The useful surface to avoid the risk of treatments violating the art. 3 of the ECHR is the one directly or, in any case, easily functional to the freedom of movement of the inmate inside the cell (Criminal Cassation, sentence n. 18760/2023 – text at the bottom).
The fact
The sentence that is noted was issued following the cassation appeal of the Ministry of Justice against the recognition to a prisoner of pecuniary compensation for the prejudice deriving from the inhuman and degrading conditions of detention suffered.
In particular, the State Attorney’s Office, representing the appellant Ministry, deduced the erroneousness of the criteria for calculating the available individual space, used by the surveillance judiciary, which had not included the space occupied in the cell by the single bed.
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The question
The question that arises in the present case is whether, in terms of compliance of the conditions of detention with Article 3 of the ECHR, as interpreted by the ECtHR, the minimum available space of three square meters for each detainee should or should not include the bed single.
The issue of the criteria for calculating the minimum living space of the cell has been the subject of numerous rulings, especially with reference to the dispute that developed after the introduction, in June 2014, of the specific remedy pursuant to article 35 ter ord. pen.
The need to determine the general calculation criteria derives from the existence of legislation which does not specify the minimum living space due to the subject placed under restriction of freedom and, at the same time, makes a reference (article 35 ter paragraph 1) to the contents of the jurisprudence of the Edu Court, by its casuistic nature, on the subject of violation of the prohibition of inhuman or degrading treatment (Article 3 of the Edu Convention).
The criterion that the jurisprudence, in most of the decisions, has adopted, has been to enhance the functional size of the CD. minimal living spaceto be understood as “space intended for movement” inside the cellthereby excluding from the calculation not only the surface of the bathroom but also the surface occupied by fixed or bulky furnishings.
Since conflicts have arisen both in relation to the functional realization of the minimum space and in reference to the type of furnishings to be deducted in the calculation, the issue of the criteria for calculating the living space has been left to the decisions of the United Sections, which, with the decision no. 6551 of 2021stated that in evaluating the minimum individual space of three square meters, to be ensured for each prisoner so that the State does not infringe the prohibition of inhuman or degrading treatment, established by article 3 of the ECHR Convention, as interpreted by the jurisprudence of the ECtHR, consideration must be given to the surface that ensures normal movement in the cell with the exclusion of furnishings that tend to be fixed to the ground, including bunk beds.
However given that in the judgment in question express reference is made to bunk beds and fixed wardrobes, in some judgments (see, for example, Cassation Pen., 20786/2022) it was considered that single beds, which their nature can be moved, must be calculated in the calculation of the minimum useful space; this, unlike the bunk bed which is considered to be so bulky as to determine the subtraction of the space occupied from the calculation of the usable surface.
According to another interpretation (see, for example, Cass. Pen., 18681/2022) the consideration according to which the single bed can be used for purposes other than rest (reading, playing cards, talking, etc.), unlike the bunk bed, is not relevant for the decision regarding overcrowding: in fact, if the bed single is anchored to the ground, the inmates inside the cell cannot use the space they occupy to walk or move around; otherwise there is the possibility of moving it during the day for specific needs, like chairs and tables, and, therefore, to use the relative space.
Furthermore, according to this orientation, if it is true that the United Sections have stated that the space occupied by the bunk bed, not being the same movable, must be deducted from the overall space in the room in order to verify compliance with the minimum per capita area , it is also true that they did not state, on the contrary, that the surface occupied by the single beds should not be deducted: therefore, the deduction must be made if the single beds are anchored to the ground, because they are not, in this case, mobile, while it doesn’t have to be if they can be moved.
We will see how the pronunciation that is noted has gone further, extending the principles enunciated by the United Sections for the bunk bed to the single bed.
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The sentence
According to the ruling in question, even if the principle of law affirmed by the Commisso United Sections refers verbatim, and by way of example, only to the need to deduct the area occupied by the bunk beds from that intended for normal movement inside the cell, the arguments used offer an interpretative key, which allows the same principle to be extended to single beds, in accordance, moreover, with what is established by the civil Sections, according to which in the case of the single bed such as in the case of the bunk bed, the “movement” of the prisoner in the cell is compromised: this because, even if the space occupied by the first is usable for rest and sedentary activity, these vital organic functions are physiologically different from “movement”, which postulates, by its natural expression, an ordinarily “free” space .
In the opinion of the Section assignee of the appeal, the United Criminal Sections, like the civil Sections, embrace an interpretation of the minimum space aimed at attributing pre-eminent importance to the surface destined to ensure the normal movement of prisoners inside the cell, an interpretation which recognizes in the minimum prison space a sort of “free movement reserve”, with the consequence that in calculating the available space and directly usable for the ambulation and movement of the occupants it is necessary to include the area occupied by the furnishings which, being able to be easily removed, do not hinder “trampling”; while «basically fixed» furnishings must be deducted from the calculation.
The category of basically fixed furnishings is presented as an intermediate category between fixed and mobile, i.e. mobile furnishings which, although transportable from one point of the cell to another, cannot however be transported easily and significantly limit the free movement of the prisoner within the cell. inside the cell like the fixed ones.
In this perspective, the single bed must be understood as basically fixed furniture, and therefore excluded from the surface useful for satisfying the primary need for movement of restricted subjects. Indeed, it is contrary to common daily experience that a bed, even if not fixed to the floor, can be considered a piece of furniture that can be easily moved and transported within a room by someone who needs to move around the same room to wait to its normal activities. In the light of these arguments, excluding that the furnishings of considerable weight and bulk, such as a bed complete with mattress, can be easily moved from one point of the cell to another, especially if the dimensions of the latter allow very limited overall usable personal space , limited to 3 or 4 m2, the ruling rejected the Ministry’s appeal.
Criminal cassation, sentence n. 18760/2023