Article 41-bis prison regime

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).

History

Article 41-bis was introduced in 1975 (Prison Administration Act, Law no. 354 of 26 July 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. In February 1991, the then Italian Ministry of Interior Vincenzo Scotti referred to the Ministry of Grace and Justice Claudio Martelli 23 exponents of the mafia would be released and enabled to return to their affairs in Palermo. To prevent that risk, the Italian government met during the night and approved a restrictive authentic interpretation of the norm.{{cite web| url =https://rep.repubblica.it/pwa/intervista/2020/05/07/news/martelli-255970996/ | author= Concetto Vecchio| language= it | website= La Repubblica | date =May 7, 2020 | title = Martelli: " Ho suggerito io a Bonafede il piano per riportare i boss in carcere, ma il mio decreto anti-mafiosi era un'altra cosa" | trans-title = Martelli: "I've suggested to [Alfonso] Bonafede to pur again the boss in prison, but my anti-mafia decree was another thing" | archive-url= https://archive.today/20200902120102/https://rep.repubblica.it/pwa/intervista/2020/05/07/news/martelli-255970996/ | archive-date= September 2, 2020 | url-status =live}}

On 8 June 1992, after the killing on 23 May of judge Giovanni Falcone by the Corleonesi clan of the Sicilian Mafia in the Capaci bombing, the regime was modified (confirmed in Law no. 356 of 7 August 1992).

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.

Luigi Manconi, senator and president of the Human Rights Commission, criticised the regime in 2015. Lawyers for imprisoned Red Brigades militant Nadia Lioce commented that after two decades in 41-bis and because of the restrictions, she had only spoken to visitors for 15 hours over the course of one year.

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 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 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. Immigration and Customs Enforcement successfully appealed the ruling.

European Court of Human Rights

On 27 November 2007, the European Court of Human Rights held that the application of the 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 Calabrian crime syndicate 'Ndrangheta, who is serving a life sentence for murder. In the case Enea vs. Italy on 17 September 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.

Alfredo Cospito

Alfredo Cospito, an Italian anarchist, began a hunger strike against his incarceration under the 41-bis regime in 2022. By the end of January 2023, he had reached over 100 days without food and Amnesty International made an appeal based on violations of his human rights. This led to coverage in the global mainstream media about debates over the efficacy of 41-bis. Attacks on diplomatic offices in Argentina, Bolivia, Germany, Greece, Portugal, Spain, and Switzerland were made as solidarity actions, and in response the Foreign Minister Antonio Tajani said security was being heightened at all missions. The Supreme Court of Cassation initially rejected Cospito's appeal against his prison conditions, then set a hearing date for 24 February 2023.

References

References

1. [http://www.uncjin.org/Documents/10thcongress/10cStatements/italy4e.pdf Long Distance Proceedings Through Videoconference: The Italian Experience] {{webarchive. link. (June 11, 2007 , Ministry of Justice (Italy) at the Tenth [[United Nations Congress on the Prevention of Crime and the Treatment of Offenders]], Vienna, April 10–11, 2000)
2. (20 April 2010). "Response of the Italian Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Italy". [[Council of Europe]].
3. [http://www.juristras.eliamep.gr/wp-content/uploads/2008/09/italy.pdf Strasbourg court jurisprudence and human rights in Italy: An overview of litigation, implementation and domestic reform] {{webarchive. link. (July 21, 2011 , Juristras State of the Art Report by Marcello Flores, Anna Cesano & Sara Valentina Di Palma, University of Siena)
4. Jamieson, ''The Antimafia'', p. 45-46
5. [http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=75488&sessionId=32992496&skin=hudoc-en&attachment=true Case of Enea v. Italy], Grand Chamber, European Court of Human Rights, 17 September 2009
6. link. (14 August 2014 , The Florentine, 24 May 2012))
7. 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.[http://www.unhcr.org/refworld/docid/3edb47d8c.html Amnesty International Report 2003 - Italy], Amnesty International, May 28, 2003
8. (5 November 2015). "Luigi Manconi: "Con 41 bis tanti diritti violati"". L'Espresso.
9. [https://news.bbc.co.uk/2/hi/europe/2117709.stm Jailed Mafia bosses refuse food], BBC News, July 9, 2007
10. [http://news.independent.co.uk/europe/article183791.ece Mafiosi spread news of jail protest over law that stops them talking]{{dead link. (August 2021)
11. [https://news.bbc.co.uk/2/hi/europe/2131332.stm Mafia strike leaves Italy cold], BBC News, July 16, 2002
12. [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
13. [http://news.independent.co.uk/europe/article3067243.ece Fears of torture for Italian gangster] {{webarchive. link. (October 17, 2007 , The Independent, October 17, 2007)
14. Italy condemned for tough jail conditions, ANSA, January 16, 2008
15. (October 2016)
16. %20v%20. (October 2016)
17. (24 January 2023). "Amnesty in fresh appeal for jailed anarchist head Cospito - English". ANSA.
18. (31 January 2023). "Alfredo Cospito: Hunger-striking Italian anarchist moved amid protests". BBC News.
19. (25 January 2023). "Anarchist Cospito appeal to high court set in 3 mts time". ANSA.
20. (30 November 2022). "Huelgas de hambre contra el régimen de aislamiento del preso anarquista Alfredo Cospito en Italia". El Salto.
21. (31 January 2023). "Italy on alert amid anarchist attacks on diplomatic missions". AP NEWS.
22. (2 February 2023). "La Corte di Cassazione ha anticipato al 24 febbraio l'udienza sul ricorso di Alfredo Cospito contro il 41-bis". Il Post.