May 16, 2025
By Lorenza Grossi
The ECtHR examines the compatibility between special prison regimes and Article 3 ECHR. More precisely, under scrutiny is Article 41-bis of Law No. 354 of 26 July 1975 (the Italian Prison Law), also known as ‘hard prison.’ This provision allows the suspension of ordinary prison conditions – such as outdoor time and access to rehabilitative activities – for individuals convicted of mafia-type criminal association (Article 416-bis of the Criminal Code). Such measures may be applied when there are grounds to believe that the individual’s dangerousness continues, based on ongoing links with the criminal organisation. The application, lodged by a 90-year-old inmate convicted of being the leader of the Calabrian mafia, concerns Article 3 ECHR from two perspectives: (i) the compatibility of his physical health with imprisonment; (ii) the legitimacy of the extensions of the special regime, which allegedly failed to consider his neurological illness. The ECtHR finds a violation of Article 3 ECHR only concerning the second issue. The judgment includes a partly concurring and partly dissenting opinion. It offers new guidance compared to previous rulings on the compatibility of special prison regimes with Article 3 of the ECHR.
Giuseppe Morabito, aged 90 at the time of the application, was convicted for mafia association, being the leader of the ‘Ndrangheta, the Calabrian mafia-type criminal organisation. After a long period of evading capture, he was arrested in 2004 and has since been subjected to the special regime set out in Article 41-bis of the Law no. 354 of 26 July 1975 (Italian Prison Law). The applicant’s advanced age is accompanied by a series of medical conditions, both severe and less so: Morabito has been using a urinary catheter for over ten years, suffers from an inguinal hernia, has heart disease and polyarthritis, and more recently, has been diagnosed with progressive cognitive deterioration. Initial assessments of his neurological health were conducted in 2014. Despite recognising some cognitive slowing, the prison doctors concluded that Morabito was lucid and capable of orienting himself in time and space. It was only in 2022, when Morabito was hospitalised due to deep confusion, that he was diagnosed with Alzheimer’s disease. Alongside the prison medical assessments, Morabito also consulted private specialists. From 2015 onwards, many specialists confirmed the early stages of Alzheimer’s disease and recommended activities to maintain his brain function. In 2020, Morabito was investigated for actions undertaken during his imprisonment but was acquitted by reason of insanity.
Pursuant to Article 41-bis, the special regime may be renewed for successive two-year periods. Since 2018, each renewal has been duly challenged by Morabito, who contended that his state of health rendered it impossible for him to maintain any contact with his criminal organisation. In 2020, in the context of challenging another extension of the regime, the Rome court responsible for supervising the execution of sentences (Tribunale di Sorveglianza) appointed an expert to examine Morabito’s medical condition. The expert’s report clearly indicated that Morabito was suffering from progressive cognitive decline, and the appointed expert believed that the prison medical staff had underestimated the symptoms. Despite the expert’s findings, the Rome sentence supervision court rejected the appeal, citing that intercepted conversations with his family revealed that Morabito still exhibited a typical mafia mindset and appeared lucid and rational (§ 30 ‘as to the applicant’s cognitive state, the Rome sentence supervision court observed that – despite the expert’s conclusions – the applicant’s behaviour in prison and the content of his conversations with his family members showed that he had no remorse about his past, was anchored to a typical mafia mentality and still showed a strong and rational personality. The cognitive deterioration, therefore, was having less impact than had been suggested by the expert and did not affect the applicant’s capacity to maintain contact with the criminal organisation’). The Court of Cassation confirmed the ruling of the Rome sentence supervision court. In 2024, during proceedings concerning a further extension of the regime under Article 41-bis, the expert stated that Morabito’s capacity for understanding and will-formation was severely limited, if not entirely absent. Moreover, from 2015 until 2022, Morabito made several requests for home detention on medical grounds, under the provisions of Article 47-ter of the Italian Prison Law. All requests were rejected.
