Published on 12 September 2022

FIRST SECTION

Application no. 4953/22 Giuseppe MORABITO against Italy lodged on 7 January 2022 communicated on 22 August 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s continued detention in the Milan Opera prison, in the regime provided by Section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975), despite the deterioration of his physical and mental health.

In particular the applicant, who is aged 88 and detained since 2004, suffers from a cognitive impairment and from a series of chronic diseases (hernia with chronic pain, prostate enlargement with frequent infections due to the use of a catheter, hypertensive heart disease, hyperglycemia, chronic obstructive pulmonary disease, venous insufficiency in the legs, bilateral cataract, colon diverticulosis and arthrosis).

The applicant initiated proceedings before the Rome Court responsible for the execution of sentences ( tribunale di sorveglianza ), which has jurisdiction over appeals against extensions of the Section 41 bis regime. Within this context, a court-appointed expert issued a report dated 4 May 2020 by which it noted, in addition to a number of physical diseases, a significant reduction of mental capacities. Nevertheless, the applicant’s requests were rejected, and the extension of the special regime confirmed.

Meanwhile, the applicant also filed several requests to the Milan Court responsible for the execution of sentences, asking that the court order an independent expertise on his state of health and that, as a consequence, the detention in prison be replaced with home detention. The Milan Court, by decisions subsequently confirmed by the Court of cassation, rejected all such requests relying on the reports issued by the medical services operating in prison.

Relying on Articles 2, 3 and 8, the applicant complains of the incompatibility of his state of health with the continued detention in prison, as aggravated by the application of the Section 41 bis regime, and of the unjustified extension of the latter.

QUESTIONS TO THE PARTIES

In view of the applicant’s physical and mental health and the report issued on 4 May 2020 by the expert appointed by the Rome Court responsible for the execution of sentences ( tribunale di sorveglianza ), has there been a breach of the applicant’s rights under Article 3 of the Convention? In particular:

(a) was the applicant’s detention compatible with his state of health (see Enea v. Italy [GC], no. 74912/01, § 59, ECHR 2009, and Dorneanu v. Romania , no. 55089/13, §§ 77-80, 28 November 2017)?

(b) was the refusal by the Milan Court to appoint an independent medical expert in compliance with the State’s positive obligations under Article 3 (see Wenner v. Germany , no. 62303/13, § 57, 1 September 2016; Golubar v. Croatia , no. 21951/15, § 43, 2 May 2017; and Farbtuhs v. Latvia , no. 4672/02, § 56, 2 December 2004)? In particular, did the national courts assess all relevant facts concerning the applicant’s request for replacement of detention in prison with less restrictive measures based on health grounds?

(c) did the applicant receive an adequate medical treatment during his detention in prison (see the principles set out by the Court in Blokhin v. Russia [GC], no. 47152/06, §§ 136-37, 23 March 2016)?

(d) taking into account the applicant’s cognitive deterioration, was the extended application of the Section 41 bis special prison regime justified ( Provenzano v. Italy , no. 55080/13, §§ 151-57, 25 October 2018)?

The Government are invited to submit a copy of the applicant’s prison medical register ( diario clinico ) along with a typewritten version.