Patient with bipolar disorder was kept in prisons instead of a psychiatric hospital! Violation of a number of ECHR provisions
JUDGMENT
Sy v. Italy 24.01.2022 (app. no. 11791/20)
SUMMARY
The case concerned the fact that the applicant, who suffered from a personality disorder and bipolar
disorder, had remained in detention in an ordinary prison despite domestic court decisions stating
that his mental health was incompatible with such detention and ordering his transfer to a
Residential Centre for the enforcement of preventive measures (REMS), and later to a prison
psychiatric service.
The Court noted that despite the clear, unequivocal statements by the domestic court the
applicant’s mental state had been incompatible with detention in prison, and that he had remained
in an ordinary prison for almost two years. He had not had the benefit of any overall therapeutic
strategy for treating his disorder, against a general background of poor conditions of detention.
The Court pointed out that on 21 January 2019 the Rome sentence enforcement judge had ordered
the applicant’s immediate transfer to a Residential Centre for the enforcement of preventive
measures for one year. The Prison Administration Department then sent a large number of requests
for admission to REMS’s in the Lazio Region and beyond, unsuccessfully. The Court noted that in the
light of such refusals, the domestic authorities had neither created new REMS places nor found any
alternative solution.
As the Court had emphasised on several occasions in the past, Governments should organise their
prison systems in such a way as to ensure respect for the dignity of detainees, regardless of financial
or logistical difficulties. The Court considered therefore that it was incumbent on the Italian
Government, in the absence of an REMS place, to find an appropriate alternative solution, as the
Court had in fact explicitly stated in its interim measure issued under Rule 39.
PROVISIONS
Article 3
Article 5 par. 1
Article 5 par. 5
Article 6 par. 1
Article 34
PRINCIPAL FACTS
The applicant, Giacomo Seydou Sy, is an Italian national who was born in 1994 and lives in Mazzano
Romano (Italy). He suffers from a personality disorder and a bipolar disorder. He was detained in
Rebibbia Nuovo Complesso Prison (Rebibbia NC) in Rome when he lodged the application.
Charged with harassing his former partner, resistance to a public officer and inflicting bodily harm,
Mr Sy was placed in house arrest on 15 July 2017 by the investigation judge (GIP) of the Rome
District Court, as a preventive measure.
On 4 September 2017, after Mr Sy had left his home on many occasions, the GIP replaced the
measure with pre-trial detention and requested that the prison medical department draw up a
report on his state of health and its compatibility with detention, in order to assess the capacity of
the prison system to provide the applicant with the necessary healthcare. On 18 September 2017
the GIP requested a psychiatric assessment of the applicant. On 3 October 2017, during a hearing
before the GIP, the expert submitted his report, which concluded that Mr Sy should be considered as
“posing a danger to society”, within the psychiatric meaning of the term, and recommended
treatment and therapeutic rehabilitation instead of detention.
On 6 October 2017 the GIP replaced the pre-trial detention with an individual preventive measure of
placement in a Residential Centre for the enforcement of preventive measures (REMS) for a year,
which measure should be implemented as quickly as possible.
On 22 November 2017, relying on the psychiatric expert assessment requested, the GIP acquitted Mr
Sy on the grounds that because of his disorder he was unable to control his acts, and ordered the
implementation of the REMS detention measure for a period of six months. He noted that the
preventive measure imposed on the applicant on 6 October 2017 had not been enforced for lack of
available places in the institutions in question. For his part, Mr Sy affirmed that he had been
released, for lack of available REMS places, on 23 December 2017 and had then, on 23 January 2018,
spontaneously joined a specialised therapeutic group to receive personalised therapy.
At the request of the public prosecutor’s office, the Rome sentence enforcement judge (SEJ)
reassessed Mr Sy’s situation, and by order of 14 May 2018 declared that the applicant still posed a
danger to society. He replaced the REMS detention with one year’s release under police supervision,
to be enforced in the framework of the specialised therapeutic group. Mr Sy submitted that the
following month, while still subject to the release under police supervision order, he had been
authorised to leave the therapeutic group temporarily.
On 2 July 2018 Mr Sy was arrested red-handed for aggravated robbery and resistance to a public
officer. On the same day the Tivoli District Court ruled the arrest lawful and ordered his placement in
pre-trial detention in Rebibbia NC. On admission to prison he was examined by the prison
psychiatrist, who recommended placing him in solitary confinement and providing him with
appropriate medical treatment.
