FIRST SECTION
DECISION
Application no. 8238/18
Gabriele TOSI
against Italy
The European Court of Human Rights (First Section), sitting on 6 March 2025 as a Committee composed of:
Erik Wennerström, President,
Raffaele Sabato,
Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application no. 8238/18 against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 5 February 2018 by an Italian national, Mr Gabriele Tosi (“the applicant”), who was born in 1959, lives in Busto Arsizio and was represented by Ms F. Pietrangeli and Mr G. Biagioni, lawyers practising in Rome and Pistoia;
the decision to give notice of the application to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the conditions of the applicant’s detention in Busto Arsizio Prison during the period between 6 February and 16 May 2013, pending criminal proceedings against him on the charge of money laundering.
2. According to the applicant, he was detained in a cell measuring 8.775 sq. m together with two other inmates. The cell was equipped with a three-tier bunk bed, a table, two cupboards and three stools. The window was covered with mesh grill which significantly limited access to daylight and fresh air. There was no hot water or bidet in the bathroom adjacent to the cell. The communal shower room was equipped with one showerhead for twenty inmates. The cell was part of the infirmary wing and the applicant – unlike the inmates who were detained in other areas of the prison and who had four hours of daily outdoor exercise – was only allowed two hours of outdoor exercise per day. In the absence of any out-of-cell activities, the applicant was confined to his cell for most of the day.
3. According to the Government, the applicant was detained in cell no. 3 in the infirmary wing in order to prevent contact with his co-defendant, who was detained in the same prison at the relevant time. The cell measured 9.11 sq. m, excluding the space occupied by the furniture, therefore the personal space allocated to the applicant exceeded 3 sq. m at all times. The windows in the cell allowed for adequate access to daylight and fresh air. The artificial lighting was sufficient for reading and studying. The cell was heated from October to April. The bathroom measured 3 sq. m and was isolated from the living area of the cell and was equipped with a bidet and a toilet in good working order. The hot shower was operational every day. The inmates were allowed outdoor exercise twice a day from 9 a.m. to 11 a.m. and from 1 p.m. to 3 p.m. The food was sufficient and of good quality. Medical care was provided. The applicant was allowed regular family visits; during the period of his detention, he met with his family and friends on twenty occasions. In view of the brevity of the period of pre-trial detention, the applicant was not provided with an opportunity to work while incarcerated, nor could he participate in any of the prison activities or programmes available to other inmates.
4. On 28 December 2014 the applicant brought an action against the Ministry of Justice, seeking damages allegedly caused by the conditions of his detention in Busto Arsizio Prison.
5. The Ministry of Justice contested the applicant’s allegations and argued that the conditions of his detention had complied with the Convention standards. The Ministry relied on a statement prepared by the prison administration and an official report on cell measurements in Busto Arsizio Prison.
6. On 7 October 2015 the Court of Milan rejected the applicant’s claims. Relying on the information provided by the respondent, the court found that the applicant had been detained in adequate conditions.
7. The applicant appealed, maintaining that he had been provided with less than 3 sq. m of personal space. Alleging that the report prepared by the prison administration had contained obvious factual errors, he argued that the judge had erred in relying on it when establishing the facts of the case and that the judge had failed to establish the decisive facts correctly.
8. On 15 May 2017 the Court of Cassation rejected the applicant’s appeal. The judgment was filed with the court registry on 7 August 2017.
9. The applicant complained that the conditions of his detention in Busto Arsizio Prison had amounted to inhuman and degrading treatment in contravention of Article 3 of the Convention. He further alleged that the domestic courts had wrongly based themselves on incorrect information there by failing to afford him reparation for the inadequate conditions he had endured.
THE COURT’S ASSESSMENT
10. The general principles concerning inadequate conditions of detention are well established in the Court’s case-law and have been summarised in Muršić v. Croatia ([GC], no. 7334/13, §§ 96-101, 20 October 2016).
11. The Court also reiterates that in cases of alleged violations of Article 3 of the Convention, it must, in its assessment of the evidence, apply a particularly thorough scrutiny. Where domestic proceedings have taken place, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them (see Cestaro v. Italy, no. 6884/11, § 164, 7 April 2015). Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see Gäfgen v. Germany [GC], no. 22978/05, § 93, ECHR 2010).
12. Turning to the circumstances of the present case, the Court notes that the parties disagreed as to the personal space afforded to the applicant during his detention in Busto Arsizio Prison. The applicant stated that the cell in which he had been detained had measured 8.775 sq. m, giving him less than 3 sq. m of personal space, while the Government, referring to the domestic courts’ findings, argued that the cell had measured 9.11 sq. m, excluding the space taken by the furniture. The Court notes that the domestic courts in their findings, and subsequently the Government, relied on the report submitted by the prison administration. According to the report, the cell in which the applicant and two other inmates were placed measured 9.11 sq. m. The Court accepts this information and dismisses the applicant’s allegation. However, unlike the domestic courts, the Court cannot accept the administration’s contention that the floor surface occupied by the various pieces of furniture had not been taken into account for the purpose of determining the cell’s size and that the actual surface area of the cell exceeded 9.11 sq. m. The Court notes that those comments made by the prison administration were not supported by the above-mentioned report or any other evidence and considers them of little evidentiary value. Accordingly, the Court finds it established that the report indicated the total cell size and, consequently, that the applicant had 3.037 sq. m of personal space at his disposal.
13. Similarly, in the absence of any explanation by the domestic courts as to why they gave precedence to the statement made by the prison administration and disregarded the applicant’s description of the cell, the Court cannot subscribe to the domestic courts’ findings, later relied upon by the Government, that there was no mesh grill on the window in the cell, as stated by the applicant, and that there was sufficient access to daylight.
14. Nevertheless, taking into account the cumulative effect of the conditions of the applicant’s detention and noting the absence of other aggravating factors – the applicant did not dispute that he had had a possibility of at least two hours of daily exercise and regular family visits; that the food had been sufficient and of acceptable quality; and that the sanitary facilities had been hygienic and offered privacy for inmates – the Court does not consider that the conditions of the applicant’s detention during the period between 6 February and 16 May 2013, that is three months and ten days, reached the threshold of severity required to characterise the treatment as inhuman or degrading within the meaning of Article 3 of the Convention (see, by contrast, Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, §§ 8 and 77, 8 January 2013, in which the Court considered the lengthy periods of detention in Busto Arsizio Prison, ranging between approximately two years and four years and four months, to be an aggravating aspect of the conditions of detention).
15. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 March 2025.
Liv Tigerstedt Erik Wennerström
Deputy Registrar President