The ECtHR ruled on the case of Sy V. Italy (no. 11791/20, judgment of 24 January 2022), concerning the violation Articles 3, 5 and 6 of the ECHR, due to the failure to enforce penal courts’ decisions and place a mentally disordered offender in a suitable establishment.

In 2017, the applicant, Giacomo Seydou Sy, was arrested for stalking his former partner and resisting the police. A psychiatric examination established insanity due to severe mental illness. The Court  acquitted him and disposed his placement in a Residence for the execution of security measures (residenza per l'esecuzione delle misure di sicurezza - REMS) because of his social dangerousness. However, the decision was not enforced due to a lack of available places. In 2018, Mr Sy was arrested for theft  and condemned to a short term in detention, even though the psychiatrist stated that he needed to be treated, not detained. After attempting suicide, the applicant was assigned to the psychiatric department of the prison, waiting for a place to be found in a REMS. In May 2020, based on a psychiatric report stating his improvements, Sy was transferred to a therapeutic community from which he escaped the next day. Finally, in July, a place was found in a REMS. In April 2020, Sy applied to the ECtHR against Italy, complaining about the violation of Article 3 (inhuman and degrading treatment and detention in ordinary prison of a bipolar person without a comprehensive therapeutic strategy), Article 5.1.a (inability of the applicant, at the time of serving the sentence, to understand the purpose of social reintegration of the sentence and to benefit from it), Article 5.1.e (continued ordinary detention despite the court ordered his placement in a suitable establishment), and Article 5.5 (absence of means to obtain compensation with a sufficient degree of certainty) of the ECHR. 

The applicant also claimed that Italy violated Article 6.1 of the ECHR, failing to comply with the court's judgment to release the applicant and to place him in a suitable establishment.  Additionally, the applicant asked ECtHR to issue a request for preliminary measures, namely to place Mr. Sy in a therapeutic structure or a REMS. The ECtHR, based on Rule 39 of the ECtHR Regulations, issued such a request. The transfer took place only on 12 May 2020 (and was not successful).

Italy argued that Sy had not exhausted all domestic remedies because he had not challenged the lawfulness of his continued detention. 

The ECtHR rejected this objection, holding that the State was obliged to ensure the enforcement of a court decision without requiring further action from the applicant. Italy also argued the application was out of time because it was filed more than six months after the May 2019 decision ordering release. The ECtHR found that while the complaint could not apply to the first period of detention (2 July to 22 November 2018), the application was admissible for the second period, from 2 December 2018 to 12 May 2020.

Concerning the merits, the ECtHR found a violation of Article 3 of the ECHR. It was ascertained that the applicant suffered from a severe psychosocial disorder and that the medical care provided in prison was inadequate, as treatment focused only on symptoms without a comprehensive therapeutic strategy. These conditions worsened the applicant’s mental health. The ECtHR found that these circumstances constituted inhuman and degrading treatment, in violation of Article 3 of the ECHR.

The ECtHR held that the detention in an ordinary prison from 21 May 2019 to 12 May 2020 was in violation of Article 5.1.e of the ECHR due to the failure to enforce the court's decision to relocate the applicant to the REMS or in another appropriate therapeutic institution. The ECtHR found that Italy had not taken sufficient steps to remedy the situation, and that the lack of available places in REMS did not justify prolonged detention in conditions without a therapeutic purpose, which was incompatible with the ECHR. The ECtHR  also found a violation of Article 5.5 of the ECHR (right to compensation for unlawful detention). The applicant laments that Article 2043 of the Italian civil code does not provide a viable avenue to claim compensation in his case, as it poses the burden of proof entirely on the claimant. The ECtHR concurred with the applicant and found that a compensation mechanism based on Article 2043 is ineffective, particularly in light of the violation of Article 5.1 of the ECHR.

A violation of Article 6.1 of the ECHR was also found, due to Italy’s failure to enforce the final judgment of the Rome Court of Appeal issued on 20 May 2019, which had ordered the applicant’s release. Despite this, the applicant remained in ordinary prison custody.

As to the alleged violation of Article 13 of the ECHR in conjunction with Articles 3 and 5.1 ECHR, the ECtHR did not examine it separately, having already established a violation of the core rights underlying those complaints.

Lastly, the ECtHR found also a violation of Article 34 of the ECHR due to Italy’s 35-day delay in implementing the interim measure it requested. Although Italy cited a lack of available places in REMS and COVID-19 lockdown measures, ECtHR  held that Italy had not taken adequate steps to enforce the interim measure and had failed to justify the delay, also considering that an order to transfer the applicant to a REMS was pending since January 2019.

As regards compensation, the applicant claimed EUR 129,187.74 in respect of non-pecuniary damage, but the ECtHR awarded EUR 36,400, on top of EUR 10,000 in respect of tax, costs and expenses.