CASE OF CIRINO AND RENNE v. ITALY
Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)
Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Ksenija Turković
6. The first applicant was born in 1978 and lives in Turin. The second applicant was born in 1975 and was detained in Turin up to the time of his death on 10 January 2017. 7. In 2004 the applicants were detained in the Asti Correctional Facility. 8. On 10 December 2004 the second applicant intervened in a fight that had broken out between the first applicant and a prison officer. 9. The manner in which the impugned events occurred, as submitted by the applicants and as it emerges from their witness statements during the domestic proceedings, may be summarised as follows. 10. On 10 December 2004, following an altercation with the prison officer, the first applicant was summoned to a meeting with the correctional unit commander (comandante di reparto della polizia penitenziaria). Before he reached the commander’s office, he was stopped by a group of prison officers, who took turns beating him. Following the meeting, he was stripped of his clothes and led to a cell in the solitary confinement wing. 11. The only item of furniture in the cell was a bed with no mattress, bed linen or covers. As to sanitary facilities, the cell had a squat toilet without running water and was not equipped with a sink. The cell window had no window panes and the only source of heating was a small, malfunctioning radiator, which provided little protection against the December weather. For a number of days, although it is unclear for how many exactly, he was left naked. 12. During the first week of his detention in solitary confinement no food was provided and he was given only scant amounts of water. He was subsequently given rationed quantities of food. 13. He was beaten on a daily basis, several times per day. He was repeatedly punched, kicked and hit in the head by prison officers, who assaulted him in groups of varying sizes. 14. He was also subjected to sleep deprivation, as the beatings often took place at night and the prison officers verbally abused him in order to keep him awake. 15. During the detention in solitary confinement the applicant did not receive visits from his lawyer or his family. 16. On 10 December 2004, following the same altercation with the prison officer, the second applicant was stripped of his clothes and led to a cell in the solitary confinement wing of the correctional facility. The bed in the cell had no mattress, sheets or covers, and the cell had no sink. Initially there were no panes in the windows, which were covered with some plastic sheeting after an unspecified number of days. For a number of days, although it is unclear for how many exactly, he was left naked. He was subsequently given some light clothing. 17. The applicant’s food was rationed, and at certain times he was given only bread and water. On some days he received no food at all. 18. The applicant was beaten by prison officers, often more than once per day. He was subjected to various forms of physical violence, including being repeatedly punched, kicked and slapped, at one point with his head being pinned to the ground by one of the prison officers’ boots. The beatings occurred both during the day and at night. The applicant was beaten by four or five officers at a time. One prison officer ripped out a chunk of his hair. 19. On 16 December 2004 he was admitted to the hospital. 20. During the period he spent in solitary confinement he was only allowed outside the cell twice, once to shower and once for some outdoor time. 21. A criminal investigation into the impugned treatment was launched in 2005. It was initiated when it emerged, in the context of covert surveillance in an operation to investigate drug smuggling in the Asti correctional facility, that a number of the prison officers had discussed the ill-treatment inflicted on the applicants. 22. On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged with ill-treatment of the applicants under Article 572 of the Italian Criminal Code (“the Criminal Code”), in conjunction with Article 61 § 9 of the Criminal Code, a provision which considers the commission of an offence by a civil servant abusing his or her position to be an aggravating circumstance. 23. On the same date the applicants joined the proceedings as civil parties. 24. The Asti District Court’s judgment was delivered on 30 January 2012. Its findings may be summarised as follows. 25. As to the establishment of the facts concerning the ill-treatment, the court found that the evidence gathered during the investigation and produced at the trial showed that the events had occurred in the manner described by the victims in their submissions during the trial. The Court relied on statements to the effect that the applicants had been subjected to physical and verbal abuse, coupled with the deprivation of food, water, sleep, and clothing, and had been detained in cells without adequate access to sanitation, heating, and bedding. 26. The court further found it to be established beyond reasonable doubt that the applicants had been subjected not merely to isolated acts of harassment and abuse, but to repeated ill-treatment which had been put into practice in a systematic manner. 