CASE OF PROVENZANO v. ITALIE

Conclusion(s)
Preliminary objections dismissed (Art. 34) Individual applications
(Art. 34) Locus standi
No violation of Article 3 – Prohibition of torture (Article 3 – Degrading treatment
Inhuman treatment) (Substantive aspect)
Violation of Article 3 – Prohibition of torture (Article 3 – Degrading treatment
Inhuman treatment) (Substantive aspect)
Non-pecuniary damage – finding of violation sufficient (Article 41 – Non-pecuniary damage
Just satisfaction)

FIRST SECTION

CASE OF PROVENZANO v. ITALY

(Application no. 55080/13)

JUDGMENT

STRASBOURG

25 October 2018

FINAL

25/01/2019

This judgment has become final under Article 44 ? 2 of the Convention. It may be subject to editorial revision.

In the case of Provenzano v. Italy,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Guido Raimondi,
Krzysztof Wojtyczek,
Ksenija Turkovi?,
Armen Harutyunyan,
Jovan Ilievski, judges,
and Renata Degener, Deputy Section Registrar,
Having deliberated in private on 25 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 55080/13) 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?) by the son and the partner of an Italian national, Mr Bernardo Provenzano (?the applicant?). The application was lodged on the applicant?s behalf on 25 July 2013. The applicant died on 13 July 2016. On 11 August 2016 the applicant?s son, Mr Angelo Provenzano, expressed the wish to pursue the proceedings before the Court.
2. The applicant was represented by Mrs R.A. Di Gregorio, a lawyer practising in Palermo. The Italian Government (?the Government?) were represented by their Agent, Mrs E. Spatafora, and their co-Agent, Mrs M.L. Aversano.
3. The applicant alleged, in particular, that he had not received adequate medical care in prison and that the continued imposition of the special prison regime to which he was subjected, notwithstanding his health status, breached his rights under Article 3 of the Convention..
4. On 6 July 2016 the complaints concerning Article 3 were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 ? 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1933 and was detained in Milan up to the time of his death in 2016.
A. Background to the case
6. The applicant, who had been a fugitive on the run from the authorities (latitante) for over forty years, was arrested on 11 April 2006.
7. Several sets of criminal proceedings were brought against the applicant, as a result of which he was sentenced to several terms of life imprisonment for, amongst other offences, membership of a mafia-type criminal organisation, mass murder (strage), multiple homicide, aggravated attempted homicide, drug trafficking, kidnapping, criminal coercion, aggravated theft, and the illegal possession of firearms.
8. Other criminal proceedings against the applicant were ongoing at the time the application was lodged before the Court. In the context of one such set of proceedings, on 7 December 2012 the preliminary hearing judge (giudice dell?udienza preliminare, hereafter ?the GUP?) of the Palermo District Court ordered an expert evaluation of the applicant?s health in order to assess his ability to understand and participate rationally in the preliminary hearing.
9. On 12 December 2012 the court-appointed experts carried out a first examination. However, they were unable to undertake further assessments, because on 17 December 2012 the applicant underwent surgery to remove a subdural haematoma, and was then in recovery (see paragraph 25 below). Based on their first examination conducted before the surgery and the applicant?s past medical records, the experts nonetheless reported that the applicant had displayed reduced consciousness and responsiveness to his surroundings, as well as a limited ability to express himself.
10. By an order of 8 January 2013 the GUP adjourned the proceedings against the applicant until such time as he had recovered from the surgery.
11. Following a documented improvement in his condition, the GUP ordered a new expert evaluation, which was carried out on 1 March 2013. The experts found that the applicant?s cognitive situation impaired his ability to interact with the outside world and communicate in a coherent and meaningful manner. They thus concluded that the applicant was not in a condition to consciously participate in the preliminary hearing.
12. By an order of 5 March 2013 the GUP suspended the proceedings against the applicant.
13. On 21 May 2014 the Guardianship Judge at the Milan District Court issued a guardianship order appointing the applicant?s son, Angelo Provenzano, as his limited guardian (amministratore di sostegno). The court observed that the applicant?s son had previously been appointed as the applicant?s legal guardian following the applicant?s being sentenced to life imprisonment and the consequent legal incapacitation such a sentence entailed under domestic law. For the purposes of the proceedings before it, the court gave the applicant?s son authority over decisions that concerned his health-care and personal assistance needs. The court also authorised the applicant?s son to be served with the applicant?s legal correspondence, and conferred upon him the power to appoint counsel in criminal and civil proceedings. On 27 May 2014 Angelo Provenzano was sworn in as the applicant?s guardian.
14. The applicant was detained in several Italian correctional facilities. According to the material in the case file, he was detained in the Novara Correctional Facility from an unspecified date until 27 April 2011, when he was transferred to the Parma Correctional Facility. On 7 June 2013 he was admitted to the correctional wing (reparto protetto) of Parma General Hospital, where he remained until his transfer to the Treatment and Diagnostic Centre (centro diagnostico terapeutico) of the Milan Opera Correctional Facility on 5 April 2014. On 9 April 2014 he was admitted to the correctional wing of San Paolo Hospital in Milan, where he was hospitalised until his death.
B. The applicant?s health, the medical care administered to him, and other relevant facts concerning the conditions of his detention
15. The applicant suffered from a number of chronic medical conditions, including vascular encephalopathy, hepatopathy linked to HCV (the hepatitis C virus), Parkinson?s disease, and arterial hypertension. It is apparent from his medical history that he underwent a radical prostatectomy in 2003 and a partial thyroidectomy on an unspecified date. The applicant?s clinical condition was also characterised by a decline in his cognitive functioning.
16. The prison medical records from May 2011 to April 2013 show that the applicant?s health was regularly monitored by medical and nursing staff at the Parma Correctional Facility?s health unit. In addition to such monitoring, there is a record of physicians being called to examine the applicant when he complained about specific ailments, or when they were requested by the nursing staff.
17. During the same period, the prison medical records show that a large number of specialist consultations were arranged and carried out. The applicant was examined by cardiologists, infectious disease specialists, urologists, endocrinologists, otolaryngologists, pulmonologists, orthopaedists, physiatrists, and nutrition specialists, and most of the examinations occurred on a regular basis. He also had several surgical consultations.
