Credits to
Giuseppe Romeo

ECHR, Joined Chambers of the Court of Cassation and minimum living space in detention: no consolidated case law

Issue 6/2021

Abstract. With ruling no. 6551 of 19 February 2021, the Joined Chambers of the Court of Cassation have identified the way to calculate the minimum living space of three square meters per inmate in collective cells, in order not to incur a violation of art. 3 ECHR. The Supreme Court established that this calculation has to be made without considering the non moving furnitures, such as the bunk bed. At the same time, they specified that the violation of this minimum standard does not result in an automatic infringement of art. 3 of the ECHR but only in a strong presumption, which can be overcome in the presence of compensatory factors that can alleviate inhuman or degrading prison conditions. To this end, as requested by art. 35-ter o.p., the Court recalls the principles developed in the case law of ECtHR, and precisely in Mursic v. Croatia case. However, this case law doesn’t seem sufficiently consolidated in order to be binding. It would have been, perhaps, more appropriate to recall the principles developed in the Sulejmanovic and Torreggiani cases, as they are more suited to the peculiarities of the Italian prison system, and to conclude for an automatic violation of art. 3 whenever the space granted to the prisoner in the collective cell is less than three square meters.


SUMMARY: 1. Introduction. — 2. A dutiful premise: art. 3 of the ECHR and objective conditions of detention. — 3. The case. — 4. The related european case-law. — 5. The solution of the Joined Chambers. — 6. A critical consideration: Mursic v. Croatia is not a consolidated case law. — 6.1. The challenges of the consolidation criterion — 7. A positive consideration: it is possible to find within the national legal system a way to indirectly protect the ECHR.


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