The application to the ECtHR, which alleges a violation of Article 3 ECHR, is structured along two distinct lines: the first concerns the alleged incompatibility of Morabito’s health condition with imprisonment, especially with the regime under Article 41-bis; the second concerns the alleged unjustifiability of the continued application of the regime under Article 41-bis considering the applicant’s cognitive decline. [TL7] As such, this case shares many points of intersection with the case Provenzano v. Italy, particularly concerning the Court’s substantive assessments. Provenzano, who had been the head of the Mafia for many years, lodged an application with the ECtHR alleging a violation of Article 3 of the Convention on two distinct grounds. The first concerned the incompatibility of his state of health with detention. The second related to the successive renewals of the special regime under Article 41-bis between 2012 and 2016 — the year of his death — given that his health condition precluded any possibility of maintaining ties with the mafia organisation he had led for so long. On that occasion, the ECtHR found a violation of Article 3 only in relation to the final renewal of the regime – the partly dissenting opinion concentrates specifically on this point.
When assessing the application, the ECtHR follows the bifurcated structure of the complaint. It first considers the compatibility of the applicant’s general health condition with imprisonment. Importantly, at this stage, the Court focuses exclusively on Morabito’s physical health, without addressing his cognitive decline or neurological condition — which is examined in the second part of the application. In doing so, the Court restates the principles established in Rooman v. Belgium concerning the obligation under Article 3 ECHR to safeguard the health and well-being of detainees. This assessment, it recalls, depends on: (i) the prisoner’s state of health and the impact of detention; (ii) the quality of medical care provided; and (iii) whether continued imprisonment is justified in light of the individual’s condition.
The Court rejects Morabito’s complaint. It is evident that during the long period of imprisonment, even under the special regime, Morabito’s clinical situation remained relatively stable, and in any case, he was continuously monitored, including through specialist visits. Regarding continued imprisonment, the ECtHR recalls that there is no general obligation on Member States to release a prisoner suffering from illness, but it is necessary to assess the clinical conditions of the patient in detail, ensuring adequate treatment even within the prison walls. Furthermore, the expert appointed by the Rome Court in 2020, although acknowledging that the symptoms of the applicant were not properly evaluated by the prison doctors, did not provide clear indications regarding the incompatibility of Morabito’s health condition with imprisonment. As such the Court did not find the continued detention of the applicant as such to be a violation of article 3.
However, the matter takes a different turn when the Court examines the particular art. 41-bis regime to which Morabito has been subjected for over twenty years.
The applicant argues that his clinical condition was not properly assessed in relation to the ongoing application of the ‘hard prison’ regime, which he contends has resulted in inhuman and degrading treatment, in violation of Article 3 ECHR. Morabito claims that, on the one hand, his progressive cognitive deterioration has rendered the additional restrictions of the Article 41-bis regime unjustified, as he is no longer dangerous for the purposes of the regime’s application. On the other hand, he argues that these very restrictions have further exacerbated his cognitive condition.
In evaluating these aspects, the ECtHR reiterates that the establishment of special prison regimes does not inherently violate Article 3 ECHR, provided that the State ensures respect for human dignity, without causing a degree of suffering greater than that inherent in imprisonment and guarantees the health and well-being of the prisoner. The Court bases its decision on existing case law, specifying that the violation of Article 3 ECHR must be assessed based on several factors: the severity of the measure, its duration, the objective pursued, and the effects of the measure on the person concerned. It is also specified that any regime leading to, even partial, isolation cannot be applied indefinitely but requires a series of substantive and procedural guarantees to prevent any form of abuse. In this context, a detailed evaluation of the reasons behind such an ‘extreme’ measure, such as the hard prison regime, is needed, especially when considering its extension over time. The lack of physical and mental stimuli is likely to cause long-term harm to the mental health of the prisoner, and all circumstances (from the prisoner’s health to other factors arising during the regime) must be considered when assessing the legitimacy of the restrictions.