18. A large number of diagnostic tests were performed on him, ranging from routine blood tests and echocardiograms to various ultrasounds (renal, thyroidal, and abdominal), CAT (computerised axial tomography) scans, PET (positron emission tomography) scans, PSA (prostate-specific antigen) tests, X-rays, and colonoscopies.
19. With specific regard to the applicant?s neurological situation, the medical register shows that he was examined several times by a neurologist, a psychiatrist and a psychologist, and that tests were performed.
20. Each entry in the medical register by prison medical staff includes a section on the therapeutic plan for the management of the applicant?s chronic illnesses, health issues deriving from his prostatectomy and thyroidectomy, and other emerging health issues, with relevant drug dosages and a record of the medication administered.
21. On 17 October 2012 a doctor at the correctional facility?s medical centre reported an increase in the applicant?s blood pressure and transferred him to the emergency department of the civilian hospital in Parma, where he was diagnosed with a hypertensive crisis. A CAT scan and other diagnostic tests were performed, and the applicant was examined by specialists. The neurologist who examined the applicant described him as a subject with cognitive deterioration on a vascular basis. Following an improvement in his overall condition, he was discharged on 19 October 2012.
22. On 3 December 2012 the duty doctor transferred the applicant to the civilian hospital in Parma, as he appeared disorientated and was refusing to eat or take his prescribed medication. The duty doctor also reported that the applicant had fallen, with no consequences, but noted that this was among more than four accidental falls that had occurred.
According to the civilian hospital record, an ultrasound was performed and the applicant was examined by a neurologist, a psychiatrist and a nutrition specialist. The neurologist who examined him on 3 December detected signs of initial cerebral deterioration which could be attributed to degenerative and vascular causes, and the neurologist who visited him the next day found probable cognitive deterioration on a vascular basis. The applicant was declared fit to be discharged on 7 December 2012.
23. On 12 December 2012 the duty doctor was called by a prison officer, who reported that the applicant had slipped in his cell and fallen. He described the patient as alert and somewhat cooperative, although his verbal expression not readily comprehensible. He examined the applicant. He checked for signs of trauma and found none, and examined his pupils, which were isocoric, isocyclic and reactive to light. He concluded that no neurological deficits could be detected. He also examined, amongst other things, the applicant?s heart rate, blood pressure, and blood sugar levels. While no repercussions worthy of note were registered, amongst other things, the doctor suggested that the applicant be placed with a cellmate so as to ensure, amongst other things, the timely signalling of any worsening of his conditions. The doctor further recommended that his cell be equipped with a bed with safety rails.
24. On 15 December 2012 the duty nurse reported that the applicant had fallen out of bed while sleeping. The duty doctor examined him and found him to be alert, cooperative and oriented. The doctor noted what he described as minimal bruising above the applicant?s right eye, and reported normal vital signs. He examined the applicant on another occasion on the same day, reported normal cardiorespiratory values, and instructed the nurse to monitor his vital signs.
25. On 17 December 2012 the duty nurse called the doctor, as the applicant was not responding to verbal or painful stimuli. He was transferred to the emergency room of the civilian hospital in Parma, where he underwent urgent surgery for the removal of a subdural haematoma. He was then placed in the hospital?s long-term care unit, and later in its correctional wing.
26. In the application form it is stated that the applicant?s counsel lodged a criminal complaint with the Parma public prosecutor alleging, amongst other things, that the prison administration had failed to properly care for the applicant, and that the he had been left without medical assistance following the fall on 15 December 2012. However, there are no specific details about when that complaint was lodged, and no information was provided as to its outcome.
27. On 18 February 2013 the hospital doctors decided that the applicant could be discharged.
28. On 26 February 2013 an inspection was carried out by two doctors from the correctional facility?s medical unit to assess whether the premises where the applicant was to be accommodated on his return were compatible with his health and care needs.
29. On the same day the prison management issued a report summarising the structural changes that had already been carried out in view of the applicant?s return ? such as the installation of a new bed with safety rails ? and changes which were scheduled. Those scheduled changes included, amongst other things, an intervention in respect of the electrical system, planned for the same day, in order to plug in a special mattress to prevent bedsores and install an oxygen tank for medical emergencies.
30. On 1 March 2013 a personalised care plan had been drawn up by the correctional facility?s medical unit in view of the applicant?s return. The plan outlined the applicant?s general and specific needs, and included a schedule of regular medical examinations, a nutrition and hydration plan, and a plan to avoid bedsores and other consequences of long-term bed rest. Specialist consultations to follow up on the applicant?s medical conditions were requested and scheduled. The care plan also concerned assistance which the applicant required with daily tasks he could no longer perform, such as taking care of his personal hygiene on a daily basis. It also provided for the management of his incontinence and scheduled times at which his incontinence pads should be changed, with provision for additional changes according to his needs.
31. On 5 March 2013 the applicant was transferred back to the Parma Correctional Facility. The medical register from that date to the date of his transfer to the civilian hospital in Parma shows that, in addition to the treatment of his chronic conditions, the applicant underwent physiotherapy sessions to improve his mobility, coupled with passive mobilisation, also during the night, in order to avoid bedsores.
32. On 7 June 2013 the applicant was admitted to the civilian hospital in Parma. He was diagnosed with a bacterial infection and a yeast infection. Following a consultation with an infectious disease specialist, he was prescribed treatment. He remained hospitalised in the civilian hospital until his transfer on 5 April 2014. The material on file indicates that, during this period of hospitalisation, the applicant had daily medical examinations, periodic visits from specialists, and diagnostic tests.
33. On 29 June 2013 the applicant?s son lodged a criminal complaint with the Parma public prosecutor, alleging that his father was not being properly cared for, in that his underwear, which had been collected from the correctional facility on 22 June 2013, had been stained with bodily fluids. No information was provided by the parties as to the outcome of those proceedings.
34. On 10 October 2013 the Parma Prison administration submitted a report on the applicant to the General Directorate for the Treatment of ?Section 41 bis? Detainees. The report attested that an inspection had been carried out by the local health authority on 26 February 2013 (see paragraph 28 above). It also certified and provided documentation to the effect that health-care assistants and nurses had taken care of the applicant?s personal hygiene on a daily basis as of 5 March 2013, in accordance with the instructions set out in the personalised care plan (see paragraph 30 above).
