In
Italian law
Italian(s) may refer to:
* Anything of, from, or related to the people of Italy over the centuries
** Italians, an ethnic group or simply a citizen of the Italian Republic or Italian Kingdom
** Italian language, a Romance language
*** Regional Ita ...
, Article 41-bis of the Prison Administration Act, also known as carcere duro ("hard prison regime"), is a provision that allows the
Minister of Justice
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a v ...
or the
Minister of the Interior
An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...
to suspend certain prison regulations. Currently it is used against people imprisoned for particular crimes:
Mafia
"Mafia" is an informal term that is used to describe criminal organizations that bear a strong similarity to the original “Mafia”, the Sicilian Mafia and Italian Mafia. The central activity of such an organization would be the arbitration of d ...
-type association under 416-bis (''Associazione di tipo mafioso''),
drug trafficking
A drug is any chemical substance that causes a change in an organism's physiology or psychology when consumed. Drugs are typically distinguished from food and substances that provide nutritional support. Consumption of drugs can be via insuffla ...
,
homicide
Homicide occurs when a person kills another person. A homicide requires only a volitional act or omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no inten ...
,
aggravated robbery and
extortion
Extortion is the practice of obtaining benefit through coercion. In most jurisdictions it is likely to constitute a criminal offence; the bulk of this article deals with such cases. Robbery is the simplest and most common form of extortion, ...
,
kidnapping
In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the p ...
,
terrorism
Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
, and attempting to subvert the constitutional system.
[Long Distance Proceedings Through Videoconference: The Italian Experience]
, Ministry of Justice (Italy) at the Tenth , Vienna, April 10–11, 2000 It is suspended only when a prisoner co-operates with the authorities, when a court annuls it, or when a prisoner dies. The
Surveillance Court of Rome is the court competent on nationwide level on appeals against the 41-bis decree.
Restrictive measures
The system was essentially intended to cut inmates off completely from their original milieu and to separate them from their former criminal associates. Measures normally include bans on:
*the use of the telephone;
*all association or correspondence with other prisoners;
*meetings with third parties;
*receiving or sending sums of money over a set amount;
*receiving parcels (other than those containing linen) from the outside;
*organising cultural, recreational or sporting activities;
*voting or standing in elections for prisoner representatives; and
*taking part in arts-and-crafts activities, etc.,
as well as restrictions on visits from members of the family (once per month and visitors are only allowed to communicate by intercom through thick glass).
[Strasbourg court jurisprudence and human rights in Italy: An overview of litigation, implementation and domestic reform]
, Juristras State of the Art Report by Marcello Flores, Anna Cesano & Sara Valentina Di Palma, University of Siena[Jamieson, ''The Antimafia'', p. 45-46]
History
Article 41-bis was introduced in 1975 (Prison Administration Act, Law no. 354 of 26 July 1975)
[Case of Enea v. Italy]
Grand Chamber, European Court of Human Rights, 17 September 2009 as an emergency measure to deal with prison unrest and revolts during the
years of lead ( it, anni di piombo), characterized by widespread social conflicts and terrorism acts carried out by extra-parliamentary movements.
In February 1991, the then Italian Ministry of Interior
Vincenzo Scotti
Vincenzo Scotti (born 16 September 1933) is an Italian politician and member of Christian Democracy (Italy), Christian Democracy (DC). He was Italian Minister of the Interior, Minister of the Interior and Italian Minister of Foreign Affairs, Mini ...
referred to the Ministry of Grace and Justice
Claudio Martelli
Claudio Martelli (born 24 September 1943) is an Italian politician. He was the right-hand man of Bettino Craxi, the socialist Prime Minister from 1983–1987.
Biography
Martelli was born at Gessate, in the province of Milan.
He graduated in Phi ...
23 exponents of the ''mafia'' would be released and enabled to return to their affairs in
Palermo
Palermo ( , ; scn, Palermu , locally also or ) is a city in southern Italy, the capital (political), capital of both the autonomous area, autonomous region of Sicily and the Metropolitan City of Palermo, the city's surrounding metropolitan ...
. To prevent that risk, the Italian government met during the night and approved a restrictive authentic interpretation of the norm.
