legal framework — Constitution, Basaglia law, Constitutional Court, Court of Cassation, ECHR

The protection of psychiatric patients: what the law says

None of the provisions that follow bears directly on the conduct of the two officers on 19 July. They do, however, define the framework within which, in Italy, a person in psychiatric crisis must be treated by anyone who finds themselves facing them. It is the yardstick by which the whole case must be measured, and for that reason the archive sets it out in full. Full references are on page 4.

╔══ THE CONSTITUTION ══╗

ARTICLE 32. The Republic protects health as a fundamental right of the individual and an interest of the community. “No one may be obliged to undergo a particular health treatment except under the provisions of the law. The law may not under any circumstances violate the limits imposed by respect for the human person.” From this flows the right to self-determination in treatment, and therefore also the right to refuse care: which is exactly what Fakir exercised on 12 June at Castello d'Argile, refusing to be taken to hospital.

ARTICLE 13. Personal liberty is inviolable. The fourth paragraph is the most pertinent here: “Any act of physical or moral violence against persons subjected in any way to restrictions of liberty shall be punished.” It applies to anyone deprived of liberty, not only to prisoners: therefore also to a person handcuffed or bound with cable ties in a courtyard.

╔══ THE BASAGLIA LAW ══╗

Law no. 180 of 13 May 1978, later incorporated into Articles 33, 34 and 35 of Law 833/1978 establishing the National Health Service.

Italy was the first country in the world to legislate for the closure of its asylums. The principle it introduces is not organisational but concerns the status of the person: the psychiatric patient ceases to be regarded as someone “dangerous to himself and others” to be kept in custody, and becomes a holder of rights, whose CONSENT TO TREATMENT MUST BE SOUGHT IN EVERY SITUATION. Compulsory treatment becomes the exception, not the rule, and only within a procedure hedged with safeguards.

THE PROCEDURE. Reasoned proposal by a doctor, confirmed by a second doctor from a public facility. Decree of the mayor. Notification to the guardianship judge within forty-eight hours of admission. The guardianship judge, within the following forty-eight hours, having gathered information and ordered any necessary checks, confirms or declines to confirm by reasoned decision. Duration seven days, renewable. Compulsory treatment takes place “with respect for the dignity of the person and for civil and political rights”, and those subjected to it retain the right to communicate with whomever they see fit.

It is therefore not something an emergency operations room can order on its own: it is the channel through which a request must be routed to those who have the power to order it.

╔══ CONSTITUTIONAL COURT, JUDGMENT no. 76 OF 30 MAY 2025 ══╗

A year before Fakir's death the Constitutional Court declared Article 35 of Law 833/1978 unconstitutional in so far as it failed to guarantee that a person subjected to compulsory treatment be informed and heard. The new safeguards: the mayor's decision must be communicated to the person concerned or to their legal representative before notification, and the guardianship judge must hear the patient before confirming it.

This shows the direction in which the legal system was moving: towards more safeguards for the person in crisis, not fewer.

╔══ THE COURT OF CASSATION: RESTRAINT IS NOT A THERAPEUTIC ACT ══╗

Court of Cassation, criminal division V, judgment no. 50497 of 20 June 2018, known as the Mastrogiovanni judgment.

Franco Mastrogiovanni, a 58-year-old primary school teacher, died tied hand and foot to a bed on 31 July 2009 in the psychiatric ward of the Vallo della Lucania hospital, where he had been admitted under a compulsory treatment order less than ninety hours earlier. The restraint was recorded by the ward's cameras.

The principles laid down by the Court:

— Mechanical restraint IS NEVER A THERAPEUTIC ACT. It is an instrument restricting personal liberty which has no curative purpose and produces no improvement in the state of health.
— It is lawful only where there is a concrete situation of evident and present danger of serious harm to the patient, to be assessed by strict criteria and case by case.
— Outside that scenario, restraint amounts to the offence of FALSE IMPRISONMENT.

The European Court of Human Rights has moreover condemned Italy for a violation of Article 3 of the Convention — the prohibition of inhuman and degrading treatment — in a case of mechanical restraint in a healthcare setting. It is a separate condemnation from the one in the Magherini case set out below: it concerns a different Article of the Convention and a hospital, not a police, context.

A necessary caveat: this case law concerns medical restraint in a hospital setting, not restraint applied by police forces in a public street, which is governed by other rules. It is set out here because it defines the general principle by which the Italian legal system regards the bound body of a person in psychiatric crisis.

╔══ THE PRECEDENT THAT KEEPS RETURNING, AND THE CONDEMNATION SIX MONTHS EARLIER ══╗

Riccardo Magherini, 39, died in Florence on 3 March 2014 after being held face down on the ground by three Carabinieri. It is the case to which Abderrahim Fakir's death is most often compared: both concern the same question, namely what happens to a person in an altered state held face down on the asphalt.

On 15 January 2026 that case reached the European Court of Human Rights, which in its judgment Magherini and Others v. Italy (application no. 32707/19) condemned the Italian State for A DOUBLE VIOLATION OF ARTICLE 2 of the Convention, the right to life.

ON THE SUBSTANTIVE LIMB. The initial restraint may have been necessary, but it was not shown to be absolutely necessary to keep Riccardo Magherini handcuffed in a prone position for about twenty minutes, even after he had stopped moving and speaking and had become apparently unresponsive. The Court further found that the guidelines then in force provided for handcuffing on the ground in a prone position WITH NO REFERENCE WHATEVER to the risks of prolonged maintenance in that position, and that officers had been given no specific training on those risks.

ON THE PROCEDURAL LIMB. The investigation failed to meet the requirement of independence, because the statements of key eyewitnesses were taken, in the immediate aftermath, by the very officers involved in the operation.

FOUR MONTHS AFTER THAT JUDGMENT the Department of Public Security issued the guidelines of 11 May 2026. The chronological sequence is a fact; the causal link is plausible but appears in no source, and is flagged here as a hypothesis.

TWO POINTS OF THAT JUDGMENT BEAR ON THIS CASE. First: the assessment concerns not only the initial lawfulness of the use of force, but also its DURATION, its modulation, MEDICAL MONITORING and the officers' ability to recognise clinical deterioration in time. Second: the request by the Fakir family's lawyer that the investigation not be carried out by the police rests precisely on the procedural limb of this condemnation.

╔══ THE SHORTFALL IN SERVICES ══╗

Context data, relating to the national system and not to the individual case.

— About 3 per cent of the National Health Fund is allocated to mental health; some more recent estimates put it between 2.6 and 2.7 per cent. France invests about 10 per cent, Germany about 12.
— More than a million people are in treatment with community psychiatric services for anxiety, depression, behavioural or eating disorders: the highest number ever recorded.
— The Italian Society of Psychiatry has for years been warning of a structural shortage of staff. A recent study estimates that an increase of at least 1.9 billion euro over three years and a 47 per cent increase in dedicated staff would be needed.
— Regional inequalities are marked. Emilia-Romagna is among the regions with the highest coverage, about 235 patients treated per ten thousand inhabitants, above the national average; Marche, Abruzzo, Molise and Calabria are appreciably below it.

This last figure must be read honestly, because it cuts both ways: the region in which Fakir died is among those that invest most in mental health. Which shifts the question from how much to how — to continuity of care, to emergency protocols, to the joining-up of the ambulance service, the police and community services.