35. On 23 December 2013 the hospital in Parma submitted a report updating the Parma Prison administration on the applicant?s clinical situation. He was diagnosed by the reporting doctor as suffering from serious cognitive deterioration. He was described as being necessarily bedridden due to a hypokinetic syndrome, and completely dependent on others.
The applicant?s neurological situation was described as stable yet having deteriorated. His verbal expression, when present, was characterised by the production of a few incomprehensible syllables, which meant that the reporting doctor had had difficulties in assessing his degree of comprehension.
The applicant was receiving artificial nutrition and hydration via a nasointestinal feeding tube which had been put in place on 6 September 2013 due to his confirmed inability to feed himself.
36. On 29 January 2014 the Emergency Department of Parma General Hospital submitted a report updating the Director of Parma Prison on the applicant?s clinical situation. The first part of the report mainly repeated the findings of the report of 23 December 2013. Another part focused on the applicant?s cognitive status. In this respect, the reporting doctor stated that, during medical examinations, the applicant sometimes answered simple questions when he was verbally stimulated, but his expression was mostly incomprehensible.
37. On 19 March 2014 Parma General Hospital submitted another report updating the Parma Prison administration on the applicant?s clinical situation. Amongst other things, the reporting doctors had identified progressive atrophy of his muscular apparatus and the presence of small lesions caused by bedsores. His neuro-cognitive situation remained unchanged. If asleep, he woke up when stimulated. He rarely uttered intelligible words or carried out elementary tasks when stimulated. His verbal expression, when present, was described as incomprehensible. The reporting doctor confirmed the previous report?s finding to the effect that the applicant was completely dependent on others for everything. Since the insertion of the nasointestinal feeding tube, his necessary daily calorie intake had been ensured, with a consequent improvement in his nutritional status and weight.
38. On 5 April 2014 the applicant was released from Parma General Hospital. On the same day he was transferred to the Treatment and Diagnostic Centre of the Milan Opera Correctional Facility and was scheduled to be transferred to San Paolo Hospital for, amongst other things, an examination by a neurologist and an oncologist, a re-evaluation of his artificial nutritional support strategy, and a general re-evaluation of his treatment.
39. On 9 April 2014 the applicant was transferred to San Paolo Hospital in Milan, where he remained until the time of his death.
40. It is apparent from the material on file that, during his period of hospitalisation at San Paolo Hospital, the applicant had daily medical examinations, periodic visits from specialists and a wide range of tests (routine blood tests, regular monitoring of glycaemia, renal, hepatic and thyroid function, blood pressure, cardiac frequency, and daily hydration monitoring, as well as diagnostic tests such as CAT scans). There is evidence of treatment of the applicant?s bedsores and treatment to prevent the problem being aggravated, treatment of urinary infections linked to long-term catheterisation, treatment of intestinal problems and adjustments to the applicant?s hydration and nutritional support.
41. On 11 April 2014 the applicant underwent a neuropsychological examination by a specialist in San Paolo Hospital. He was described as being alert but not complying with instructions, aside from very simple ones. The reporting doctor stated, inter alia, that if the applicant was left on his own he voiced scarcely comprehensible sentences lacking a framework or grammatical structure. One of the conclusions the doctor reached was that the applicant?s lack of cooperation made it impossible to evaluate and quantify his cognitive status.
42. On 11 June 2014 the head of the ward where the applicant was hospitalised submitted a report updating the court in Rome responsible for the execution of sentences (?the Rome Court?) on the applicant?s clinical situation. The reporting doctor confirmed the findings of the report by the Parma General Hospital authorities of 19 March 2014 in terms of the applicant?s neuro-cognitive situation, which he described as seriously compromised, as well as his progressive muscular atrophy, lack of mobility, and complete dependence on others. The reporting doctor concluded that there had been a serious deterioration in the applicant?s clinical state, and his condition was worsening. As to nutrition, in addition to the nasointestinal tube, artificial nutritional support had to be provided by central venous access. In the doctor?s opinion, in the light of his current state of health, the applicant could only receive adequate medical treatment in a long-term care unit within a hospital. The doctors certified that the facility in which he was hospitalised had the necessary medical staff and equipment to provide adequate care and treatment, and recommended that he remain in the hospital.
43. On 8 August 2014 a report was submitted by two independent medical experts appointed by the Milan Court. The experts had been asked to provide an assessment of the applicant?s overall state of health and to specify, inter alia, whether he could receive adequate treatment in the hospital ward where he was currently detained.
Following consideration of a summary of his medical history, clinical chart and other health documentation, the experts provided an account of their examination of the applicant, whom they recorded as being hospitalised in the Internal Medicine Division, in the ?[section] 41 bis area? of the hospital?s correctional wing. He was described as bedridden and was noted as being physically restrained because of his attempts to remove his feeding tube. His language and elocution could not be assessed; when greeted, he uttered things which were incomprehensible, to the experts and also to the health staff he had contact with on a daily basis. His state of consciousness was only examinable in terms of his being awake or asleep, and neither his space-time orientation nor his thought function could be conclusively assessed. His degree of collaboration was hard to gauge, owing to his incomprehensible verbal expression.
The experts described the applicant?s clinical situation as complex and characterised by multiple pathologies, although none of those pathologies were at an acute stage. The pathologies with the greatest functional impact were identified as being extrapyramidal syndrome and serious cognitive decline. The applicant?s being permanently bedridden, and the need for artificial nutrition and a permanent urinary catheter were permanent conditions not likely to improve. The experts reiterated his complete lack of autonomy in terms of performing basic everyday functions, and highlighted the need to provide him with constant assistance for his nutrition, hydration, personal hygiene, and to prevent complications linked to long-term bed rest. His cognitive situation was described as having worsened since the previous neuropsychological examination (see paragraph 41 above).
As to the applicant?s continued hospitalisation ? albeit in the context of detention ? and the adequacy of the care he received, the experts considered that San Paolo Hospital guaranteed an excellent level of treatment and the presence of clinical specialists who could ensure timely interventions in the event of complications. The absence of the kind of treatment which the applicant was receiving at that point would lead to his death in a very short time.