27. More specifically, the court found it established beyond reasonable doubt that the first and second applicants had been subjected to repeated physical violence from 10 to 29 December 2004 and from 10 to 16 December 2004 respectively. The court found that the beatings occurred regularly at all times of the day, and particularly at night. 28. The court noted that the second applicant had been admitted to the emergency room of the Asti Civil Hospital on 16 December 2004 with traumatic injuries. With regard to the first applicant, the court acknowledged his hospitalisation following the events without citing a date or specific medical documentation to this effect. 29. Moreover, the court found it to be established beyond reasonable doubt that in 2004 and 2005 in the Asti Correctional Facility there had existed what it defined as a “generalised practice of ill-treatment” that had been systematically inflicted on prisoners considered to be problematic. Measures which the court defines as exceeding the bounds of permitted disciplinary or security measures were routinely taken to punish and intimidate problematic detainees and to deter other disorderly behaviour. As part of this practice, a detainee would generally be taken to a cell in the solitary confinement unit where he would be subjected to repeated harassment and abuse by prison officers. The abuse would primarily take the form of physical violence, as detainees would be beaten by groups of prison officers, often during the night. In addition, detainees would be routinely subjected to sleep, food and water deprivation, and would also be denied access to sanitary facilities. 30. The court further found ample evidence that the prison officers operated in a climate of impunity. This was due, in the court’s view, to the acquiescence of high-level prison administrators and the complicity that existed among prison officers. 31. It emerges that the court ordered an inspection of the correctional facility, including the solitary confinement wing, during the course of the trial. The court found that several cells in the solitary confinement wing of the Asti Correctional Facility were unfit for holding detainees. Some did not have bed linen, mattresses, sanitary facilities or heating. Although the windows in some cells had no panes and others had windows covered by metal plates with small perforations, the cells were nonetheless used during the winter months. Some cells were equipped with a bed and a squat toilet but no other furniture or sanitary facilities. 32. Following the establishment of the facts, the court went on to assess responsibility for the established conduct. In this regard, G.S. was acquitted as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted of the charge of ill-treatment under Article 572 of the Criminal Code. The court nonetheless held that the conduct of A.D. and D.B. amounted to infliction of bodily harm contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings against them be discontinued due to the expiry of the applicable time-limit as laid down in the statute of limitations. 33. With respect to C.B. and M.S., the court held that there existed sufficient evidence to conclude that they had been responsible for most, if not all, of the acts of physical, psychological, and “material” abuse at issue. The court then considered that the acts at issue could be classified as torture pursuant to the definition provided by the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went on to observe that Italy had failed to incorporate the offence of torture into national legislation, in breach of its international obligations. It was therefore obliged to conclude that, under Italian law, there existed no legal provision that would allow it to classify the impugned conduct as acts of torture. 34. Having taken note of the above-mentioned considerations, the court proceeded to assess which existing offence was more suitable in respect of the legal classification of C.B. and M.S.’s conduct. When conducting its assessment, the court relied on the conclusion that the primary purpose of the impugned treatment was to punish the applicants, to “maintain order” in the correctional facility, and to convey a clear message to the other detainees. 35. The court considered that the conduct of the two prison officers thus fell most appropriately within the scope of Article 608 of the Criminal Code, which deals with abuse of authority against arrested or detained persons. However, the statutory limitation period for the offence in question had elapsed, as the court had found no procedural action which would have the effect of interrupting it. The court stated that C.B. and M.S. were also responsible for the infliction of bodily harm, but that, as the statute of limitations was applicable to that offence as well, such a finding did not alter the substance of the decision. The court therefore ordered that the proceedings against C.B. and M.S be discontinued because the applicable time-limit as laid down in the statute of limitations had expired. 