PhD Candidate at University of Rome Tor Vergata, School of Law
The implementation of the judgments Ananyev v. Russia (2012) and Torreggiani v. Italy (2013) deserves careful analysis as it is a practical example of the impact that pilot judgments may have in national legal orders. In fact, the success of this procedure depends on the willingness of States to cooperate. Since pilot judgments address a broader situation and not only to an individual applicant, their implementation requires more than the simple payment of compensation in a single case: instead, domestic legal changes are necessary. Thus, the execution of the judgments represents the success, or failure, of this mechanism as an instrument to highlight human rights violations stemming from structural and systemic problems.
The Ananyev and Torreggiani cases are significant because they are related to the violation of one of the most important rights protected by the European Convention on Human Rights: the prohibition of torture and inhuman and degrading treatment (Article 3) in the context of national prison systems. As it will be highlighted in this article, even if both these pilot judgments ruled on the inhuman and degrading treatment against the detainees, their implementation has been different in Russia and in Italy and, thus, the effectiveness of the pilot judgment procedure itself has varied.
In the Ananyev case, the Court found a structural dysfunction in the Russian prison system as the root of a recurring structural problem of inadequate conditions of detention and, therefore, it declared a violation of Articles 3 and 13. To solve this structural dysfunction, the Court gave the Russian Federation a binding timeframe of six months to implement preventive and compensatory measures in respect to the inhuman treatment of detainees and the lack of adequate jurisdictional remedies.
Before evaluating the response of the Russian Federation’s compliance with the Ananyev pilot judgment, the situation that led the Court to find a structural problem with the prison administration in Russia should be taken into account.
According to Article 17, paragraph 3, of the Federal Law of 15th July 1995, there is an opportunity for those who are in custody to file a complaint with the chief of the reprimand centre. However, the Court highlighted that this remedy cannot be considered an effective tool in the context of Article 13 because a complaint against inappropriate conditions would be examined by a person who is responsible for their observance. Furthermore, the federal and regional Ombudsmen, who are already established by the Russian law, have neither the power to make decisions capable of improving the detention conditions, nor the power to provide compensation for the violation of Article 3. Thus, a complaint to the Ombudsmen cannot be considered an effective remedy. The only appeal that, in theory, could be compatible with Article 13 is the one provided by Chapter 25 of the Code of Civil Procedure, as the Court itself recognized. However, an effective remedy must be available not only in theory, but also in practice. As far as this is concerned, the Russian authorities have never shown any practical examples of a successful application of a complaint under Chapter 25. Finally, according to Articles 1070 and 1100 of the Civil Code, the compulsory list of cases of strict liability for which it is envisaged compensation for damages should be paid by the State do not include reparation for inhuman and degrading detention conditions.
Against this legal background, in the Ananyev pilot judgment, the Court highlighted the criteria that the Russian prison system must satisfy in order to solve the structural problem of inadequate detention conditions. Furthermore, the Court has also reiterated that the Committee of Ministers exercises supervision over the execution of its judgments. In accordance with the Committee’s procedures, Russia has proposed an action plan outlining the measures that the government will take to improve the dramatic conditions of the prisons. However, the measures outlined in the action plan and those that have concretely been converted in law mainly focus on access to remedies, rather than alleviating the material condition of prisoners as the Ananyev criteria demand. Therefore, due to the lack of implementation of general measures indicated in the pilot judgment, after the expiration of the timeframe of six months, the Court handed down other judgments finding Russia to be in breach of Articles 3 and 13. Beyond all the cases that were frozen during the timeframe assigned by the Ananyev judgment, the Court recently also declared the same violations in the Nogin v. Russia (2015) and Khloyev v. Russia (2015) cases.
Finally, it should be noted that in its latest decision, the Committee of Ministers urged the Russian government to have an effective remedies system in place by the end of 2014, asking it to move beyond paper promises. However, almost one year later, there is no news of any legislative innovations regarding improvements in the detention conditions of Russian prisons.