44. In a medical report of 11 August 2014 submitted by San Paolo Hospital to the Milan Opera Prison administration, the reporting doctor described the applicant?s condition as stable and reiterated the presence of a serious cognitive decline that made the applicant unable to maintain interactions with people and take care of himself.
45. The latter findings were confirmed in a subsequent report issued on 17 September 2014.
46. Various other reports were issued by doctors of San Paolo Hospital in Milan between April 2015 and March 2016. The applicant?s clinical situation was generally described as stable, although his neurological functions were characterised as being in progressive decline (report of 12 June 2015) and his cognitive functioning was described as having seriously deteriorated (report of 17 March 2016). Throughout the entire period the applicant was bedridden and received all his hydration and nutritional support via a nasointestinal feeding tube.
47. According to the most recent medical reports on file, issued by San Paolo Hospital in Milan on 9 and 13 July 2016, the applicant?s clinical condition deteriorated severely and he entered a preterminal phase. The report of 13 July 2016 states that the applicant?s relatives were granted access to his room and he died on the same day.
C. Domestic proceedings concerning the applicant?s health and detention
48. It is apparent from the material in the case file that, during the applicant?s detention in Parma and Milan, his lawyers lodged applications with different courts responsible for the execution of sentences, seeking the suspension of his prison sentence for medical reasons under Articles 146 and 147 of the Criminal Code (see paragraphs 81 and 82 below for the relevant domestic law provisions) and the replacement of his detention with more lenient custodial measures.
49. By a decision of 3 May 2013 the Bologna court responsible for the execution of sentences (?the Bologna Court?) held that there were no grounds for modifying the applicant?s sentence on health grounds. The court found that the applicant?s medical conditions were not in such an advanced state that he was no longer responding to treatment, a necessary condition for the application of Article 146 of the Criminal Code.
The court also found that discretionary suspension of the sentence under Article 147 was not warranted. It considered that it could not be stated that the applicant?s medical conditions required treatment which could not be provided in custody, albeit custody coupled with admission to a civilian hospital whenever necessary. The Bologna Court considered that he had received and was receiving medical treatment, frequent medical examinations, and diagnostic tests. It underlined that the applicant had been admitted to a civilian hospital when the necessary treatment could not be administered in the correctional facility, even for extended periods of time. It also noted that the proximity of the civilian hospital to the correctional facility made it possible for the applicant to be admitted to the emergency department in a timely fashion and whenever necessary.
The court reiterated that a court deciding on discretionary suspension of a sentence on health grounds must also take into account, as a relevant factor, the possibility that the individual applying for the suspension might engage in criminal behaviour (see paragraph 82 below). In this regard, the court considered that the applicant was a ?socially dangerous? person who had been arrested after many years as a fugitive, and who was being tried for and had already been convicted of extremely serious crimes.
50. By a decision of 27 August 2013 the Bologna Court held that there were no grounds for modifying the applicant?s sentence on health grounds. The court found that the applicant?s medical conditions were not in such an advanced state that he was no longer responding to treatment. Moreover, the court considered that he would not benefit from additional or alternative medical treatment if his sentence were suspended.
The court was also not persuaded that the conditions for discretionary suspension under Article 147 obtained. It noted that the medical documentation it had considered showed that the applicant?s medical conditions were being adequately monitored and treated in the correctional facility, with external hospitalisation being sought when required. Referring to the medical reports in its possession, the court noted that the applicant was responding positively to treatment and in the manner expected, given his advanced age and the nature of his medical conditions.
As in its decision of 3 May 2013, the court further considered the danger that the applicant, a socially dangerous individual, could commit criminal offences in the event of his sentence being suspended. In this connection, the court considered that, notwithstanding the applicant?s proven cognitive deficit, the documentation available to it did not allow it to exclude his ? albeit fluctuating and diminished ? ability to comprehend and communicate.
51. The applicant appealed against the decision before the Court of Cassation. On 4 April 2014 the Court of Cassation dismissed the appeal. It reiterated the Bologna Court?s findings to the effect that the applicant?s health conditions were being adequately monitored, and the necessary medical treatment was being administered in the correctional facility, with external hospitalisation when required. The court was satisfied that the Bologna Court had relied on the most recent medical reports in its possession in concluding that the conditions required for a stay of execution of the applicant?s sentence under Articles 146 and 147 of the Criminal Code had not been met.
52. By a decision of 3 October 2014 the Milan Court held that there were no grounds for modifying the applicant?s sentence on health grounds. In making its assessment, the court relied on the content of the report by the two independent experts it had appointed (see paragraph 43 above). The court reiterated that, in cases such as the one under examination, the primary consideration had to be the best interests of the detainee in terms of safeguarding his health. The court considered that the applicant was not being detained in a correctional facility, but rather he had been placed in a highly specialist civilian hospital which could provide him with the most appropriate and effective care and treatment for his medical conditions. Moreover, in the court?s view, his placement in the correctional unit and not within the general hospital population guaranteed an even higher level of attention and vigilance with respect to his critical health conditions. The court concluded that the applicant?s situation at the time of the decision was the one that best secured his right to health. The applicant appealed against that decision before the Court of Cassation.
53. By a decision of 11 November 2014 the Bologna Court held that there were no grounds for modifying the applicant?s sentence on health grounds. It first of all reiterated and expressed its agreement with the conclusions of the Milan Court in its decision of 3 October 2014. It referred to the reports prepared by the medical staff at San Paolo Hospital and the independent medical experts appointed by the Milan Court in concluding that, notwithstanding the seriousness of the applicant?s medical conditions, he was not being detained in a correctional facility, but rather in a civilian hospital, and was responding to the treatment administered in that setting.
54. By a decision of 9 June 2015 the Court of Cassation dismissed the applicant?s appeal lodged against the Milan Court?s decision of 3 October 2014. It considered that the reasoning of the Milan Court hinged on the need to safeguard the detainee?s right to health to the fullest extent possible, and could not be deemed to be at odds with the provisions of the Criminal Code regulating stays of execution of prison sentences for health reasons.
55. By a decision of 11 July 2016 the Milan judge responsible for the execution of sentences (magistrato di sorveglianza) decided, on a provisional basis and pending a decision of the court responsible for the execution of sentences, that no urgent interim measure entailing a stay of execution of the applicant?s sentence was warranted. The judge found, inter alia, that the applicant was being treated in a facility that guaranteed excellent levels of care and which had medical and nursing staff of an extremely high quality, and that his detention in the hospital did not conflict with the common understanding of humanity.
