HOME

TheInfoList



OR:

In Italian law, Article 41-bis of the Prison Administration Act, also known as carcere duro ("hard prison regime"), is a provision that allows the
Minister of Justice A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
or the
Minister of the Interior An interior minister (sometimes called a minister of internal affairs or minister of home affairs) is a cabinet official position that is responsible for internal affairs, such as public security, civil registration and identification, emergency ...
to suspend certain prison regulations. Currently it is used against people imprisoned for particular crimes:
Mafia "Mafia" is an informal term that is used to describe criminal organizations that bear a strong similarity to the original “Mafia”, the Sicilian Mafia and Italian Mafia. The central activity of such an organization would be the arbitration of d ...
-type association under 416-bis (''Associazione di tipo mafioso''),
drug trafficking A drug is any chemical substance that causes a change in an organism's physiology or psychology when consumed. Drugs are typically distinguished from food and substances that provide nutritional support. Consumption of drugs can be via inhalati ...
,
homicide Homicide occurs when a person kills another person. A homicide requires only a volitional act or omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no inten ...
,
aggravated robbery Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the perso ...
and
extortion Extortion is the practice of obtaining benefit through coercion. In most jurisdictions it is likely to constitute a criminal offence; the bulk of this article deals with such cases. Robbery is the simplest and most common form of extortion, ...
,
kidnapping In criminal law, kidnapping is the unlawful confinement of a person against their will, often including transportation/asportation. The asportation and abduction element is typically but not necessarily conducted by means of force or fear: the p ...
,
terrorism Terrorism, in its broadest sense, is the use of criminal violence to provoke a state of terror or fear, mostly with the intention to achieve political or religious aims. The term is used in this regard primarily to refer to intentional violen ...
, and attempting to subvert the constitutional system.Long Distance Proceedings Through Videoconference: The Italian Experience
, 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
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.


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). Strasbourg court jurisprudence and human rights in Italy: An overview of litigation, implementation and domestic reform
, Juristras State of the Art Report by Marcello Flores, Anna Cesano & Sara Valentina Di Palma, University of Siena
Jamieson, ''The Antimafia'', p. 45-46


History

Article 41-bis was introduced in 1975 (Prison Administration Act, Law no. 354 of 26 July 1975)Case of Enea v. Italy
Grand Chamber, European Court of Human Rights, 17 September 2009
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. In February 1991, the then Italian Ministry of Interior
Vincenzo Scotti Vincenzo Scotti (born 16 September 1933) is an Italian politician and member of Christian Democracy (DC). He was Minister of the Interior and Minister of Foreign Affairs. Biography Born in Naples, he graduated in economics at the Università ...
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 Palermo ( , ; scn, Palermu , locally also or ) is a city in southern Italy, the capital of both the autonomous region of Sicily and the Metropolitan City of Palermo, the city's surrounding metropolitan province. The city is noted for its ...
. To prevent that risk, the Italian government met during the night and approved a restrictive authentic interpretation of the norm. On 8 June 1992, after the killing on 23 May of judge
Giovanni Falcone Giovanni Falcone (; 18 May 1939 – 23 May 1992) was an Italian judge and prosecuting magistrate. From his office in the Palace of Justice in Palermo, Sicily, he spent most of his professional life trying to overthrow the power of the Sicilian ...
by the Corleonesi clan of the
Sicilian Mafia The Sicilian Mafia, also simply known as the Mafia and frequently referred to as Cosa nostra (, ; "our thing") by its members, is an Italian Mafia-terrorist-type organized crime syndicate and criminal society originating in the region of Sicily ...
in the Capaci bombing, the regime was modified (confirmed in Law no. 356 of 7 August 1992).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 in the '' via D'Amelio bombing'' on 19 July 1992, 400 imprisoned Mafia bosses were transferred by helicopter and military transport aircraft from
Palermo Palermo ( , ; scn, Palermu , locally also or ) is a city in southern Italy, the capital of both the autonomous region of Sicily and the Metropolitan City of Palermo, the city's surrounding metropolitan province. The city is noted for its ...
’s Ucciardone prison to top-security prisons on the mainland at
Ascoli Piceno Ascoli Piceno (; la, Asculum; dialetto ascolano: Ascule) is a town and ''comune'' in the Marche region of Italy, capital of the province of Ascoli Piceno, province of the same name. Its population is around 46,000 but the urban area of the city h ...
and
Cuneo Cuneo (; pms, Coni ; oc, Coni/Couni ; french: Coni ) is a city and ''comune'' in Piedmont, Northern Italy, the capital of the province of Cuneo, the fourth largest of Italy’s provinces by area. It is located at 550 metres (1,804 ft) in ...
, and to the island prisons of Pianosa and Asinara, where the severity of the 41-bis regime was accentuated by geographical remoteness. After Mafia boss
Salvatore Riina Salvatore Riina (; 16 November 1930 – 17 November 2017), called (, Totò being the diminutive of Salvatore), was an Italian mobster and chief of the Sicilian Mafia, known for a ruthless murder campaign that reached a peak in the early 1990 ...
was captured in January 1993, numerous terror attacks were ordered as warning to its members to not turn state's witness, but also in response for the overruling of 41-bis system.The Olive Tree of Peace: The massacre in via dei Georgofili
, The Florentine, 24 May 2012)
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 (CBT) 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 The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
(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 (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and s ...
has expressed concern that the 41 bis regime could in some circumstances amount to "cruel, inhumane or degrading treatment" for prisoners.Amnesty International Report 2003 - Italy
Amnesty International, May 28, 2003