In this case, the temporal factor seems to be decisive on two levels: on the one hand, Morabito, 88 years old when the appeal was filed, is older than other applicants who have appeared before the Court regarding this special regime; on the other hand, the duration of his subjection to ‘hard prison’ appears particularly significant (20 years). This necessitates a stronger justification, especially for the regime under Italian law, where each extension adds another two years to the duration of the Article 41-bis regime. The assessments regarding the criminal association Morabito is part of – i.e. that it is still active in the region – might seem to justify the extension of the measure. However, this does not apply to Morabito’s situation. His cognitive decline reduces the risk of him maintaining ties with the criminal environment, which is a key factor in justifying the restrictions. Given the clinical evidence provided, as well as the acquittal due to Morabito’s inability for understanding and will-formation, the Court finds that the reasons supporting the 2022 extension are insufficient to consider the measure legitimate, thus violating Article 3 ECHR.
The Court points out that it is difficult to imagine how a person could maintain meaningful contact with a criminal organisation under such circumstances. Specifically, it notes that Morabito suffers from cognitive decline, has been diagnosed with Alzheimer’s disease, and is incapable of understanding his own conduct or participating in a court hearing. In light of these factors, the Court finds that, at the very least, more detailed reasoning, based on thorough specialist examination, would have been required to justify the extension of the regime (para 143).
Judge Balsamo believes that the ECtHR has applied criteria that differ from those used in Provenzano v. Italy, which is a significant precedent for cases of this kind, especially given the similarities with the present case. He argues that a careful analysis of the criteria established in that case should have led to the exclusion of a violation of Article 3 ECHR in the Morabito application.
In fact, the inability to maintain ties with the criminal environment was, in Provenzano’s case, impossible for two main reasons: on one hand, the applicant’s health was severely compromised, requiring nutritional support; on the other, Bernardo Provenzano’s role in the Sicilian mafia was largely a thing of the past, with no further connections to the organisation.
The situation is different in Morabito’s case, as he continues to play a prominent role in the organisation, which is still active, and with which he has familial and organisational ties. Therefore, both the subjective and current conditions of the ill prisoner and his connections to the criminal environment are significantly different.
The judge also emphasises the intensity of the social alarm caused by the ‘Ndrangheta, due to its global spread and its familial structure, which forms much tighter bonds, resulting in fewer collaborators with the authorities.
Thus, the dissenting judge does not share the majority’s opinion regarding Morabito’s inability to maintain ties with his criminal organisation, arguing that, given his prominent role within the organisation, there remains a risk that he could maintain connections with it. The majority, in fact, considers the (in)capacity for understanding and will-formation of the applicant, but this does not exclude his social dangerousness. Considering the preventive and security-oriented nature of the regime under Article 41-bis, a ‘hard prison’ measure for a person with a neurological condition is not necessarily incompatible with article 3, especially for Morabito, whose situation warranted the continuation of the regime as correctly determined by the national Courts.
With this ruling, the Strasbourg judges reassess the compatibility between Article 3 ECHR and special prison regimes, such as that established by Article 41-bis of the Italian Prison Law.
The general impression is that the security needs underlying the so-called ‘hard prison’ continue to have significant weight in the Court’s evaluations. The Court’s jurisprudence appears to be very cautious and, at least in some respects, less decisive compared to other aspects of Italian penitentiary legislation. The Court’s case law has, by contrast, played a pivotal role in advancing more humane conditions of detention in Italy, having addressed critical issues such as prison overcrowding (Torreggiani and Others v. Italy), the treatment of detainees with mental illness (Sy v. Italy, Niort v. Italy), and the reform of the ergastolo ostativo, or irreducible life sentence (Viola v. Italy, concerning a violation of Article 3 ECHR in respect of life imprisonment without the prospect of release).
In fact, the Strasbourg judges exclude a violation of Article 3 ECHR regarding the compatibility of the applicant’s health condition with imprisonment. This is an evaluation that, at least in principle, leaves some doubts, based both on the applicant’s advanced age and his health condition. Public order reasons seem to loosen the grip of Article 3 of the ECHR, which, in other instances, has more clearly represented a strong defense of the rights of detained individuals. A very recent example is Niort v. Italy, in which the ECtHR found a violation of Article 3 of the Convention in relation to the detention of an individual suffering from borderline personality disorder.
