Communicated on 6 July 2016

FIRST SECTION

Application no. 55080/13 Bernardo PROVENZANO against Italy lodged on 25 July 2013

STATEMENT OF FACTS

The applicant, Mr Bernardo Provenzano, is an Italian national, who was born in 1933 and is detained in Milan. He is represented before the Court by Ms R.A. di Gregorio, a lawyer practising in Palermo.

A. The circumstances of the case

The facts of the case, as submitted on behalf of the applicant by his guardians, Mr Angelo Provenzano and Mrs Saveria Benedetta Palazzolo, and as they appear from the documents present in the case file, may be summarised as follows.

1. Background to the case

The applicant, who had been on the run from authorities ( latitante ) for over forty years, was arrested on 11 April 2006.

Several sets of criminal proceedings were brought against the applicant, as a result of which he was sentenced to twenty terms of life imprisonment for, amongst other offences, membership of a mafia-type criminal organisation, multiple homicide, aggravated attempted homicide, strage (large-scale violence endangering life), drug trafficking, kidnapping, criminal coercion, aggravated theft, and the illegal possession of firearms.

Other criminal proceedings are pending against the applicant. In the context of one such set of proceedings, on 7 December 2012 the preliminary hearing judge ( giudice dell ’ udienza preliminare , hereafter “the GUP”) of the Palermo District Court ordered an expert evaluation of the applicant ’ s health in order to assess his ability to understand and participate rationally in the preliminary hearing.

On 12 December 2012 the court-appointed experts carried out a first examination. However, they were unable to undertake further asse ssments, because on 17 December 2012 the applicant underwent surgery to remove a subdural hematoma from his brain, and was then in recovery. Based on their first examination and the applicant ’ s medical records, the experts nonetheless reported that the applicant displayed reduced consciousness and responsiveness to his surroundings, as well as a limited ability to express himself.

By an order of 8 January 2013 the GUP adjourned the proceedings against the applicant until such time as he had recovered from the surgery.

Following a documented improvement in his condition, the GUP ordered a new expert evaluation, which was carried out on 1 March 2013. The experts concluded that the applicant was not in a condition to consciously participate in the preliminary hearing.

By an order of 5 March 2013 the GUP suspended the proceedings against him and appointed his partner as his guardian . The GUP set the date of 16 April 2013 for a decision on the need for further assessments. No additional information has been provided on the status of those proceedings.

The applicant was detained in several Italian correctional facilities. According to the material in the case file, he was detained in the Novara Correctional Facility from an unspecified date until 27 April 2011, when he was transferred to the Parma Correctional Facility. On 7 June 2013 he was admitted to the correctional wing ( reparto protetto ) of the Parma General Hospital, where he remained until his transfer to the Treatment and Diagnostic Centre ( centro diagnostico terapeutico ) of the Milan Opera Correctional Facility on 5 April 2014.

On 9 April 2014 he was admitted to the correctional wing of the San Paolo Hospital in Milan, where he is currently hospitalised.

2. The applicant ’ s health

The applicant suffers from a number of chronic medical conditions, including akinetic-rigid Parkinson ’ s disease, vascular encephalopathy, hepatopathy linked to HCV (hepatitis C virus), and arterial hypertension. The applicant ’ s clinical condition is also characterised by a progressive decline in cognitive functioning . It is apparent from his medical history that he underwent a radical prostatectomy in 2003 and a partial thyroidectomy on an unspecified date.

According to the most recent medical report on file, issued by the San Paolo Hospital in Milan in April 2015, the applicant ’ s neurological situation is stable, although his progressive decline in cognitive functioning is described as serious. He is bedridden, has a urinary catheter and receives his nutritional support via a naso-intestinal feeding tube.

3. The conditions of the applicant ’ s detention

(a) The applicant ’ s medical records and other relevant facts concerning the conditions of his detention

On 27 April 2011 the applicant was transferred to the Parma Correctional Facility. T he prison medical register from May 2011 to April 2013 shows that the applicant ’ s health was regularly monitored by medical and nursing staff at the Parma Correctional Facility ’ s health unit. In addition to such monitoring, there is a record of physicians being called to examine the applicant when he complained about specific ailments, or when requested by the nursing staff.