D. The prison regime provided for in section 41 bis of the Prison Administration Act
56. On 13 April 2006 the Minister of Justice issued a decree ordering that the applicant should be made subject to the special prison regime provided for in the second subsection of section 41 bis of the Prison Administration Act (see paragraphs 83 – 86 below for the domestic law provisions).
57. The 2006 decree imposed the following restrictions:
? restrictions on visits by family members (a maximum of a single one hour visit per month);
? no visits with non-family members;
? a prohibition on using the telephone;
? no sums of money above a fixed amount to be received or sent out;
? no more than two parcels to be received per month, not exceeding a certain weight, but permission to receive two special parcels per year containing clothing and bed linen;
? no right to participate in elections for prisoners? representatives or to be elected as a representative;
? no handicrafts;
? no food requiring cooking to be purchased;
? no more than two hours? outdoor exercise per day, of which one could be spent in the library facilities, gym, and so on, and in groups of no more than four persons.
58. In addition, incoming and outgoing correspondence was to be monitored, subject to prior authorisation by the judicial authority.
59. The application of the special regime was subsequently extended for periods of one or two years, via extension orders issued on 5 April 2007, 3 April 2008, 2 April 2009, 1 April 2010, 28 March 2012, 26 March 2014 and 23 March 2016.
60. On 8 March 2013, in an application addressed to three different courts for the execution of sentences (Bologna, Rome and Parma) as well as to the Minister of Justice, the applicant?s counsel sought revocation of the special prison regime provided for by section 41 bis of the Prison Administration Act, a key argument being that, in the light of the deterioration in the applicant?s cognitive functioning, the reasons as to why the regime had been applied originally were no longer relevant.
61. On 22 July 2013 the District Anti-Mafia Prosecution Office (Direzione Distrettuale Antimafia, hereafter ?the DDA?) of Caltanissetta expressed a favourable opinion on revocation of the special prison regime. The office acknowledged that there had been a deterioration in the applicant?s health, noting his compromised cognitive functioning, as evidenced by the medical documentation available to it. It noted in particular the conclusions of the report by the experts appointed by the Palermo GUP (see paragraph 11 above) to the effect that the applicant?s cognitive functioning had deteriorated and his ability to communicate had been impaired. In the light of such findings, the office expressed the opinion that the reasons which had initially justified the imposition of the special prison regime no longer obtained.
62. By a decision of 27 August 2013 the Rome Court declared the applicant?s application of 8 March 2013 inadmissible. It considered that the power to revoke the imposition of the section 41 bis special prison regime per se rested with the Minister of Justice. The court only had jurisdiction in relation to applications lodged against decisions issued by the Minister of Justice, such as orders to renew the application of the special regime or refusals by the Minister to revoke orders for the regime. The court was therefore precluded from examining the merits of the application.
63. On 21 November 2013 the applicant?s counsel lodged an application with the Minister of Justice seeking revocation of the section 41 bis special prison regime. On an unspecified date the Minister of Justice dismissed the application. The decision was served on the applicant?s son on 11 February 2014.
64. On 13 February 2014 the applicant?s counsel lodged an application against the latter decision with the Rome Court. He reiterated the arguments advanced in the application of 8 March 2013.
1. Renewal order of 26 March 2014
65. On 26 March 2014 the Minister of Justice issued an order renewing the application of the special prison regime for two years. It was found that the applicant?s ability to maintain contact with members of the criminal organisation had not ceased, and regard was also had to his ?particular and concrete dangerousness?.
66. The order reiterated the rationale underlying the special prison regime, and restated in particular that its imposition constituted a preventive measure in the interests of ensuring public safety and order, and did not serve any punitive purpose.
67. The order also reviewed some of the applicant?s convictions for extremely serious crimes, including multiple aggravated homicides, aiding and abetting mass murder (stragi), and criminal association, which indicated his high level of responsibility in the criminal organisation.
68. The order further gave an overview of information provided by different police bodies, prosecution offices, the Anti-Mafia Investigations Directorate, and the Minister of the Interior, which had been requested with a view to ascertaining the persistence of the conditions justifying the extension of the regime (istruttorie relative alla preesistente attualit? ed alla permanente gravit? delle esigenze di prevenzione ai fini della proroga). It also summarised opinions issued by the DDAs of Florence and Caltanissetta in February 2014 and by the National Anti-Mafia and Counterterrorism Prosecution Office (Direzione Nazionale Antimafia e Antiterrorismo, hereafter ?the DNA?) and the Palermo DDA in March 2014.
69. The order stated that the Palermo, Caltanissetta and Florence DDAs had expressed an unfavourable opinion as to the renewal of the restrictions, in the light of the applicant?s health conditions. However, it stated that the Palermo DDA had found that the applicant was still socially dangerous.
70. The order focused in particular on the findings of the DNA, which outlined the applicant?s criminal profile as well as Cosa Nostra?s (the Sicilian Mafia) ongoing criminal activities, and called attention to the fact that one of the most prominent members of the applicant?s criminal organisation was still on the loose. As per the text of the order, the DNA further found that, on the basis of the expert medical evidence in its possession, it could not be concluded that there had been a complete annihilation of the applicant?s attention, comprehension and orientation abilities at that time, but rather only a ? non-quantifiable ? deterioration. This, in turn, could not exclude the possibility that the applicant could communicate orders to the criminal organisation if detained in the context of a normal prison regime. The applicant?s health was also addressed in terms of whether the imposition of the special prison regime was hindering the medical treatment that he needed in view of his health problems, which, in the office?s opinion, it was not. The DNA concluded that the renewal of the restrictions was still considered necessary.
71. The order also focused on the Minister of the Interior?s opinion summarising the findings of recently concluded investigations confirming the applicant?s prominent role in the criminal organisation. The outcome of such investigations had also shed light on the means by which the applicant?s support network had enabled him to remain in hiding, the communication system between himself and prominent fugitives during their time in hiding, and his use of coded messages to convey the organisation?s strategies.
2. First set of proceedings before the Rome Court
72. On 31 March 2014 the applicant lodged an application against the Minister of Justice?s renewal order of 26 March 2014. The applicant?s counsel argued that the special prison regime ought to be suspended due to the applicant?s psychophysical condition, and provided medical documentation in support of that argument.
