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In a letter addressed to the President of the Senate of Italy, Commissioner O’Flaherty asks members of the Senate to refrain from adopting Bill 1236 on public security, unless it is substantially amended to ensure that it complies with Council of Europe human rights standards.
The Commissioner recalls that the rights to freedom of expression and of peaceful assembly, enshrined in the European Convention on Human Rights, are a cornerstone of democratic society. Member states have a certain margin of appreciation for sanctioning intentional disruptions in the context of public assemblies, however their discretion is not unlimited, as underlined by the case-law of the European Court of Human Rights.
If adopted, Bill 1236 would introduce offences that are defined in vague terms, criminalising, among others, acts such as traffic disruption with one’s own body and protests resorting to passive resistance in prisons and detention centres.
The Commissioner expresses concern at the potential impact of the bill, creating room for the arbitrary and disproportionate application of relevant penalties and restrictions, which would not be consistent with the above-mentioned standards.
Certain measures addressed above restrict the rights of people in prisons or detention centres, who may have limited recourse to institutional avenues to defend their rights. Prisoners continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, which may only be restricted in cases and to the extent foreseen by it. Although the Court considers that, within the context of prisons, Article 11 of the Convention does not confer a right to mix socially with other prisoners at any particular time or place, it does not rule out inmates’ rights of association. Furthermore, prisoners continue to enjoy the right to freedom of expression, which covers certain forms of peaceful protest that may entail passive resistance. In the context of prisoners’ protests, for example in case of hunger strikes, it is essential for the proper examination and management of the situation by the state to ascertain the true intention of and real reasons for the inmates’ protest, as well as ensuring a meaningful response to their complaints and demands. As is apparent from the case-law of the Court and reports of the CPT, as well as from domestic case-law, treatment and conditions in Italy’s prisons and detention centres have been found not to comply with international standards, adding reasons for prisoners to challenge their conditions by peaceful means.
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