During the same period a large number of specialist consultations were arranged, and the applicant was examined by a cardiologist, an infectious disease specialist, a urologist, an endocrinologist, an otolaryngologist, a pulmonologist, an orthopaedist, a physiatrist, and a nutrition specialist. He also had several surgical consultations. Moreover, a large number of diagnostic tests were performed on him, ranging from routine blood tests and echocardiograms to various ultrasounds (renal, thyroidal, and abdominal), CAT (computerised axial tomography) scans, PET (positron emission tomography) scans, PSA (prostate-specific antigen) tests, X-rays, and colonoscopies. With regard to the applicant ’ s neurological situation and decline in cognitive functioning, the medical register shows that he was examined several times by a neurologist, a psychiatrist and a psychologist, and that diagnostic tests were performed.

On 17 October 2012 a doctor at the correctional facility ’ s medical unit reported a severe increase in the applicant ’ s blood pressure and transferred him to the emergency department of the civilian hospital in Parma, where he was diagnosed with a hypertensive crisis. A CAT scan and other diagnostic tests were performed, and the applicant was examined by specialists. Following an improvement in his condition, he was discharged on 19 October 2012.

On 3 December 2012 the duty doctor transferred the applicant to the civilian hospital in Parma, as he appeared disorientated and was refusing to eat or take his prescribed medication. The duty doctor also reported that the applicant had fallen. According to the hospital record, an ultrasound was performed and the applicant was examined by a neurologist, a psychiatrist and a nutrition specialist. He was discharged on 7 December 2012.

On 12 December 2012 the duty doctor was called by a prison officer, who reported that the applicant had slipped in his cell and fallen. While no repercussions worthy of note were registered, amongst other things the doctor recommended that, in the light of previous falls and the applicant ’ s medical conditions, his cell be equipped with a bed with safety rails.

On 15 December 2012 the duty nurse reported that the applicant had fallen out of bed while sleeping. The duty doctor examined him and found him to be alert, cooperative and oriented. He noted what he described as minimal bruising above the applicant ’ s right eye, and reported normal vital signs. He examined the applicant another time on the same day, reported normal cardiorespiratory values, and instructed the nurse to check on him and monitor his vital signs.

In the morning of 17 December 2012 the duty nurse called the doctor, as the applicant was not responding to verbal or painful stimuli . He was transferred to the Parma General Hospital, where he underwent surgery for the removal of a subdural haematoma. He was then placed in the hospital ’ s long-term care unit and later in its correctional wing.

On 18 February 2013 doctors decided that the applicant could be discharged, and on 5 March 2013 he was transferred back to the Parma Correctional Facility.

In the meantime, on 1 March 2013, a personal care plan had been developed by the correctional facility ’ s medical unit in view of the applicant ’ s return . The plan outlined the applicant ’ s general and specific needs, and included a schedule of regular medical examinations, a nutrition and hydration plan, and a plan to avoid bedsores and other consequences of long-term bed rest. Specialist consultations to follow up on the applicant ’ s medical conditions were requested. The care plan also concerned assistance which the applicant required with daily tasks he could no longer perform, such as taking care of his personal hygiene. It also provided for the management of his incontinence.

On 7 June 2013 the applicant was admitted to the civilian hospital in Parma. He was diagnosed with a bacterial infection and a yeast infection. Following a consultation with an infectious disease specialist, he was prescribed treatment.

On 29 June 2013 the applicant ’ s son lodged a criminal complaint with the Parma public prosecutor, alleging that his father was not being properly cared for, in that his underwear, which had been taken from the correctional facility on 22 June 2013, had been stained with urine. No information was provided as to the outcome of those proceedings.

On 10 October 2013 the Parma Prison authorities issued a certificate with supporting documentation, which attested that an inspection had been carried out by the local health authority on 26 February 2013. The purpose of the inspection had been to assess the compatibility of the premises where the applicant was to be accommodated on his return with his health and care needs. The prison management certified that a new bed with safety rails and a special mattress to prevent bedsores had been placed in the applicant ’ s cell. It also stated that orderlies and nurses had taken care of his personal hygiene on a daily basis as of 5 March 2013.

On 9 April 2014 the applicant was transferred to the correctional wing of the San Paolo Hospital in Milan.

(b) Domestic decisions concerning the applicant ’ s health and detention

It is apparent from the material in the case file that, during the applicant ’ s period of detention in Parma, the applicant ’ s lawyers lodged applications with different courts responsible for the execution of sentences, seeking the suspension of his prison sentence for medical reasons and the replacement of detention with a more lenient custodial measure, namely house arrest in a civilian hospital.

