve the conditions of the

applicant's detention, such as his assignment to gardening tasks or the

grant of special leave, the applicant's situation is in conformity with

Article 3 (Art. 3) of the Convention. The Government point out in

particular that the applicant has never asked to be transferred to

another prison in Italy, given the fact that his situation in the

prison of Pesaro and his relationship with its staff have always been

excellent. The Government also stress that the applicant could never

have been moved to another prison without his consent and that the

indications as to this possibility given by the Ancona Court cannot be

interpreted as "recommendations".

The applicant points out, inter alia, that the Government have

not referred to his health condition and his closely linked

psychological state, resulting from the distance from his family and

the impossibility of visits from its surviving members (his wife died

in February 1993 without having been able to speak to him on the

telephone). In particular, according to the applicant, the Government

seem to underestimate the psychological stress for a seventy-seven year

old man, who has been detained abroad for fourteen years, eleven of

which in solitary confinement, and who, when at liberty, had already

had two heart attacks. In these conditions, only the suspension of the

punishment could save his life. In this regard, the applicant points

out that Italian law does not require that the detainee provide an

alternative abode in the country and that he could be accommodated in

the parish church of the prison chaplain, as has occurred twice during

his special leave, or that he could find different accommodation.

Moreover, it should be noted that initially the Ancona Court

rejected the applicant's request for suspension on grounds that he had

no alternative abode on Italian territory, but that reason was not

referred to in a subsequent decision, notwithstanding the fact that the

expert had clearly indicated that the state of detention was

incompatible with the applicant's health.

The Commission recalls first of all its constant case-law

according to which ill-treatment must attain a minimum level of

severity, taking into account all the circumstances, to fall within the

scope of Article 3 (Art. 3) of the Convention (see e.g. No. 21951/93,

Dec. 12.1.95, D.R. 80, p. 108; No. 24088/95, Dec. 12.10.94, D.R. 79,

p. 138).

The Commission further recalls that "issues may arise under

Article 3 (Art. 3) in relation to any lawful sentence of imprisonment

as regards the manner of its execution ..." (see e.g. No. 7994/77, Dec.

6.5.78, Collection 14 pp. 238, 240). The Commission further recalls

that "inhuman treatment may be found to exist in certain circumstances

when a person's detention as such causes his ill-health. In such cases

however the Commission will examine in particular the medical treatment

at that person's disposal. Moreover, there remains the State's

obligation to maintain a continuous review of the detention

arrangements employed with a view to ensuring the health and well-being

of all prisoners, having due respect for the ordinary and reasonable

requirements of imprisonment"; the Commission must therefore turn first

to the applicant's state of health and the treatment he required, and

then examine whether the treatment provided was adequate

(cf. No. 13407/87, Dec. 10.03.88, D.R. 55, p. 279; Bonnechaux

v. Switzerland, Comm. Rep. 5.12.75, D.R. 18, pp. 100, 123, 124 and

No. 8317/78, Dec. 15.5.80, D.R. 20, p. 44).

The Commission notes that the applicant's state of health cannot

be imputed to his detention as such. Nevertheless, it is clear that

although the experts appointed by the competent Italian courts have

indicated that the applicant appears to be in reasonably good health

(see e.g. the expert's report filed on 2 October 1995), the state of

detention has inevitably a certain impact on the applicant's heart

ischemia, as has been pointed out by the same experts who have examined

him.

The fact that the applicant has not been transferred to another

prison in Italy cannot be considered as being conclusive in itself. By

indicating such a possibility, the Ancona Court merely made a

suggestion as to one of the possible measures which could be taken to

improve the applicant's situation. Above all, the latter has always

refused a transfer to another prison in Italy and it clearly appears

from the case-file, as well as from the applicant's allegations, that

he considers the treatment he is receiving in the prison of Pesaro as

being satisfactory.

The Commission notes that in this prison, the applicant benefits

from several specific measures designed to take account of his

situation. In particular:

- the applicant occupies by himself a whole cell equipped with a

private bathroom;

- he spends several hours per day outside his cell and is assigned

some tasks, most of them outdoors;

- he is under constant medical treatment and check-up;

- he has an excellent relationship with the prison staff;

- he has benefited several times from special leave, the most

recent periods of leave having lasted for some days.

The Commission considers that it is difficult to say what more

the Italian authorities could have done to improve the applicant's

situation. On the other hand, given the fact that the applicant has no

residence or family in Italy, it is highly unlikely that the risks for

his health would be reduced if he was released. Besides, the applicant

has not proved that in such a case he would have available better

medical treatment than that given to him in prison.

Moreover, it appears from the case-file that the main aim of the

applicant is to be transferred to the United States to serve the rest

of his sentence closer to his two daughters. In this respect, it must

be recalled that the Convention does not grant prisoners the right to

choose the place of detention and that the separation from their family

are inevitable consequences of their detention (see, for example,

No. 5229/71, Dec. 5.10.72, Collection 42, p. 140, and No. 23241/94,

Dec. 20.10.94, D.R. 79-B, p. 125). In any event, the Italian

authorities have granted the applicant's latest request to be

transferred and his actual transfer to a prison in the United States

is only awaiting a positive response by the competent authorities of

the United States.

In such circumstances and taking account of the overall situation

of the applicant as well as of the inevitable consequences of his state

of detention, the Commission concludes that the situation the applicant

complains of has not attained the minimum level of severity required

by Article 3 (Art. 3) of the Convention (cf. Eur. Court HR, Ireland v.

United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65,

par. 162).

It follows that the application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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