Article 41-bis prison regime
Encyclopedia
In Italian law, Article 41-bis of the Prison Administration Act is a provision that allows the Minister of Justice or the Minister of the Interior to suspend certain prison regulations. Currently it is used against people imprisoned for particular crimes: Mafia
involvement; drug-trafficking; homicide; aggravated robbery and extortion; kidnapping; importation, buying, possession or cession of huge amounts of drugs; and crimes committed for terrorism or for subversion of the constitutional system. 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.
by the Mafia
, it was modified (confirmed in Law no. 356 of August 7, 1992) and 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
, 400 imprisoned Mafia bosses were transferred by helicopter and military transport aircraft from Palermo
’s Ucciardone prison to top security prisons on the mainland at Ascoli Piceno
and Cuneo
, and to the island prisons of Pianosa
and Asinara
, where the severity of the 41-bis regime was accentuated by geographical remoteness.
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
(CPT) 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
(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
has expressed concern that the 41 bis regime could in some circumstances amount to "cruel, inhumane or degrading treatment" for prisoners.
proposal to extend the measure. Apart from refusing prison food, the inmates had been constantly banging the metalwork of their cells. After the protest began in Marina Picena prison in central Italy – the prison's inmates include Salvatore Riina
, 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 jails had joined in.
According to a Los Angeles judge 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 his ruling on the United Nations Convention Against Torture
.
held that the application of so-called 41 bis regime breached two articles of the European Convention on Human Rights, 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, who is serving a life sentence for murder. 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.
Mafia
The Mafia is a criminal syndicate that emerged in the mid-nineteenth century in Sicily, Italy. It is a loose association of criminal groups that share a common organizational structure and code of conduct, and whose common enterprise is protection racketeering...
involvement; drug-trafficking; homicide; aggravated robbery and extortion; kidnapping; importation, buying, possession or cession of huge amounts of drugs; and crimes committed for terrorism or for subversion of the constitutional system. 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
Surveillance court
In Italy, the Surveillance Magistracy is a distinct branch of the Italian judiciary, with a specialized competence over the supervision of detainees and prisons....
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:- a ban on the use of the telephone;
- a ban on all association or correspondence with other prisoners;
- a ban on meetings with third parties;
- restrictions on visits from members of the family (once per month and visitors are only allowed to communicate by intercom through thick glass);
- a ban on receiving or sending sums of money over a set amount;
- a ban on receiving parcels (other than those containing linen) from the outside;
- a ban on organising cultural, recreational or sporting activities;
- a ban on voting or standing in elections for prisoner representatives;
- a ban on taking part in arts-and-crafts activities, etc.
History
Article 41-bis was introduced in 1975 (Prison Administration Act, Law no. 354 of July 26, 1975) as an emergency measure to deal with prison unrest and revolts during the years of lead , characterized by widespread social conflicts and terrorism acts carried out by extra-parliamentary movements. On June 8, 1992, after the killing of judge Giovanni FalconeGiovanni Falcone
Giovanni Falcone was an Sicilian/Italian prosecuting magistrate born in Palermo, Sicily. From his office in the Palace of Justice in Palermo, he spent most of his professional life trying to overthrow the power of the Mafia in Sicily...
by the Mafia
Mafia
The Mafia is a criminal syndicate that emerged in the mid-nineteenth century in Sicily, Italy. It is a loose association of criminal groups that share a common organizational structure and code of conduct, and whose common enterprise is protection racketeering...
, it was modified (confirmed in Law no. 356 of August 7, 1992) and 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 Borsellino
Paolo Borsellino was an Italian anti-Mafia magistrate who was killed by a Mafia car bomb in Palermo, less than two months after his fellow anti-Mafia magistrate Giovanni Falcone had been assassinated....
, 400 imprisoned Mafia bosses were transferred by helicopter and military transport aircraft from Palermo
Palermo
Palermo is a city in Southern Italy, the capital of both the autonomous region of Sicily and the Province of Palermo. The city is noted for its history, culture, architecture and gastronomy, playing an important role throughout much of its existence; it is over 2,700 years old...
’s Ucciardone prison to top security prisons on the mainland at Ascoli Piceno
Ascoli Piceno
Ascoli Piceno is a town and comune in the Marche region of Italy, capital of the province of the same name. Its population is c. 51,400.-Geography:...
and Cuneo
Cuneo
Cuneo is a city and comune in Piedmont, Northern Italy, the capital of the province of Cuneo, the third largest of Italy’s provinces by area...
, and to the island prisons of Pianosa
Pianosa
The small island of Pianosa , about in area, forms part of Italy's Tuscan Archipelago. Its name comes from the Italian pianura . Its highest point stands above sea level. Pianosa is part of the Elba island municipality. On clear days, Elbans see Pianosa as a dark blue line over the lighter blue sea...
and Asinara
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 one man. The island is located off the north-western...
, where the severity of the 41-bis regime was accentuated by geographical remoteness.
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
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 is the anti-torture committee of the Council of Europe...
(CPT) 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(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
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
has expressed concern that the 41 bis regime could in some circumstances amount to "cruel, inhumane or degrading treatment" for prisoners.
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 CommissionAntimafia Commission
The Italian Antimafia Commission is a bicameral commission of the Italian Parliament, composed of members from the Chamber of Deputies and the Senate . The Antimafia Commission is a commission of inquiry into, initially, the “phenomenon of the Mafia”...
proposal to extend the measure. Apart from refusing prison food, the inmates had been constantly banging the metalwork of their cells. After the protest began in Marina Picena prison in central Italy – the prison's inmates include Salvatore Riina
Salvatore Riina
Salvatore "Totò" Riina is a member of the Sicilian Mafia who became the most powerful member of the criminal organization in the early 1980s. Fellow mobsters nicknamed him The Beast due to his violent nature, or sometimes The Short One due to his diminutive stature...
, 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 jails had joined in.
According to a Los Angeles judge 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 his ruling on the United Nations Convention Against Torture
United Nations Convention Against Torture
The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international human rights instrument, under the review of the United Nations, that aims to prevent torture around the world....
.
European Court of Human Rights
On November 27, 2007, the European Court of Human RightsEuropean Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
held that the application of so-called 41 bis regime breached two articles of the European Convention on Human Rights, 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, who is serving a life sentence for murder. 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.
External links
- European ParliamentEuropean ParliamentThe European Parliament is the directly elected parliamentary institution of the European Union . Together with the Council of the European Union and the Commission, it exercises the legislative function of the EU and it has been described as one of the most powerful legislatures in the world...
. 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. L'Europa condanna il "41 bis", Antimafia Duemila, January 8, 2008 "Il 41 bis equivale a una tortura", TG3, October 15, 2007