By a decision of 3 May 2013 the Bologna court responsible for the execution of sentences (“the Bologna Court”) dismissed an application to suspend the applicant ’ s prison sentence for medical reasons. It considered that it could not be stated that his medical conditions required treatment which could not be provided in custody, albeit custody coupled with admission to a civilian hospital whenever necessary. The Bologna court considered that he had received and was receiving medical treatment, frequent medical examinations, and diagnostic tests. It underlined that the applicant had been admitted to a civilian hospital when the necessary treatment could not be administered in the correctional facility, even for extended periods of time. It also noted that the proximity of the civilian hospital to the correctional facility made it possible to admit the applicant to the emergency department in a timely fashion and whenever necessary. The court also concluded that the applicant ’ s medical conditions were not in such an advanced state that he no longer responded to treatment.

It is not known whether the decision was appealed against.

By a decision of 27 August 2013 the Bologna Court dismissed another application to suspend the applicant ’ s prison sentence for medical reasons. The court noted at the outset that the medical documentation it had considered showed that the applicant ’ s medical conditions were being adequately monitored and treated in the correctional facility, with external hospitalisation being sought when required. Referring to medical reports, the court noted that the applicant was responding positively to treatment and in the manner expected, given his advanced age and the nature of his medical conditions. Moreover, the court considered that he would not benefit from additional or alternative medical treatment if his sentence were suspended.

It is not known whether the decision was appealed against.

On an unspecified date and of their own accord, medical staff at the San Paolo Hospital in Milan submitted medical reports concerning the applicant to the Milan court responsible for the execution of sentences (“the Milan Court”). After providing an account of his condition and the treatment he was receiving in hospital, the doctors expressed the opinion that his current state of health was incompatible with detention in a correctional facility. In their opinion, the applicant could only receive adequate medical care in a long-term care unit within a hospital. The doctors certified that the correctional wing in which he was hospitalised had the necessary medical staff and equipment to provide adequate care and treatment.

On 4 August 2014 the Milan Court appointed two medical experts, with a view to obtaining an independent medical assessment of the applicant ’ s condition and an expert opinion as to whether he could be adequately cared for and treated in the correctional wing of the San Paolo Hospital.

On 3 October 2014 the Milan Court decided that there were no grounds for modifying the applicant ’ s sentence. The court reported the findings of the independent experts, who had concluded that the applicant ’ s medical conditions were serious and would not improve, but could be kept stable through constant hydration, nutrition, check-ups, hygiene, and measures to prevent complications. The experts considered that the San Paolo Hospital guaranteed an excellent level of treatment and the presence of clinical specialists who could ensure timely interventions in the event of complications. The court considered that the applicant was being detained only in an ‘ abstract ’ sense, in that he had been placed in a highly specialised civilian hospital which could provide him with the most appropriate and effective care and treatment for his medical conditions.

On an unspecified date the applicant ’ s lawyer lodged an application with the Bologna Court, seeking the suspension of the applicant ’ s prison sentence for medical reasons.

On 11 November 2014 the Bologna Court dismissed the application. It first of all reiterated and expressed its agreement with the conclusions of the Milan Court in its decision of 3 October 2014. It referred to the reports prepared by the medical staff at the San Paolo Hospital and the independent medical experts appointed by the Milan Court in concluding that, notwithstanding the seriousness of the applicant ’ s medical conditions, he was not being detained in a correctional facility, but rather in a civilian hospital, and was responding to the treatment administered in that setting.

It is not known whether the decision was appealed against.

4. The prison regime provided for in section 41 bis of the Prison Administration Act .

On 13 April 2006 the Minister of Justice issued a decree ordering that the applicant should be made subject to the special prison regime provided for in the second paragraph of section 41 bis of the Prison Administration Act (Law no. 354 of 1975). This provision, which was amended by Law no. 279 of 23 December 2002 (Law no. 279 of 2002), allows the application of the ordinary prison regime to be suspended in whole or in part for reasons of public order and safety.

The application of the special regime was subsequently extended for periods of one or two years, via extension orders issued on 5 April 2007, 3 April 2008, 2 April 2009, 1 April 2010, 20 April 2012, 26 April 2014 and 23 March 2016.