On 8 June 1992, after the killing on 23 May of judge
Giovanni Falcone
Giovanni Falcone (; 18 May 1939 – 23 May 1992) was an Italian judge and prosecuting magistrate. From his office in the Palace of Justice in Palermo, Sicily, he spent most of his professional life trying to overthrow the power of the Sicilian ...
by the
Corleonesi clan of the
Sicilian Mafia
The Sicilian Mafia, also simply known as the Mafia and frequently referred to as Cosa nostra (, ; "our thing") by its members, is an Italian Mafia-terrorist-type organized crime syndicate and criminal society originating in the region of Sicily a ...
in the
Capaci bombing
The Capaci bombing ( it, Strage di Capaci) was a terror attack by the Sicilian Mafia that took place on 23 May 1992 on Highway A29, close to the junction of Capaci, Sicily. It killed magistrate Giovanni Falcone, his wife Francesca Morvillo ...
, the regime was modified (confirmed in Law no. 356 of 7 August 1992).
[The new article stipulated that restrictive measures could be implemented when there was "serious concern over the maintenance of order and security." The aim was to prevent association, and therefore the exchange of messages, between Mafia prisoners and to break the chain of command between Mafia bosses and their subordinates.][
In the days following the killing of Falcone's colleague ]Paolo Borsellino
Paolo Emanuele Borsellino (; scn, Pàulu Borsellino; 19 January 1940 – 19 July 1992) was an Italian judge and prosecuting magistrate. From his office in the Palace of Justice in Palermo, Sicily, he spent most of his professional life trying t ...
in the ''via D'Amelio bombing
The via D'Amelio bombing ( it, Strage di via D'Amelio) was a terrorist attack by the Sicilian Mafia, which took place in Palermo, Sicily, Italy, on 19 July 1992. It killed Paolo Borsellino, the anti-mafia Italian magistrate, and five members of ...
'' on 19 July 1992, 400 imprisoned Mafia bosses were transferred by helicopter and military transport aircraft from Palermo
Palermo ( , ; scn, Palermu , locally also or ) is a city in southern Italy, the capital (political), capital of both the autonomous area, autonomous region of Sicily and the Metropolitan City of Palermo, the city's surrounding metropolitan ...
’s Ucciardone prison to top-security prisons on the mainland at Ascoli Piceno
Ascoli Piceno (; la, Asculum; dialetto ascolano: Ascule) is a town and ''comune'' in the Marche region of Italy, capital of the province of the same name. Its population is around 46,000 but the urban area of the city has more than 93,000.
Geo ...
and Cuneo
Cuneo (; pms, Coni ; oc, Coni/Couni ; french: Coni ) is a city and ''comune'' in Piedmont, Northern Italy, the capital of the province of Cuneo, the fourth largest of Italy’s provinces by area.
It is located at 550 metres (1,804 ft) in ...
, and to the island prisons of Pianosa
Pianosa () is an island in the Tuscan Archipelago in the Tyrrhenian Sea, Italy. It is about in area, with a coastal perimeter of .
Geography
In Roman times the island was named ''Planasia'' (plain) because of its flatness – its highest poin ...
and Asinara
Asinara is an Italian island of in area. The name is Italian for "donkey-inhabited", but it is thought to derive from the Latin "sinuaria", and meaning sinus-shaped. The island is virtually uninhabited. The census of population of 2001 lists o ...
, where the severity of the 41-bis regime was accentuated by geographical remoteness.[ After Mafia boss ]Salvatore Riina
Salvatore Riina (; 16 November 1930 – 17 November 2017), called (, Totò being the diminutive of Salvatore), was an Italian mobster and chief of the Sicilian Mafia, known for a ruthless murder campaign that reached a peak in the early 1990s ...
was captured in January 1993, numerous terror attacks were ordered as warning to its members to not turn state's witness
In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. In law a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, e ...
, but also in response for the overruling of 41-bis system.The Olive Tree of Peace: The massacre in via dei Georgofili
, The Florentine, 24 May 2012)
Over the years, the 41-bis system has gradually been relaxed, in response to domestic court decisions or the European Committee for the Prevention of Torture
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or shortly Committee for the Prevention of Torture (CPT) is the anti-torture committee of the Council of Europe. Founded to enforce the Europe ...
