GIORGINI v. ITALY
Inadmissible
Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
1. The applicant, Ms Ebe Gigliola Giorgini, is an Italian national, who was born in 1933 and is under house arrest in Marina di Pietrasanta. She was represented before the Court by Mr D. Ammannato, a lawyer practising in Florence. 2. summarised as follows. 3. On 8 April 2008 the applicant was convicted of a number of criminal offences by the Forlì District Court. Such offences included criminal association, aggravated fraud, and ill-treatment. 4. On an unspecified date she lodged an appeal with the Bologna Court of Appeal. 5. On 22 June 2010 the Bologna Court of Appeal partly upheld and partly reversed the District Court’s judgment. The conviction for the offence of criminal association was upheld. 6. On an unspecified date the applicant lodged an appeal on points of law with the Court of Cassation. 7. She states that on 4 July 2011 the President of Second Criminal Section of the Court of Cassation set the hearing for 15 November 2011. 8. On 24 October 2011 the National Criminal Lawyers’ Association (Unione Camere Penali italiane) called a five-day strike, scheduled to run from 14 to 18 November 2011. 9. On 28 October 2011 the applicant filed additional written submissions with the court. 10. On 7 November 2011 the applicant’s counsel formally adhered to the strike and filed a notice to that effect with the Court of Cassation, having obtained the applicant’s consent in writing. For this reason, he was not present at the hearing of 15 November 2011. 11. It appears from the hearing record that the Prosecutor General requested that the Court of Cassation refrain from adjourning the hearing on account of the counsel’s absence. The court granted the prosecutor’s request and the hearing was held as scheduled. 12. In a judgment of 15 November 2011 the Court of Cassation dismissed the applicant’s appeal. 13. On 9 June 2010 the Pistoia preliminary investigations judge ordered that the applicant be placed in pre-trial detention on suspicion that she had committed further offences. These included the offence of criminal association, of which the applicant was suspected of being the leader, promoter and organizer. The applicant was also suspected of having committed the offence of unauthorized practice of medicine. Specifically, she was suspected of providing medical advice and treatment, as well as prescribing drugs to adults and minors, and using her home as an unauthorized medical clinic. She was further suspected of fraud, aggravated by a number of factors including the exploitation of vulnerable individuals’ pain and suffering, and the generation of ill-founded fears from which she profited. The preliminary investigations judge emphasised that the applicant had been previously convicted of similar offences. 14. It appears from the material in the case file that pre-trial detention had been requested on a number of grounds, namely the strong evidence against her, the seriousness of the suspected offences, and the significant risk that she might reoffend. 15. The applicant states that she was transferred to the Sollicciano correctional facility in Florence on 11 June 2010. 16. On 21 July 2010 the applicant’s counsel lodged a request with the Pistoia preliminary investigations judge, seeking the replacement of the applicant’s detention with a more lenient custodial measure, such as house arrest. He argued that both her advanced age and allegedly critical state of health were incompatible with detention in prison. 17. On an unspecified date the judge ordered that she be examined by an independent medical expert with a view to determining whether this was the case. 18. In an order of 30 July 2010 the judge confirmed that the applicant would remain in custody, as the independent medical expert’s report had stated that her state of health was compatible with detention. 19. On 7 August 2010 the applicant lodged an appeal with the Florence District Court on two main grounds. She contended that while under Article 275 § 4 of the Code of Criminal Procedure (see paragraph 37 below) the detention on remand of persons aged over seventy was only allowed if exceptional reasons warranting such a measure existed, in her case no such reasons could be detected. She further reiterated the argument that her advanced age and critical state of health were incompatible with detention in prison, contending that she suffered from life-threatening medical conditions she identified as cardiovascular disease, acute osteoporosis and diabetes. She also highlighted that she had undergone major surgical procedures in the past, including a gastrectomy, mastectomy, and hysterectomy, and suffered from anxiety disorder and glucose intolerance. 20. The Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty (tribunale della libertà e del riesame), dismissed the applicant’s appeal on 1 October 2010. It found that the exceptional grounds for her to be detained on remand, as listed in the preliminary investigation judge’s order of 9 June 2010, still existed. It further pointed out that she had in the past been convicted of analogous offences and had, as soon as she had been released, resumed her criminal activity. As to the applicant’s health, the court drew on the expert medical report requested by the preliminary investigations judge to conclude that there was no incompatibility between it and her detention in a correctional facility. Referring to extracts from the report, the court observed that there was no evidence of an imminent risk of congestive heart failure or other life-threatening conditions, contrary to her contentions. It went on to acknowledge the expert’s finding that she had undergone several major surgical procedures in the past, but that these had allowed for the treatment of serious medical conditions, thus leading to an improvement in her clinical situation. Drawing on the report, it further concluded that the provision of special meals to meet her nutritional needs and the necessary drug therapy could be adequately taken care of in a correctional facility. It appears from the order that the court also examined medical reports submitted by the prosecutor and applicant’s counsel and took the latter into account when reaching its conclusions. 21. On 10 October 2010 the applicant lodged an appeal on points of law with the Court of Cassation. 22. On 1 December 2010 she was committed for trial and the first hearing before the Pistoia District Court was scheduled for 22 March 2011. She was formally charged with all the suspected offences including criminal association, the unlawful practice of medicine, and aggravated fraud (see paragraph 7 above). 