In the Torreggiani v. Italy judgment, the Court observed that the nature of overcrowding in Italy’s prison system emerged clearly from the fact that several hundred applications were pending before the Court raised the issue of the compatibility of the conditions of detention with Article 3. Therefore, the Court decided to apply the pilot judgment procedure and declared that Italy had violated Article 3, indicating a timeframe of one year to put in place an effective remedy or a combination of remedies adequate to reduce cases of prison overcrowding.
In the Italian system, several laws regulate the condition of prisoners, but only in a few concrete cases are their provisions fully respected. Article 6 of the law 26th July 1975 no. 354 provides that each prisoner has the right to be interned in clean and heated cells of sufficient width, equipped with private toilets. However, the Court in the Torreggiani case recognized that these provisions were not met in the applicant’s situation and, indeed, found the general situation of Italian prisons very alarming. Furthermore, the law 26th November 2010 no. 199 has been approved in order to comply with the structural problem of prison overcrowding, and it has inserted special measures aimed at reducing the prison population by extending home detention for people convicted for a period no longer than eighteen months. Nevertheless, the Court clearly highlighted that, while these legislative improvements were welcome, they did not solve the structural problem of prison overcrowding, and therefore it declared Italy in violation of Article 3.
Following the application of the pilot judgment procedure, Italy has put in place a number of additional legislative measures. Among them, the most significant intervention has surely been the approval of the law 21st February 2014 no. 10 on urgent measures concerning the protection of the fundamental rights of detainees and the reduction of the prison population. This was the last act of a complex legislative process aimed at respecting and complying with the Torreggiani judgment. On the one hand, the measures introduced by this law are significantly innovative in the aim of reducing the use of imprisonment (see e.g. the use of the electronic tagging, the extension of early release, and home detention and deportation of foreign prisoners). On the other hand, the new provisions are also fundamental for improving the protection of the fundamental rights and judicial guarantees of the detainees. In fact, the new measures have introduced an Ombudsman for the rights of detainees, which has the power to formulate a report to the Parliament as well as to make specific recommendations and obtain information and documents from the prison administration.
All of these measures have been positively considered by the Court, and in two inadmissibility decisions in 2014, the Court declared that there is no evidence to show that those remedies did not offer the prospects of appropriate relief for the complaints submitted under Article 3 and, therefore, the Court rejected these appeals on the basis of the non-exhaustion of domestic remedies. However, it must be said that while the measures in question make important changes necessary for a rapid response from the Court, they do not produce the needed basic reforms of the system.
“the effectiveness of the pilot judgment procedure depends upon the willingness of States to cooperate and to follow the indications of general measures provided by the Court”
In conclusion, as it stems from the different implementation of the judgments in the cases of Ananyev and Torreggiani, the effectiveness of the pilot judgment procedure depends upon the willingness of States to cooperate and to follow the indications of general measures provided by the Court. If they do so, as in the case of Italy, the Court may reject all new applications on the same violation as well as those that have been frozen after the pilot judgment was issued, thus avoiding new convictions for the State. In this case, the pilot judgment procedure becomes a fundamental instrument to guarantee both the correct and accelerated functioning of the Court and the protection of the individual rights violated by the structural and systemic problem. If, instead, the State does not cooperate, as in the case of Russia, the Court must reconsider all the similar applications previously frozen and it has to condemn the State for the same violation in all new cases. In this case, the pilot judgment procedure certainly fails in its objective to accelerate the resolution of appeals by the Court and to obtain in the shortest time a remedial action by the State. However, individual rights are not affected by the application of this procedure. The possibility for the Court to sanction the State by condemning it to pay compensation in every single case through an examination of all the appeals is aimed to guarantee the same level of protection for all the individuals that have suffered a violation of their fundamental rights.
 Ananyev and Others v. Russia nos. 42525/07 and 60800/08 (10th January 2012);
 Torreggiani and Others v. Italy nos. 43517/09, 46882/09, 55400/09 et al. (8th January 2013);
 Nogin v. Russia no. 58530/08 (15th January 2015);
 Khloyev v. Russia no. 46404/13 (5th February 2015);
 Stella and Others v. Italy and Rexhepi and Others v. Italy (16th September 2014);
 See e.g. Reshetnyak v. Russia (8th January 2013), Yefimenko v. Russia (12th February 2013), and Zuyev v. Russia (19th February 2013).
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