36. On 22 February 2012 the public prosecutor lodged an appeal with the Court of Cassation, arguing that the Asti District Court had erred in the legal classification of the offence with respect to C.B. and M.S. The prosecutor contended that the most appropriate offence for the purposes of classification of the conduct in question would have been aggravated illtreatment under Article 572 of the Italian Criminal Code ‒ as initially identified in the bill of indictment ‒ in conjunction with Article 608 of the Criminal Code. 37. By a judgment issued on 21 May 2012, and filed with the court Registry on 27 July 2012, the Court of Cassation declared the public prosecutor’s application inadmissible. The court expressed its agreement with the prosecutor’s contention as a matter of principle but, as the statute of limitations had been likewise applicable to the offence of aggravated illtreatment, a decision in favour of the prosecution would have been devoid of any practical effect. 38. On 26 July 2012 C.B. lodged an objection to execution (incidente d’esecuzione) with the Asti District Court, arguing that its decision of 30 January 2012 (see paragraph 24 above) could not be considered as final and binding insofar as he was concerned, as the decision had not been properly served on him. 39. In a decision issued on 31 October the Asti District Court dismissed C.B.’s objection on the grounds that C.B. must have had cognisance of the decision at the moment the public prosecutor lodged an appeal with the Court of Cassation (see paragraph 36 above) or, at the latest, when his representative filed a defence brief at a hearing before the Court of Cassation in May 2012. 40. On 26 July 2012 C.B. appealed against the decision before the Court of Cassation. 41. In a judgment delivered on 11 July 2013, and filed with the Registry on 1 August 2013, the Court of Cassation granted the appeal. It found that the failure to serve the decision on C.B. could not be remedied by C.B.’s potential knowledge of the decision at a later stage, as argued by the District Court. The Asti District Court judgment of 30 January 2012 could not, accordingly, be considered final and binding insofar as C.B. was concerned. 42. Based on the latter decision, on 10 October 2013 C.B. lodged an appeal against the Asti District Court judgment of 30 January 2012 with the Turin Court of Appeal, seeking an acquittal. 43. No further information has been provided by the parties as to the outcome of the proceedings. 44. In their observations of 31 March 2016, the Government indicated that four prison officers had undergone disciplinary proceedings in connection with the impugned events and by different decisions issued on 29 January 2013 the following disciplinary sanctions had been imposed: – C.B. was dismissed from his functions (destituito dal servizio). He was, however, reinstated on 26 November 2013, following the Court of Cassation judgment of 11 July 2013 which suspended the binding nature of the Asti District Court’s judgment (see paragraph 41 above); – M.S. was dismissed from his functions; – A.D. was suspended from duty for a period of 4 months; – D.B. was suspended from duty for a period of 6 months. 45. According to a document issued by the Staff Director of the Prison Administration Department of the Ministry of Justice on 12 October 2015, and furnished by the Government, the four prison officers were not suspended from duty (sospensione precauzionale dal servizio) during the course of the investigation or the trial. 46. At the Court’s request, the Government submitted extracts from the prison medical record of the second applicant between 26 November 2004 and 5 March 2005 and typed copies of his hospitalisation record of 16 December 2004. 47. The prison medical record indicates that on 13 December 2004 the second applicant was examined visually (whilst still “behind bars”). He complained of pain in the thoracic area and right ear. The reporting physician noted the presence of ecchymoses and haematomas around the patient’s ribcage. He recommended a more thorough medical examination and/or transfer to the infirmary. 48. The record further indicates that another visual examination (also “behind bars”) took place on 15 December 2004. The information in this entry is the same as in the previous entry. Transfer to the infirmary for a medical examination was recommended. 49. On 15 December 2004 the record shows that the applicant underwent a medical examination in the afternoon. The physician reported ecchymoses on the patient’s ribcage and in the retroauricular region. Palpation of the patient revealed diffuse pain. The reporting physician recommended that Xrays be performed for a suspected fracture. Painkillers were administered. 50. The entry of 16 December 2004 reports the applicant’s transfer to the emergency room of the Asti Civil Hospital as a consequence of traumatic injury. 51. According to the medical record of the Asti Civil Hospital, an X-ray revealed a fractured rib and the medical examination disclosed diffuse bruising in the thoracic and abdominal area and pain on palpation. The record states that the applicant told the doctor his injuries occurred as a consequence of an accidental fall. 52. The prison medical record entry on the applicant’s discharge from the hospital on 16 December 2004 shows that he was prescribed painkillers. 53. As to the first applicant, no copy of the prison medical register had been submitted by the Government, notwithstanding the Court’s request for such information.