On 8 March 2013, in an application addressed to three different courts for the execution of sentences (Bologna, Rome, and Parma) as well as to the Minister of Justice, the applicant ’ s lawyers sought the revocation of the order for the special prison regime provided for by section 41 bis of the Prison Administration Act, the main argument being that, in the light of the applicant ’ s deterioration in cognitive functioning, the reasons as to why the regime had been applied originally were no longer relevant. It is not specified in the application against which Decree the appeal was being lodged.

By a decision of 27 August 2013 the Rome court responsible for the execution of sentences (“the Rome Court”) declared the applicant ’ s application inadmissible. It considered that the power to revoke the order for the 41 bis special prison regime per se rested with the Minister of Justice. The court only had jurisdiction in relation to appeals against administrative decisions issued by the Minister of Justice, such as decisions to renew the application of the special regime or refusals by the Minister to revoke orders for the regime. It therefore lacked jurisdiction to examine the applicant ’ s claim.

On 21 November 2013 the applicant ’ s lawyer lodged an application with the Minister of Justice, seeking revocation of the order for the 41 bis special prison regime. On 11 February 2014 the Minister of Justice ’ s decision dismissing the application was served on the applicant ’ s next of kin.

On 13 February 2014 the applicant ’ s lawyer lodged an application ( reclamo ) against the Minister ’ s decision with the Rome Court. He reiterated the arguments advanced in the application of 8 March 2013. In support of the application, it was submitted, inter alia , that the Palermo GUP had suspended the proceedings against the applicant and appointed a guardian, having deemed the applicant unable to consciously participate in the proceedings.

By a decision of 5 December 2014 the court dismissed the application. The court acknowledged the serious decline in the applicant ’ s cognitive functioning, and cited several findings contained in a neuropsychological examination performed on the applicant on 25 November 2014. The report indicated that the applicant was alert and, when appropriately stimulated, sporadically formulated sentences that made sense. However, a conclusive assessment of his cognitive skills had not been possible due to the advanced state of his Parkinson ’ s disease, coupled with his failure to concentrate and general lack of cooperation.

The court also relied on reports from health-care staff in the hospital ward, which indicated that the applicant had moments of lucidity alternating with moments of confusion, and at times replied to their questions in a comprehensible and coherent manner. On the basis of such findings, the court concluded that it could not with absolute certainty rule out the possibility of the applicant being able to convey criminally relevant messages pertaining to the organisation ’ s criminal activities via family members or other individuals if allowed unregulated contact with the outside world. The court reiterated that the applicant, the leader of Cosa Nostra (the Sicilian Mafia) for decades, had been considered to be an individual who posed a great threat to society. It reiterated that during his time in hiding he had managed to run the criminal organisation through so-called pizzini , apparently simple messages which concealed orders and instructions for his criminal network. Based on the foregoing considerations, the court concluded that the confirmation of the 41 bis prison regime was still fully justified in the interests of public safety.

It is not known whether the decision was appealed against.

B. Relevant domestic law and practice

A description of the relevant domestic law and practice concerning the 41 bis special prison regime can be found in Enea v. Italy [GC], no. 74912/01, § 30-42, ECHR 2009 .

COMPLAINTS

The applicant complains under Article 3 that his detention is incompatible with his age and health conditions. He further complains that the domestic authorities have not taken all necessary measures to safeguard his health and well-being in detention, particularly with reference to his detention in Parma. He further contends that the continued imposition of the 41 bis special prison regime, notwithstanding his health conditions, entails a violation of Article 3.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Has the applicant been subjected to inhuman or degrading treatment, in breach of Article 3 of the Convention?

Was the applicant ’ s state of health compatible with the conditions of his detention? Taking into account the applicant ’ s medical conditions, did the authorities of the respondent State comply with their obligation to ensure that his health and well-being were adequately safeguarded by, amongst other things, providing him with the requisite medical assistance, particularly with regard to the period of detention in Parma?

In the light of the specific circumstances of the case, does the continued imposition of the 41 bis special prison regime amount to treatment prohibited by Article 3 of the Convention?

INFORMATION SOUGHT

1. The Government are invited to provide any update with regard to proceedings before the domestic courts concerning the imposition of the 41 bis special prison regime, and supply any pertinent documentation.

2. The applicant is invited to provide copies of all the applications submitted to the domestic courts in relation to (a) requests for a stay of execution of sentence on health grounds (b) appeals against the imposition of the 41 bis regime.