Regarding the observations made on the regime under Article 41-bis, although the Court exercises extreme caution in evaluating whether and to what extent the so-called ‘hard prison’ has aggravated Morabito’s illness, the Court’s considerations seem to fall within sufficiently stable parameters, offering assessments that, as pointed out in Judge Balsamo’s dissenting opinion, appear to go beyond previous rulings on the matter.
As previously noted, Article 41-bis of the Italian Prison Law allows for the suspension of ordinary rehabilitative activities on grounds of public order, where there are reasonable grounds to believe that the individual continues to maintain ties with the mafia organisation to which they belong.
The principal cases in which the ECtHR has addressed this particular regime are Argenti v. Italy, Enea v. Italy, Provenzano v. Italy, and now Morabito v. Italy. In the first two, the Court did not find a violation of Article 3 ECHR, but it emphasised that the prolonged application of the restrictions under Article 41-bis could amount to inhuman or degrading treatment. The Court made clear that there is no predetermined duration at which treatment becomes inhuman; rather, each case must be assessed on its individual facts (Argenti v. Italy, para 21; Enea v. Italy, para 64).
In Provenzano v. Italy, by contrast, the Court found a violation of Article 3 ECHR in relation to the final extension of the regime, during which the applicant—who had been seriously ill for many years—ultimately died. Once again, the Court confirmed the abstract compatibility of special regimes with Article 3, provided that all the concrete circumstances of the case are adequately considered. This is especially relevant where the extension of such measures results in prolonged periods of severe restrictions, as commonly occurs in Italy.
In the broader case law, two aspects emerge as particularly significant: (i) the duration of the restrictions; and (ii) the Court’s willingness to engage with the merits of the domestic courts’ assessments.
As to the first, the duration of the regime (over 20 years), combined with the applicant’s age (90 years), were central to the Court’s finding of a violation of Article 3, in a manner consistent with previous rulings—although in those earlier cases, no violation was ultimately found (Argenti v. Italy, Enea v. Italy).
The second dimension reflects a closer parallel with Provenzano v. Italy. In Morabito v. Italy, the applicant’s cognitive deterioration was, in the Court’s view, incompatible with the rationale underpinning the continued application of Article 41-bis, namely the risk of ongoing connections with the criminal organisation. This marks the most significant aspect of the judgment, as the Court directly engages with the merits of the domestic decisions.
This is where Morabito departs from Provenzano, despite several factual similarities. In Provenzano, the Court found a violation only in respect of the final extension of the regime. Although the preceding extension had also occurred in the context of cognitive decline, the Court considered it legitimate, insofar as the domestic courts had addressed the applicant’s health condition (Provenzano, para 154). There, the Court accepted that it was sufficient for domestic judges to consider the applicant’s health, without reviewing the substance of their reasoning.
By contrast, in Morabito, as highlighted in Judge Balsamo’s dissenting opinion, the ECtHR revisits the justification underpinning the extension of the measure and ultimately overturns the assessment of the Rome Supervisory Court. The judgment suggests that it is no longer sufficient for domestic courts merely to acknowledge an applicant’s health condition; rather, they must conduct a detailed and substantive analysis, particularly where the extension imposes another two years of restrictive detention.
In this case, the temporal factor seems to have played a crucial role in determining the violation of Article 3 ECHR, and it is reasonable to assume that this criterion will shape future rulings, as long as the security needs are not sufficiently justified by the national judges. In other words, the concern is that, even within the European framework, security reasons may represent the greatest obstacle to the full exercise (and recognition) of fundamental rights for persons deprived of their liberty.
Conclusions
In the present case, the ECtHR finds a violation of Article 3 ECHR concerning the extension of a special detention regime applied to a person suffering from Alzheimer’s disease. In assessing the actions of the national courts, the ECtHR criticises their substantive approach, emphasising the need – especially regarding the extensions of the regime – for a more detailed evaluation of all the circumstances characterising the specific case.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