73. By a decision of 5 December 2014 the Rome Court dealt with the applications of 13 February 2014 and 31 March 2014 jointly and dismissed them both. Some salient points of the decision may be summarised as follows.
The court reviewed the applicant?s arguments and the medical documentation available to it and focused on the applicant?s neurological condition. It quoted extracts from a report of a neuropsychological examination performed on the applicant on 25 November 2014 indicating that he was bedridden, that he alternated between being asleep and being awake, and that, if appropriately stimulated, he sometimes formulated words that made sense or carried out elementary tasks. The applicant was described as alert and occasionally ?reachable?, but the report noted that he did not comply with instructions. The court noted that a conclusive assessment of his cognitive skills had not been possible due to his severely compromised motor function, coupled with his inability to concentrate and general lack of cooperation.
The court thus acknowledged the existence of a serious decline in the applicant?s cognitive functioning. However, notwithstanding that decline, on the basis of the medical documentation available to it, the court concluded that it could not with absolute certainty rule out the possibility of the applicant being able to convey criminally relevant messages pertaining to the organisation?s criminal activities via family members or other individuals if he were allowed unregulated contact with the outside world. The court also relied on reports from health-care staff in the hospital ward which indicated that the applicant had transient moments of lucidity alternating with moments of confusion, and that at times he replied to their questions in a comprehensible manner. In conclusion, in the court?s view, the applicant?s clinical status could not be considered such as to preclude the communication of messages or criminal instructions.
The court reiterated that the applicant, the leader of Cosa Nostra for decades, was considered to be an individual who posed a great threat to national security and society at large. It further reiterated that during his time in hiding he had relied on a solid support network and managed to run the criminal organisation through so-called pizzini, apparently simple messages which concealed orders for the criminal network. Thus, in the court?s view, the criminal organisation could obtain instructions for carrying out criminal activities by receiving even simple messages from the applicant, given his position within the organisation. It also noted that one of the key and most dangerous individuals belonging to the applicant?s organisation was still a fugitive at the time.
Based on the foregoing considerations, the court concluded that the extension of the section 41 bis prison regime was still fully justified, in the interests of public order and safety.
3. The renewal order of 23 March 2016
74. On 23 March 2016 the Minister of Justice issued an order renewing the application of the special prison regime for another two years. As with the 2014 order, he held that the applicant was still able to maintain contact with members of the criminal organisation who were still at large, and also had regard to his ?particular and concrete dangerousness?. The minister confirmed the renewal of all the restrictions in place (see paragraph 57 above). Some salient points of the order may be summarised as follows.
75. As with the 2014 order, the Minister of Justice reiterated the regime?s rationale and purpose and provided an overview of information provided by different police bodies, prosecution offices, and the Minister of the Interior ? information which had been requested with a view to ascertaining the persistence of the conditions justifying the extension of the regime. The order summarised opinions issued by the DDAs of Florence, Caltanissetta and Palermo in February 2016 and the DNA in March 2016.
76. The order acknowledged that the Caltanissetta and Florence DDAs had confirmed their previous negative opinion as to the renewal of the regime with regard to the applicant, and that the Caltanissetta DDA had relied on the deterioration in the applicant?s health to reach its conclusions, while the Florence DDA?s opinion had hinged on the finding that there were no longer any ongoing criminal investigations involving the applicant. On the other hand, the Palermo DDA and the DNA confirmed that there was a need for the renewal of the special prison regime.
77. As reported in the order, the Palermo DDA had concluded that the application of the section 41 bis regime was still absolutely necessary to prevent and interrupt the applicant?s lasting and dangerous relations with the outside world and with other detainees which would allow him to pursue the illegal activities that he had headed for decades. The DDA focused on, inter alia, the applicant?s criminal history and his leadership role in Cosa Nostra, reviewing his decisive participation in a large number of criminal acts, from mass murder to extortions, and noting the control he had exercised over economic activities which had allowed him to acquire considerable assets. The DDA provided details on the support network which the applicant had had within the organisation ? the network had allowed him to stay in hiding for over forty years and manage multiple aspects of the criminal enterprise ranging from resolving disputes to commissioning murders. It highlighted that a prominent member of the criminal organisation was still on the run from the authorities.
With regard to the applicant?s health, the Palermo DDA stated that, on the basis of the clinical information in its possession, it agreed with the Rome Court?s decision (see paragraph 73 above), and it quoted an extract from the decision in which the court had stated that it could not rule out with absolute certainty the applicant?s being able to convey criminally relevant messages pertaining to the organisation?s criminal activities.
78. As reported in the order, the DNA concluded that the combination of elements that had warranted the initial application of the special prison regime remained unchanged in its view. It relied primarily on the applicant?s ?criminal profile?, his multiple convictions for heinous crimes, and the ongoing activities of Cosa Nostra and its continuous reorganisation, in addition to the fact that a prominent member of the criminal organisation who had had a documented relationship with the applicant in the past was still on the run.
With regard to the applicant?s health, the DNA reiterated the content of its 2014 opinion on the extension of the special prison regime and quoted extracts from it to the effect that the imposition of such a regime in no way interfered with the applicant?s medical care, and modifying the regime would not have an impact on his health. The DNA also quoted an extract from its 2014 opinion where it had found that, based on the documentation available to it, it did not appear that the applicant?s attention, comprehension and orientation in space and time had completely ceased, but had only deteriorated.
4. Second set of proceedings before the Rome Court
79. On 8 April 2016 the applicant?s counsel lodged an application against the Minister of Justice?s renewal order with the Rome Court.
80. On 16 September 2016 the Rome Court discontinued the proceedings due to the applicant?s death.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Suspension of a prison sentence on health grounds
81. The relevant parts of Article 146 of the Italian Criminal Code (?mandatory suspension of sentences?) provide that:
The execution of a penalty of a non-pecuniary nature shall be suspended: …
(3) with respect to a person suffering from full-blown AIDS or serious immunodeficiency … or [some] other particularly serious illness resulting in his or her state of health being incompatible with detention, when the illness is at such an advanced stage that it no longer responds to treatment, according to medical certification by the prison or external medical service.
