Case of Morabito v. Italy (Application no. 4953/22)
A selection of key paragraphs can be found below the judgment.
135. For the purpose of this examination, the Court will bear in mind that the applicant was, at the time of the application, 88 years old and had been subjected to the section 41 bisregime since 2004: he was therefore older than the applicants in all the previous section 41 bis cases examined by the Court, and had been subjected to that special regime for longer than most of them. While neither of these circumstances is, in itself, sufficient to conclude that the extension of the special regime was unjustified, they mean that particularly compelling reasons are required for any further extension. This is even more true since, under domestic law, every extension of the section 41 bis regime is ordered for a fixed period of two years (see paragraph 68 above), which makes it difficult to adapt to a situation that may develop rapidly, such as cognitive decline in an elderly person.
136. The Court reiterates that the section 41 bis regime is intended to sever contact between detainees and their criminal organisation. In this connection, it acknowledges that the domestic authorities, in their decisions on the extension of that regime, have given specific reasons for believing that the applicant continues to present a danger, namely: his criminal past and his leading role in the organisation; the fact that the organisation in question appeared to be still active; and the fact that the applicant had not distanced himself from the organisation and had behaved violently and aggressively in prison (see paragraphs 24 and 26 above).
137. Nevertheless, it is undisputed that for a few years now the applicant has been suffering from progressive cognitive decline. The medical documentation available to the Court in this regard prompts some legitimate doubt as to whether the applicant still represents a danger and as to whether he could maintain any meaningful, practical contact with his criminal organisation (see Provenzano, cited above, § 151). It appears from the medical documentation available to the Court that the applicant had started showing signs of possible cognitive deterioration as far back as 2014 and that subsequent neurological examinations had detected some signs of it (see paragraph 11 above); in the following years, he started showing some disorientation and slowdown and, in November 2017, he was diagnosed with a mild cognitive impairment (see paragraph 12 and 15 above). A number of private expert reports which also relied on the results of neurocognitive tests described the applicant as suffering from a mild cognitive impairment that was likely to develop into dementia (see paragraphs 19-21 above).
138. These developing circumstances were not taken into account in either the extension order of 7 February 2018 or that of 4 February 2020 (see paragraphs 24 and 26 above).
143.[…] the Court fails to see how a person suffering from an undisputed cognitive decline – and even diagnosed with Alzheimer’s disease – and who was incapable of understanding his own conduct or following a court hearing could at the same time maintain sufficient capacity to keep or resume – at such an advanced age, after almost twenty years spent under a particularly restrictive regime – meaningful contact with a criminal organisation. It considers that, at the very least, it would have required more detailed reasoning, based on thorough specialist examination, to reach such a conclusion.
145. Furthermore, the Court finds it significant that the domestic authorities did not consider the opportunity of lifting or easing some of the additional restrictions in order to accommodate the applicant’s potential needs despite explicit requests submitted by him (see paragraph 25 above; contrast with Enea, cited above, § 66).
146. In the light of the foregoing, the Court is not persuaded that the Government have convincingly demonstrated that, in the particular circumstances of the present case, the extended application of the section 41 bisregime was sufficiently justified.
147. It therefore finds that there has been a violation of Article 3 of the Convention in respect of this part of the complaint.