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.Jailed Mafia bosses refuse food
BBC News, July 9, 2007
Mafiosi spread news of jail protest over law that stops them talking
The Independent, July 11, 2002
Mafia strike leaves Italy cold
BBC News, July 16, 2002
After the protest began in Marina Picena prison in central Italy – the prison's inmates include
Salvatore Riina Salvatore Riina (; 16 November 1930 – 17 November 2017), called (, Totò being the diminutive of Salvatore), was an Italian mobster and chief of the Sicilian Mafia, known for a ruthless murder campaign that reached a peak in the early 1990 ...
, 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 The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention Against Torture (UNCAT)) is an international human rights treaty under the review of the United Nation ...
.Suspected mob figure won't be returned to Italy
Los Angeles Times, October 15, 2007
Fears of torture for Italian gangster
, The Independent, October 17, 2007
Immigration and Customs Enforcement successfully appealed the ruling.


European Court of Human Rights

On November 27, 2007, the
European Court of Human Rights The European Court of Human Rights (ECHR or ECtHR), also known as the Strasbourg Court, is an international court of the Council of Europe which interprets the European Convention on Human Rights. The court hears applications alleging that ...
held that the application of the ''41-bis'' regime breached two articles of the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by ...
, 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 The 'Ndrangheta (, , ) is a prominent Italian Mafia-type organized crime syndicate and secret society, criminal society based in the peninsular and mountainous region of Calabria and dating back to the late 18th century. It is considered one of ...
, who is serving a life sentence for murder.Italy condemned for tough jail conditions, ANSA, January 16, 2008Press release
European Court of Human Rights, November 27, 2007
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., %20v%20, %20italy&sessionid=38072032&skin=hudoc-en Press release Grand Chamber Judgment Enea v. Italy
European Convention on Human Rights, September 17, 2009


References

*Jamieson, Alison (2000). ''The Antimafia. Italy’s Fight Against Organized Crime'', London: MacMillan Press


External links

*
European Parliament The European Parliament (EP) is one of the Legislature, legislative bodies of the European Union and one of its seven Institutions of the European Union, institutions. Together with the Council of the European Union (known as the Council and in ...

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.
"The Column of Infamy by Pasquale De Feo"
Radio Onda Rossa (Scarceranda), 2010
L'Europa condanna il "41 bis"
Antimafia Duemila, January 8, 2008
"Il 41 bis equivale a una tortura"
TG3, October 15, 2007 {{DEFAULTSORT:Article 41-bis prison regime Italian criminal law Antimafia History of the Sicilian Mafia