82. The relevant parts of Article 147 of the Italian Criminal Code (?discretionary suspension of sentences?) provide that:
The execution of a penalty of a non-pecuniary nature may be suspended:
… if a sentence involving the deprivation of liberty is enforced against an individual suffering from serious physical infirmity … [such a measure] shall not be adopted, or, if it is adopted, shall be revoked if there is a concrete danger of criminal offences being committed.
B. Section 41 bis special prison regime
83. Section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975), as amended by Law no. 356 of 7 August 1992 and Law no. 94 of 15 July 2009, gives the Minister of Justice the power to suspend the application of the ordinary prison regime in whole or in part, by means of a reasoned decision, on the grounds of public order and security, in cases where the ordinary prison regime would conflict with these requirements.
84. Subsection 2 bis of section 41 bis provides that the Minister of Justice may issue an order renewing the application of the special prison regime unless it emerges that the ability of the detainee to maintain contact with the criminal organisation to which he belonged no longer obtains.
85. The same subsection lists some of the factors to be taken into account in order to ascertain whether the defendant has the above-mentioned ability to maintain contact: his criminal profile, the position he occupied in the criminal enterprise, the continuation of the criminal enterprise?s activity, new prosecutions against the detainee which have previously not been taken into account, the results of incarceration, and the living standards of the detainee?s family.
86. The same subsection further specifies that the mere passage of time does not constitute, of itself, a sufficient element to exclude a defendant?s ability to maintain contact with the criminal organisation of which he was a member.
87. Subsection 2 quinques of section 41 bis provides that an application (reclamo) against a renewal order may be lodged with the Rome court responsible for the execution of sentences, which will verify, by examining the arguments put forward in the application and the findings listed in the renewal order, whether the criteria provided for by law for the adoption of such a decision have been complied with.
88. Subsection 2 sexies of section 41 bis provides that an appeal against the decision of a court responsible for the execution of sentences may be lodged with the Court of Cassation, solely on the grounds of violation of the law (violazione di legge).
89. The scope of appeals before the Court of Cassation against the decisions of courts responsible for the execution of sentences on renewal orders of the section 41 bis special prison regime was delimited on many occasions by the Court of Cassation. According to that court, the scope of such an appeal does not render an impugned decision amenable to challenges based on defective reasoning (vizio di motivazione), unless that reasoning is entirely absent or flawed to the point that it is merely apparent and non-existent, that is, lacking the minimum requirements of coherence, completeness, and logic (see, among other authorities, Trombetta, Criminal Section I, no. 2984 of 22 January 2014). In a recent ruling (Oppedisano, Criminal Section I, no. 11620 of 19 February 2016), the Court of Cassation recapitulated the following principles on the scope of its review:
?It must be noted at the outset that the appeal at issue is based on section 41 bis subsection 2 sexies of Law no. 354 of 1975 and subsequent amendments. In accordance with these provisions, the decision of a court responsible for the execution of sentences concerning an application against a ministerial decree renewing the application of the special prison regime is open to appeal before the Court of Cassation ?for breach of the law?. Now, in accordance with the present court?s long-standing and well-established interpretation (Cass. pen. 13.03.92, p.c. in c. Bonati), a breach of the law with respect to [a court?s] reasoning is rooted in constitutional provisions (paragraphs 6 and 7 of Article 111) and exists where there is either a total absence of reasoning, or where the reasoning at issue may be deemed to be fictitious or contradictory … the first [situation] occurs when the judicial authority employs standardised and routine expressions, while the second [situation] occurs when the judicial authority has recourse to decisive arguments that conflict with one another. What is excluded from the notion of breach of the law are all other cases where the court?s reasoning may be viewed as insufficient and not entirely precise in the manner in which it addresses the applicants? arguments.?
90. The same judgment reviewed the manner in which the Court of Cassation had applied the latter general principles to the specific context of appeals against the decisions of courts responsible for the execution of sentences under section 41 bis, subsection 2 sexies, of Law no. 354 of 1975:
?According to the interpretation of the present court (Cass., section I, 9.01.2004, n. 449; 14.11.2003 n. 5338; 9.11.2004, n. 48494), in the context of different prison regimes, the notion of breach of the law … also encompasses the absence of reasoning, which in turn encompasses all those cases in which the [relevant] reasoning lacks the minimum requirements of coherence, completeness and logic, to the extent that it becomes merely apparent or entirely unsuitable for conveying, in a comprehensible manner, the logical steps followed by the judge, or when the arguments employed in the decision are so uncoordinated and lacking the necessary logical passages that they conceal the reasons on which the decision is based.?
C. Other domestic law
91. Legislative Decree No. 146 of December 2013 established a new preventive remedy allowing a detainee to complain of any violation of his or her rights before a supervisory judge (magistrato di sorveglianza).
D. Other domestic material
92. In April 2016 the Italian Senate?s Commission for the Protection and Promotion of Human Rights (commissione straordinaria per la tutela e la promozione dei diritti umani) published a report on the section 41 bis special prison regime (Rapporto sul Regime Detentivo Speciale ? Indagine Conoscitiva sul 41 bis). Amongst a number of other recommendations, the following recommendation was made:
The Commission also recommends more accurate evidence gathering (istruttoria) by the offices involved in the renewal of the application of the special prison regime, in order to avoid the imposition of the regime with respect to persons who are mentally incapacitated (incapaci di intendere e di volere).
THE LAW
I. PRELIMINARY ISSUE
93. Following the applicant?s death on 13 July 2016, his son, Mr Angelo Provenzano, informed the Court of his wish to pursue the application in his father?s stead (see paragraph 1 above).
94. The Government requested that the application be struck out of the list of cases in accordance with Article 37 of the Convention, challenging the right of the applicant?s son to pursue the application. They contended, inter alia, that the applicant?s son could not claim to be an indirect victim, because the alleged breach of Article 3 of the Convention had not affected him personally, and the right invoked by the applicant, which was linked to his personal and intimate sphere, was non-transferable in nature. They added that the applicant?s son had limited his submissions to expressing his intention to pursue the proceedings, without explaining the grounds for his alleged legitimacy as a successor, beyond providing his birth certificate and stating his personal interest in pursuing the case.