At a hearing on 26 September 2018 the court ordered an expert assessment of the applicant’s
aptitude to appear in court, his mental state when he had allegedly committed the offences he was
charged with and his possible danger to society. In his report the expert confirmed his diagnosis of 3
October 2017. He added that when the applicant had committed the offence, he had been in a
pathological state such as to partly rule out his criminal responsibility. He confirmed that the
applicant posed a danger to society. He emphasised that the necessity of medical treatment
outweighed the detention imperative, stating that the applicant could take part in court
proceedings.
On 22 November 2018 the court found Mr Sy guilty of the offences as charged and sentenced him to
one year and two months’ imprisonment. In another decision given on the same day the court
replaced the pre-trial detention with house arrest, in view of the applicant’s therapeutic needs as noted by the expert. On 27 November 2018, noting that Mr Sy had failed to comply with the conditions for his house arrest, the court reinstated the pre-trial detention order, and on 2
December 2018 Mr Sy was once again detained in Rebibbia NC. By judgment of 20 May 2019 the
Rome Court of Appeal, to which the applicant had appealed, reduced the prison sentence to 11
months, rescinded the pre-trial detention measure and ordered his release. However, he remained
in detention in Rebibbia NC.
In the meantime, by order of 21 January 2019, the Rome SEJ replaced the release under police
supervision order with immediate REMS detention for one year, on the grounds that that was the
only appropriate measure in view of the danger posed by Mr Sy to society. From 5 February 2019
onwards the Prison Administration Department (PAD) requested the applicant’s admission to several
regional and national REMS, all of which answered in the negative for lack of available places.
On 3 March 2020 Mr. Sy requested that the Court, pursuant to Rule 39 of the Rules of Court, indicate
to the Government interim measures such as to terminate his detention in prison.
On 7 April 2020 the Court requested that the Government, in pursuance of Rule 39 of the Rules of
Court, ensure M. Sy’s transfer to an REMS or other institution capable of providing appropriate
medical treatment for the applicant’s mental illness. On 27 April 2020 the Government informed the
Court that they had notified the Rome SEJ of the interim measure indicated by the Court, explaining
that the judicial authority held exclusive competence to modify an REMS placement order by
applying another less severe preventive measure. They added that despite repeated requests no
REMS places had as yet become available.
On 4 May 2020 the Rome SEJ received the psychiatric assessment requested. It certified that Mr Sy
posed a danger to society. The expert confirmed that he required a residential-type therapeutic
rehabilitation programme, and pointed out that placement in a specialised community was the
optimum solution.
On 11 May 2020 the Rome SEJ declared that Mr Sy had become less dangerous, rescinded the REMS
detention order and replaced it with the preventive measure of release under police supervision in
the framework of the community in which Mr Sy was to follow a personalised therapeutic
programme. On 12 May 2020 the applicant was transferred to the community. He escaped the
following day.
On 8 June 2020 the Rome SEJ declared that Mr Sy had become more dangerous, and once again
ordered the implementation of the preventive measure of REMS detention for a minimum of one
year.
On 1 July 2020 the REMS “Castore” in Subiaco (Rome) informed the authorities that a place had
become available for the applicant as of 6 July 2020. Mr Sy was transferred on 27 July 2020.
Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on
Human Rights, the applicant submitted that his continued detention in an ordinary prison had
prevented him from benefiting from therapeutic provision. Relying on Article 5 § 1 (right to liberty
and security), he alleged that his detention had been unlawful. Relying on Article 5 § 5 (right to
compensation), he complained that he had had no effective remedy to obtain compensation for the
damage he claimed to have sustained. He complained of a violation of Article 6 § 1 (right to a fair
trial) on account of the failure to enforce the decision given by the Rome Court of Appeal on 20 May
2019. Relying on Article 13 (right to an effective remedy) read in conjunction with Articles 3 and 5 §
1, he submitted that he had had no effective remedy to complain of the absence of adequate
therapeutic care during his detention. Relying on Article 34 (right to individual petition), he
submitted that Italy had failed to honour its obligations.
THE DECISION OF THE COURT…
Article 3
The Court first of all noted that already on 6 October 2017 the GIP of the Rome District Court,
drawing on the psychiatric expert’s conclusions, had replaced the pre-trial detention order with
placement in an REMS.
As regards the detention in Rebibbia NC Prison, the Court noted that in November 2018 the expert
appointed by the Tivoli District Court had ruled that the applicant needed overall therapeutic
provision, which should take precedence over the detention requirement. Subsequently, on 21
January 2019, the Rome SEJ ordered the applicant’s immediate transfer to an REMS. A few days later
the prison psychiatrist had certified that the applicant was unsuited to detention in an ordinary
prison. On 4 February 2019 the court had ordered his immediate placement in an appropriate
institution or in a psychiatric prison.