23. On 16 February 2011 the Court of Cassation declared the appeal inadmissible. 24. On 4 May 2011 the applicant’s counsel submitted a further request seeking the replacement of the applicant’s detention with house arrest, reiterating the argument that both her advanced age and state of health were incompatible with detention in prison. He relied, inter alia, on a medical certificate issued by the prison doctor on 5 April 2011, in which her clinical condition was described as “complex and multifaceted” and “difficult to manage” in a regular correctional facility. 25. On an unspecified date the Pistoia District Court ordered a new medical examination with a view to assessing the compatibility of her state of health with detention. 26. On 5 May 2011 it dismissed the request for house arrest, having regard to the persistent danger that the applicant might reoffend. However, the court ordered that she be transferred to a correctional hospital (centro clinico penitenziario) in Pisa with a view to ensuring increased medical supervision and the provision of any necessary treatment, and preventing a further deterioration in her health. The court reached its conclusions by relying on a number of findings by the expert, who found that the gastrectomy performed in 1967 had left her with some long-term side effects, including insufficient absorption of calcium and vitamin D. He also noted with some concern that she had experienced height and weight loss and that her osteoporosis had worsened during the months spent in detention. In order to manage her condition effectively and prevent its deterioration, the expert noted that she would require small, frequent meals, a special diet enriched by dietary supplements, and some form of exercise. Finally, he pointed out a slight cerebral atrophy, coupled with a mild anxiety-depressive disorder. 27. On 10 May 2011 the applicant lodged an appeal, reiterating the incompatibility of her age and state of health with any form of detention, even in a correctional hospital. 28. On 20 June 2011 the Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty, placed the applicant under house arrest. It relied on the medical report submitted by the expert to the Pistoia District Court to conclude that an “incompatibility in substance” with detention existed in her case and that a less restrictive measure, such as house arrest, was preferable under the circumstances. 29. It ordered the applicant’s immediate release and set out the specific conditions of her house arrest, including the requirement that she stay in her home at all times, leave only with the authorities’ prior permission, and refrain from contacting or interacting with anyone except her authorised cohabitees and medical staff. 30. On 23 June 2011 the public prosecutor lodged an appeal on points of law with the Court of Cassation. 31. On 19 October 2011 the Court of Cassation declared the appeal inadmissible. 32. On 4 June 2012 the public prosecutor requested that the house arrest be substituted with detention on remand, as the applicant had breached its conditions. He provided evidence that, amongst other things, she had been in contact with several unauthorised individuals including co-defendants in the ongoing criminal proceedings and a number of her “followers” and “admirers”. 33. On an unspecified date the Pistoia District Court ordered a new medical examination with a view to determining whether her state of health was compatible with detention. 34. On 6 July 2012 the Pistoia District Court granted the prosecutor’s request and remanded the applicant in custody, ordering that she be transferred at once to the correctional hospital in Pisa. It found that she had violated the terms of her house arrest, and that the situation which had arisen was conducive to her re-establishing the network which had supported her criminal activity. As to her health, the court drew on the medical report it had requested which stated that adequate monitoring and treatment of her medical conditions, as well as the provision of adequate nutrition in compliance with her special dietary needs, could be carried out in a correctional hospital. In particular, the expert noted that treatment of the applicant’s osteoporosis to prevent future damage to her bone structure would not in any way be hindered by her detention in such a facility. He added that while under house arrest, she had experienced three fractures, suggesting that the monitoring of her condition in a correctional hospital could be in no way considered inferior. 35. On 22 October 2012 the Pisa correctional hospital issued a medical certificate concerning the applicant’s state of health. It described her medical history and the outcome of various specialist consultations she had undergone in the facility in previous months. An orthopaedic specialist had confirmed her advanced osteoporosis and prescribed treatment, a cardiologist had reported good cardiac function, while an ophthalmologist had recommended that she undergo surgery for a cataract in her left eye. The report further contained a recommendation that the applicant undergo a colonoscopy. Concerns were raised regarding the difficulties encountered in the management of treatment and diagnostic tests which had required transporting her to external facilities. Both her cataract surgery and the colonoscopy had to be rescheduled due to the unavailability of police officers who should have escorted her to the external facilities. The doctors concluded that the continued detention of the applicant, albeit in a correctional hospital, could have resulted in the deterioration in her health. 36. On 18 December 2012 the applicant’s counsel submitted a request to the Florence Court of Appeal, seeking the substitution of the detention on remand with house arrest. He reiterated all the arguments raised at first instance and referred to extracts from the report issued by the correctional hospital on 22 October 2012. 37. The request was granted on the same day and the applicant was placed under house arrest. 38. According to the material in the case file, she is currently under house arrest, as the criminal proceedings against her are pending before the Court of Cassation. 39. Article 274 provides that a person may be detained pending trial: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must, on pain of nullity, be expressly set out in the decision, which the judicial authority may take of its own motion...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused...”