95. At the outset, the Court reiterates the need to distinguish cases in which an applicant has died in the course of proceedings from cases where an application has been lodged with the Court by an applicant?s heirs after the death of the victim (see Ergezen v. Turkey, no. 73359/10, ? 28, 8 April 2014; Fairfield v. the United Kingdom (dec.), no. 24790/04, ECHR 2005 VI; and Bi? and Others v. Turkey, no. 55955/00, ? 20, 2 February 2006). The Court further highlights that, in the light of its well-established case-law, the issue of whether a person may be considered an indirect victim is only relevant where the direct victim dies before bringing his or her complaint before the Court (Centre for Legal Resources on behalf of Valentin C?mpeanu v. Romania [GC], no. 47848/08, ?? 97-100, ECHR 2014).
96. In cases such as the present one, where the applicant died after lodging an application, the Court has consistently accepted that the next of kin, close family member or heir may, in principle, pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin C?mpeanu v. Romania [GC], cited above, ? 97; Fartushin v. Russia, no. 38887/09, ? 33, 8 October 2015; and Va??enkovs v. Latvia, no. 30795/12, ? 27, 15 December 2016). The Court reiterates that it is not only material interests which the successor of a deceased applicant may pursue by his or her wish to maintain the application. Human rights cases before the Court generally also have a moral dimension, and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant?s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII). Thus, in cases where the direct victim has died after the lodging of an application, the decisive factor is not whether the rights at issue are transferable to heirs willing to pursue an application, but whether the persons wishing to pursue the proceedings can claim a legitimate interest in seeking that the Court decide the case on the basis of the applicant?s desire to use his individual and personal right to lodge a case before the Court (see Ergezen v. Turkey, no. 73359/10, ? 29, 8 April 2014). Nor has the Court found it decisive that the person wishing to pursue the application is not the legally recognised heir under domestic law (see Malhous v. the Czech Republic, cited above).
97. Turning to the present case, the Court observes that the person seeking to pursue the proceedings before it is the applicant?s son, and thus a close family member. The document produced by the son, namely his birth certificate, attests to the existence of the family relationship.
98. The Court further notes that the applicant?s son was appointed the applicant?s legal guardian in the light of the applicant?s legal incapacitation following his being sentenced to life imprisonment, and was also appointed and sworn in as the applicant?s limited guardian (amministratore di sostegno) in May 2014. Finally, the Court observes that he introduced the present application on the applicant?s behalf at a time when he was acting as the applicant?s legal guardian (see paragraphs 1 and 13 above).
99. In view of the above, and having regard to the circumstances of the present case, the Court is satisfied that Mr Angelo Provenzano has a legitimate interest in pursuing the application. At his request, it will therefore continue to deal with the case. For practical reasons, Mr Bernardo Provenzano will continue to be called ?the applicant?, although Mr Angelo Provenzano is now to be regarded as such.
100. The Court therefore dismisses the Government?s request to strike the application out of its list of cases.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
101. The applicant complained that his detention was incompatible with his age and health conditions. He further complained that the domestic authorities had not taken all necessary measures to safeguard his health and well-being in detention, and that the continued imposition of the section 41 bis special prison regime entailed a violation of Article 3, which reads as follows:
?No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
A. Admissibility
102. The Government made a preliminary objection of non-exhaustion of domestic remedies and asked the Court to reject the application as inadmissible under Article 35 ?? 1 and 4 of the Convention. In the light of the circumstances of the present case, the Court considers that it would be appropriate to examine the two limbs of the applicant?s complaint under Article 3 separately.
1. Complaint concerning the incompatibility of the applicant?s detention with his health
103. The Government observed in this respect that the applicant had had several remedies at his disposal, the first one being the possibility to seek the deferral of his prison sentence for health reasons before the courts responsible for the execution of sentences. While they accepted that the applicant had made use of the latter avenue of redress on four occasions and obtained unfavourable decisions by the courts responsible for the execution of sentences, they pointed out that on only two occasions had the applicant appealed against such decisions before the Court of Cassation, which in any event had dismissed his appeals. The Government also argued that the applicant had had a further avenue of redress which he had not made use of, namely the remedy introduced by Legislative Decree No. 146 of 2013, allowing an inmate to complain of any violation of his or her rights to a supervisory judge (see paragraph 91 above).
104. The applicant contended that he had only failed to appeal against one decision issued by the Bologna Court because he had been transferred to Milan in the meantime. He further stated that while he had been detained in Milan, he had pursued proceedings before the Court of Cassation. He argued that all the proceedings had ended unfavourably for him.
105. The Court reiterates that where more than one potentially effective remedy is available, the applicant is only required to use one remedy of his or her choice (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, ? 58, ECHR 2009; Nada v. Switzerland [GC], no. 10593/08, ? 142, ECHR 2012; G?thlin v. Sweden, no. 8307/11, ? 45, 16 October 2014; and O?Keeffe v. Ireland [GC], no. 35810/09, ?? 109-111, ECHR 2014 (extracts)).
106. In the present case, given that the applicant lodged several applications raising his complaints related to his health and detention before the courts responsible for the execution of sentences, the Court considers that he was not required to avail himself of an additional legal avenue in order to fulfil the requirements under Article 35 ? 1 of the Convention. Moreover, the Court observes that the applicant appealed against the decision of the Bologna Court of 27 August 2013 and the decision of the Milan Court of 3 October 2014 before the Court of Cassation. The Court is prepared to accept that this suffices for it to find that the applicant exhausted domestic remedies under Article 35 ? 1 of the Convention for the purposes of this part of the application.
2. Complaint concerning the continued imposition of the section 41 bis special prison regime
107. The Government submitted that, under section 41 bis of the Prison Administration Act, it was possible to lodge an appeal on points of law with the Court of Cassation against the decisions of a court responsible for the execution of sentences, on the grounds of ?violation of the law?. Given the existence of such a remedy, with respect to the renewal of the special prison regime in 2014, the applicant ought to have lodged an appeal against the Rome Court?s decision of 5 December 2014, but had failed to do so.
108. The applicant contested the Government?s argument in a generic manner.
109. The Court reiterates its well-established case-law to the effect that Article 35 ? 1 of the Convention provides for a distribution of the burden of proof, and that it is incumbent on the Government claiming that domestic remedies have not been exhausted to satisfy the Court that the remedy which they claim the applicant has not used was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was capable of providing redress