CASE OF CALOGERO DIANA v. ITALY
Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
C. Russo;R. Pekkanen
7. On 11 September 1970 Mr Diana was arrested on suspicion of having taken part in the activities of the terrorist organisation known as the "Red Brigades" and immediately taken into custody. He was convicted on eleven occasions between February 1971 and January 1987, the heaviest sentences he received being those imposed in the Novara Assize Court on 5 February 1981 (twenty-seven years' imprisonment and a fine of 200,000 Italian lire) and by the Milan Assize Court of Appeal on 28 November 1985 (life imprisonment). Since 11 September 1970 the applicant, pursuant to an aggregation of sentences ordered on 17 June 1992 by the Principal Public Prosecutor of Cagliari, has been serving the sentence of life imprisonment and has at the same time been, among other things, permanently disqualified from holding public office, stripped of his civic rights for the duration of his prison sentence and removed from parental control. 8. On 28 March 1987 the judge responsible for the execution of sentences (magistrato di sorveglianza) in Reggio di Calabria decided that Mr Diana's correspondence - the applicant then being in custody in Palmi Prison - should be subject to censorship under section 18 of Law no. 354 of 26 July 1975 (see paragraph 18 below). The grounds given for the decision were: the nature of the applicant's offences; the fact that he belonged to a special category of prisoner whose attitude was one of total opposition to the institutions of the State; his conduct; and his rejection of prison and refusal of any cooperation with prison staff. 9. On an unspecified date the applicant was transferred to Ascoli Piceno Prison. 10. On 17 December 1988 the judge responsible for the execution of sentences at Macerata ordered that all the applicant's correspondence, both incoming and outgoing, should be subject to censorship for six months from 22 December 1988, the date on which the prisoner was notified of the decision. He considered that the reasons which had prompted his counterpart in Reggio di Calabria to take such a measure (see paragraph 8 above) remained valid and that there was a continuing danger that the applicant would use his correspondence to commit offences or to prejudice public order or safety. At that time Mr Diana already had two convictions, and two other sets of criminal proceedings were pending against him. The first of these, in the Cagliari Assize Court of Appeal, related to charges of kidnapping, manufacture, possessing and carrying explosives, aggravated destruction of property and resisting arrest; they ended in a judgment of 17 March 1989, which became final on 5 March 1990 and in which the applicant was convicted and sentenced to eight years and six months' imprisonment and permanently disqualified from holding public office. The second set of proceedings, which were pending before the Novara Magistrate's Court (pretore), originated in a prosecution brought following an escape by the applicant on 23 September 1986; Mr Diana had been recaptured on 5 December 1986. 11. It is not contested that the following letters were inspected: (a) a letter of 22 January 1989 from the applicant to his lawyer; (b) a registered letter of 27 January 1989 to the applicant from his lawyer; (c) a letter of 16 February 1989 from the applicant to his lawyer; (d) a letter of 18 April 1989 from the applicant to his lawyer; (e) a registered letter of 24 May 1989 to the applicant from his lawyer, enclosing a form for lodging an application with the Commission; and (f) a letter of 30 May 1989 from the applicant to his lawyer, enclosing the Commission application form signed by the applicant on the same date, each page bearing the censor's stamp. 12. Mr Diana made several applications challenging the monitoring of his correspondence. In particular, he lodged an application (richiesta di riesame) with the Macerata judge responsible for the execution of sentences to reconsider his decision of 17 December 1988 (see paragraph 10 above). The judge refused the application on 13 January 1989. On 22 January 1989 the applicant sent a copy of the judge's decisions to his lawyer. On 27 January 1989 the lawyer sought to have the censorship of his correspondence with the applicant ended and the order of 17 December 1988 (see paragraph 10 above) rescinded. Relying on Articles 6 para. 3 (b) and 8 of the Convention (art. 6-3-b, art. 8), he argued, among other things, that the censorship was a manifest violation of the rights of the defence and could not be ordered on the basis of a similar decision taken by another judge nearly two years earlier or on the basis of considerations relating to the applicant's conduct in another prison, especially as the applicant was receiving more lenient treatment in Ascoli Piceno Prison. 13. On 17 March 1989 the judge responsible for the execution of sentences held that the measure in issue was wholly justified, having regard to the arguments already set out in his decision of 17 December 1988, to disciplinary reports on Mr Diana and to the fact that while in custody in Palmi Prison the applicant had been a member of a group of prisoners all of whom belonged to extreme-left-wing subversive movements. He nevertheless decided to adjourn the lawyer's application and submit a question concerning the interpretation of the relevant law to the Prison Service (Direzione generale degli Istituti di prevenzione e pena), relating to whether the monitoring of the applicant's correspondence with his lawyer was lawful, given that two sets of criminal proceedings against the applicant were still pending at the time. The applicant's correspondence nevertheless continued to be monitored while a reply from the relevant authority was awaited. 14. On 26 May 1989 the judge, in reply to a letter sent him by the defence lawyer on 18 May, again confirmed his decision of 17 December 1988. 15. The Prison Service replied on 1 June 1989. In its opinion, censorship of a prisoner's correspondence, provided that all the legal requirements were satisfied, covered all his correspondence, including that with his lawyer, and could not be regarded as infringing the rights of the defence, which were guaranteed by Article 24 of the Constitution. The confidentiality of communications between a prisoner charged with a criminal offence and his lawyer was preserved through the possibility of communication during private conversations inside the prison. On 10 June 1989 the judge responsible for the execution of sentences refused the lawyer's application of 27 January 1989. 16. The measure in issue ended automatically on 22 June 1989, on the expiry of the period specified in the decision (see paragraph 10 above). 17. On 26 June 1992 the applicant was transferred to the special prison at Trani (Bari). Since February 1994 he has enjoyed a semi-custodial regime. 18. Section 18 of Law no. 354 of 26 July 1975 ("Law no. 354"), as amended by section 2 of Law no. 1 of 12 January 1977, provides that power in the matter of censorship of prisoners' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision, however, does not specify the cases in which such a decision may be taken. 19. The censorship of which the applicant complains consists, in particular, in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him, and in the stamping of letters for the purpose of showing that they have been inspected. Censorship cannot extend to deleting words or sentences, but the judicial authority can order that one or more letters shall not be handed over; in that case, the prisoner must immediately be informed of the fact. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judicial authority of his action. 20. Article 103 of the New Code of Criminal Procedure forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer, provided that the correspondence is recognisable as such and unless the judicial authority has well-founded reasons to believe that the correspondence constitutes the substance of the offence. Similarly, by Article 35 of the transitional provisions of the same Code, the rules on the censorship of a prisoner's correspondence that are laid down in Law no. 354 and Presidential Decree no. 431 of 29 April 1976 do not apply to correspondence between the prisoner and his lawyer. It follows, among other things, that the only authority that may order censorship of that correspondence, and then solely in the case mentioned above, is the judge or court dealing with the case. 21. The Court of Cassation has held on several occasions that the monitoring of a prisoner's correspondence is an administrative act and has also stated that Italian law does not provide any remedies in respect of it; in particular, censorship cannot be the subject of an appeal on points of law, since it does not affect the prisoner's personal freedom (Court of Cassation, judgments nos. 3141 and 4687 of 14 February 1990 and 4 February 1992 respectively).