Article 41-bis prison regime
The article 41-bis of the
Italian Penitentiary Actallows 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: Mafiainvolvement; 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.cite web|url=http://www.uncjin.org/Documents/10thcongress/10cStatements/italy4e.pdf|title=Long Distance Proceedings Through Videoconference: The Italian Experience|publisher=Ministry of Justice (Italy)|work=Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Vienna|date=10-11 April 2000|format=PDF] It is suspended only when a prisoner co-operates with the authorities, when a court annuls it, or when a prisoner dies.
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. [http://www.eliamep.gr/eliamep/files/Italy.pdf Juristras State of the Art Report. Strasbourg court jurisprudence and human rights in Italy: An overview of litigation, implementation and domestic reform] , by Marcello Flores, Anna Cesano & Sara Valentina Di Palma, University of Siena] Jamieson, "The Antimafia", p. 41-42]
Article 41-bis was introduced in 1975 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. On June 8, 1992, after the killing of judge
Giovanni Falconeby the Mafia, it was modified and the 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 Ucciardoneprison to top security prisons on the mainland at Ascoli Picenoand Cuneo, and to the island prisons of Pianosaand 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 Internationalhas expressed concern that the 41 bis regime could in some circumstances amount to "cruel, inhumane or degrading treatment" for prisoners. [http://www.amnesty.org.ru/web/web.nsf/report2003/ita-summary-eng/$FILE/italy.pdf Amnesty International Report 2003] ]
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 Commissionproposal to extend the measure. Apart from refusing prison food, the inmates had been constantly banging the metalwork of their cells. [http://news.bbc.co.uk/2/hi/europe/2117709.stm Jailed Mafia bosses refuse food] , BBC News, July 9, 2007] [http://news.independent.co.uk/europe/article183791.ece Mafiosi spread news of jail protest over law that stops them talking] , The Independent, July 11, 2002] [http://news.bbc.co.uk/2/hi/europe/2131332.stm Mafia strike leaves Italy cold] , BBC News, July 16, 2002] The protest itself seemed to prove the law's ineffectiveness. After the protest began in Marina Picenaprison 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. [http://www.latimes.com/news/local/la-me-gambino15oct15,1,3089433.story?ctrack=1&cset=true Suspected mob figure won't be returned to Italy] , Los Angeles Times, October 15, 2007] [http://news.independent.co.uk/europe/article3067243.ece Fears of torture for Italian gangster] , The Independent, October 17, 2007]
European Court of Human Rights
November 27, 2007, the European Court of Human Rightscondemned Italy for the tough prison conditions it imposes on its most dangerous criminals, mostly leading organized crime figures. The Strasbourg-based court held unanimously that the so-called 41 bis regime violated two articles of the European Convention on Human Rights. The first was Article 6 § 1 (right to a fair hearing), and the second was Article 8 (right to respect for private and family life). The court's 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. [http://www.lifeinitaly.com/News/news-detailed.asp?newsid=8062 Italy condemned for tough jail conditions] , ANSA, January 16, 2008] [http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=asciutto&sessionid=4744545&skin=hudoc-pr-fr Press release] , European Court of Human Rights, November 27, 2007]
*Jamieson, Alison (2000). "The Antimafia. Italy’s Fight Against Organized Crime", London: MacMillan Press ISBN 0-333-80158-X
*it icon [http://www.antimafiaduemila.com/content/view/1615/78/ L'Europa condanna il "41 bis"] , Antimafia Duemila, January 8, 2008
*it icon [http://news.centrodiascolto.it/view/203161/il_41_bis_equivale_a_una_tortura "Il 41 bis equivale a una tortura"] , TG3, October 15, 2007
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