(CBT) recommendations to ensure appropriate contacts and activities for prisoners subject to that regime. When first implemented, section 41-bis also empowered the Minister of Justice to censor all of a prisoner’s correspondence, including that with lawyers and organs of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
(ECHR). The Court affirmed that under the exceptional regime of art. 41-bis there is an unlawful interference with the right to correspondence ex art. 8 of ECHR, since restrictions to constitutional rights can be determined only by means of a reasoned judicial decision and never by means of a Ministerial Decree.[
In 2002, the measure became a permanent fixture in the penal code. ]Amnesty International
Amnesty International (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...
has expressed concern that the 41 bis regime could in some circumstances amount to "cruel, inhumane or degrading treatment" for prisoners.[Amnesty International Report 2003 - Italy]
Amnesty International, May 28, 2003[
]
Mafia protests
In June 2002, some 300 Mafia prisoners declared a hunger strike, calling for an end to the isolation conditions and objecting to parliament's Antimafia Commission The Italian parliamentary Antimafia Commission ( it, Commissione parlamentare antimafia) is a bicameral commission of the Italian Parliament, composed of members from the Chamber of Deputies and the Senate. The first commission, formed in 1963, wa ...
proposal to extend the measure. Apart from refusing prison food, the inmates had been constantly banging the metalwork of their cells.[Jailed Mafia bosses refuse food]
BBC News, July 9, 2007[Mafiosi spread news of jail protest over law that stops them talking]
The Independent, July 11, 2002[Mafia strike leaves Italy cold]
BBC News, July 16, 2002 After the protest began in Marina Picena
A marina (from Spanish , Portuguese and Italian : ''marina'', "coast" or "shore") is a dock or basin with moorings and supplies for yachts and small boats.
A marina differs from a port in that a marina does not handle large passenger ships o ...
prison in central Italy – the prison's inmates include Salvatore Riina
Salvatore Riina (; 16 November 1930 – 17 November 2017), called (, Totò being the diminutive of Salvatore), was an Italian mobster and chief of the Sicilian Mafia, known for a ruthless murder campaign that reached a peak in the early 1990s ...
, the reputed "boss of bosses" – it spread rapidly across the country, in spite of inmates supposedly having no way to contact one another. Mobsters of different ranks in eight prisons had joined in.[
According to American immigration judge Darcy Sitgraves in October 2007, the 41-bis prison regime was designed to physically and psychologically compel criminals to reveal information about the Sicilian Mafia and constituted "coercion … not related to any lawfully imposed sanction or punishment, and thus constitutes torture." The judge based her ruling on the ]United Nations Convention Against Torture
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention Against Torture (UNCAT)) is an international human rights treaty under the review of the United Nation ...
.[Suspected mob figure won't be returned to Italy]
Los Angeles Times, October 15, 2007[Fears of torture for Italian gangster]
, The Independent, October 17, 2007 Immigration and Customs Enforcement successfully appealed the ruling.
European Court of Human Rights
On November 27, 2007, the European Court of Human Rights
The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that a ...
held that the application of the ''41-bis'' regime breached two articles of the European Convention on Human Rights
The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
, namely Article 6 § 1 (right to a fair hearing), and Article 8 (right to respect for private and family life). The court did not find against the regime as a whole, but re-affirmed the right to uncensored correspondence with lawyers and human-rights groups. The ruling was in response to a suit filed by Santo Asciutto, a member of the notorious Calabrian crime syndicate 'Ndrangheta
The 'Ndrangheta (, , ) is a prominent Italian Mafia-type organized crime syndicate and secret society, criminal society based in the peninsular and mountainous region of Calabria and dating back to the late 18th century. It is considered one of ...
, who is serving a life sentence for murder.[Italy condemned for tough jail conditions, ANSA, January 16, 2008][Press release]
European Court of Human Rights, November 27, 2007 In the case ''Enea vs. Italy'' on September 17, 2009, the court found that there had been breaches of his right to a fair hearing, and to respect for his correspondence. He was awarded some legal costs but no damages.[, %20v%20, %20italy&sessionid=38072032&skin=hudoc-en Press release Grand Chamber Judgment Enea v. Italy]
European Convention on Human Rights, September 17, 2009
References
*Jamieson, Alison (2000). ''The Antimafia. Italy’s Fight Against Organized Crime'', London: MacMillan Press
External links
* European Parliament
The European Parliament (EP) is one of the legislative bodies of the European Union and one of its seven institutions. Together with the Council of the European Union (known as the Council and informally as the Council of Ministers), it adopts ...
REPORT 24 February 2004
with a proposal for a European Parliament recommendation to the Council on the rights of prisoners in the European Union (2003/2188(INI). Committee on Citizens' Freedoms and Rights, Justice and Home Affairs.
"The Column of Infamy by Pasquale De Feo"
Radio Onda Rossa (Scarceranda), 2010
L'Europa condanna il "41 bis"
Antimafia Duemila, January 8, 2008
"Il 41 bis equivale a una tortura"
TG3, October 15, 2007
{{DEFAULTSORT:Article 41-bis prison regime
Italian criminal law
Antimafia
History of the Sicilian Mafia