I casi italiani in materia di salute mentale e carcere nel contenzioso dinanzi alla Corte europea: il ricorso sistematico alle misure cautelari e la prospettiva di una sentenza pilota

The analysis of the case law of the European Court of Human Rights has shown a systemic problem of a shortage of places available in the residences for the enforcement of security measures ("REMS") in Italy. This is the main reason why the European Court has handed down a number of judgments against the Italian Government. However, on closer inspection, this is only one manifestation of a broader and more structural problem, which cannot be solved simply by increasing the number of places available in such facilities. This needs to be accompanied by an effective reorganization of therapeutic and rehabilitation programs, an increase in the resources allocated, and a systematic, multi-level approach that is better able to protect the rights of prisoners with psychiatric disorders. In light of the case law analysed, the question arose as to whether the European Court should adopt the so-called Pilot judgment procedure. It was found that all the conditions set out in Rule 61 of the Rules of Court were met. All the data in our possession - notably, the systematic use of precautionary measures, the number of similar applications registered and communicated to the Government by the European Court, the various unilateral declarations of acceptance of responsibility for convention violations by the Italian Government, the number of decisions to strike out of the list the applications following unilateral declarations by the Government or amicable settlements - allow us to conclude that the problems concerning the therapeutic treatment reserved for offenders with psychopathologies are structural and deserve an adequate response. In this regard, the Committee of Ministers, responsible for monitoring the measures taken by the Italian Government in the context of the procedure for the execution of the judgments Sy v. Italy, Niort v. Italy, and A.Z. v. Italy, has so far considered the measures adopted by the Italian Government to be unsatisfactory. In light of the above considerations, the authors maintain that the pilot judgment procedure, which allows the Court to specify the measures to be taken and the time frame within which to do so, would certainly help to mitigate the structural problems underlying the cases pending before or already decided by the European Court.