Consequently, the Court noted that the applicant’s mental condition had been incompatible with
detention in prison and that despite the clear and unequivocal indications, the applicant had
remained in an ordinary prison for almost two years. It transpired from the case file that the
applicant had not benefited from any overall medical provision for his illness aimed at remedying his
health problems or preventing their aggravation, all in a general context of poor conditions of
detention.
There had therefore been a violation of Article 3 of the Convention.
Article 5 § 1
As regards the period of detention from 2 December 2018 to 20 May 2019, the Court considered
that it had complied with domestic law. It had been based on the judgment sentencing him to one
year and two months’ imprisonment delivered by the court on 22 November 2018, and on the 27
November 2018 decision by the same court reinstating the pre-trial detention order.
In the present case the Court observed that the applicant had complained solely about the absence
of appropriate therapeutic provision, without contesting the incompatibility of his detention with his
mental state on account of any inability to attain the social rehabilitation aim pursued by the prison
sentence. The Court therefore considered that while serving the sentence the applicant had been in
a position to understand and benefit from the social rehabilitation aim of the prison sentence.
The Court concluded that the impugned period of detention had been in conformity with the
requirements of Article 5 § 1 (a) of the Convention. There had therefore been no violation of that
provision in respect of the detention from 2 December 2018 to 20 May 2019.
As regards the period of detention from 21 May 2019 to 12 May 2020, the Court pointed out that on
21 January 2019 the Rome SEJ had ordered the applicant’s immediate placement in an REMS for one
year on the grounds that that measure had been the only appropriate way to deal with the danger
which he posed to society.
It transpired from the file in the instant case that as from February 2019 the Prison Administration
Department had sent out a large number of requests for a place in an REMS in the Lazio Region and
beyond, unsuccessfully. The Court noted that in the light of those refusals, the domestic authorities
had neither created new places in the centres nor found any alternative solution. The Court could
therefore not consider the lack of available places as valid justification for keeping the applicant in
prison.
Consequently, the applicant’s detention from 21 May 2019 onwards had not complied with the
requirements of Article 5 § 1 (e). There had therefore been a violation of Article 5 § 1 of the
Convention.
Article 5 § 5
The Court observed that the civil action for damages laid down in Article 2043 of the Civil Code
required the claimant to prove the existence of any unlawful act, malicious intent or negligence on
the part of the authorities and the damage sustained. The Court noted that the Government had not
given any examples of cases where such an action had been successfully brought in circumstances
similar to those of the present case.
The Court therefore considered that the applicant had had no remedy in order to obtain, with an
adequate degree of certainty, compensation for the violations of Article 5 § 1 of the Convention, and
that there had therefore been a violation of Article 5 § 5 of the Convention.
Article 6 § 1
The Court observed that the 20 May 2019 judgment of the Rome Court of Appeal ordering the
applicant’s release had not been enforced. In particular, further to the order issued by the SEJ on 21
January 2019, the applicant ought to have been transferred to an REMS, but he had nonetheless
remained in prison. The Court concluded that there had been a violation of Article 6 § 1 of the
Convention.
Article 13 in conjunction with Articles 3 and 5 § 1
In the light of those conclusions and of its previous findings, the Court did not consider it necessary
to examine separately the complaints under Article 13 read in conjunction with Articles 3 and 5 § 1
of the Convention.
Article 34
As the Court had already stressed on several occasions, all governments should organise their prison
systems in such a way as to ensure respect for the dignity of detainees, regardless of financial or
logistical difficulties. The Court considered therefore that it was incumbent on the Italian
Government, in the absence of a place in an REMS, to find an appropriate alternative, as in fact
explicitly stated by the Court [in its interim measure issued under Rule 39]. The Court therefore
could not consider the unavailability of REMS as valid justification for the delay in the enforcement
of the interim measure which it had indicated.
While the Court considered that some delay in enforcing the interim measure in the present case
would have been acceptable in the light of the exceptional lockdown situation in Italy in March 2020,
a delay of thirty-five days was nevertheless excessive. It thus found that the Italian authorities had
failed to honour their obligations under Article 34.
There had therefore been a violation of Article 34 of the Convention.
Just satisfaction (Article 41)
The Court held that Italy was to pay the applicant 36,400 euros (EUR) in respect of non-pecuniary
damage and 10,000 EUR in respect of costs and expenses.
