CASE OF MESSINA v. ITALY (No. 2)
No violation of Art. 8 on account of restrictions on visits by family;Violation of Art. 8 on account of censorship of correspondence;Violation of Art. 13;Non-pecuniary damage - finding of violation sufficient
Christos Rozakis
8. In a judgment delivered by the Marsala District Court on 21 December 1992 the applicant was sentenced to seven years' imprisonment and to payment of a fine, inter alia for drug trafficking and membership of a Mafia-type organisation. On 23 November 1993 he was extradited from Switzerland in order to serve his sentence. He was subsequently held in Como Prison. In a judgment of 6 March 1995, deposited with the registry on 30 May 1995, the Palermo Court of Appeal acquitted him of two charges and reduced his sentence to five years' imprisonment. The applicant lodged an appeal on points of law on 13 July 1995. That appeal was dismissed in a judgment of 26 January 1996. 9. On 18 January 1995 the judge at Caltanissetta District Court responsible for preliminary inquiries issued a warrant to have the applicant brought before him immediately on suspicion of the murder of an officer of the State legal service; the applicant was served with that warrant on the same day. The applicant was acquitted by the Caltanissetta Assize Court in June 1998. The proceedings are apparently still pending. 10. In further proceedings against the applicant for membership of a Mafia-type organisation and other offences linked with drug trafficking, he was acquitted of the first charge by the Trapani Assize Court in a judgment of 30 January 1999. 11. On 26 May 1995, in another set of proceedings before the Marsala District Court, the applicant was sentenced to seventeen years' imprisonment, inter alia for conspiracy to engage in international drug trafficking. In a judgment of 16 April 1997 the Palermo Court of Appeal acquitted the applicant of one charge and reduced the sentence for the other charges to ten years' imprisonment. An appeal on points of law by the applicant was dismissed in a judgment of 4 December 1998, deposited with the registry on 25 February 1999. 12. The applicant is serving a fourteen-year prison term to which he was sentenced by the Palermo Court of Appeal for false imprisonment, among other offences. 13. By a decree of 26 November 1993 the Minister of Justice ordered that the applicant should be subject to the special prison regime for one year. This decree was grounded on public order and security considerations given the dangerousness of the Mafia and of the applicant in so far as he was presumed, according to police reports, to have maintained links with Mafia circles. Moreover, this decree, in derogation from the Prison Administration Act, imposed the following restrictions: – no access to a telephone; – no conversation or correspondence with other prisoners; – no meetings with third parties; – limits on visits by family members, with a maximum of one visit for one hour per month; – no sums of money above a fixed amount to be received or sent out; – only parcels containing clothing to be sent in from outside prison; – no organisation of cultural, recreational or sports activities; – no right to vote in elections for prisoners' representatives or to be elected as a representative; – no handicrafts; – no food requiring cooking to be purchased; – not more than two hours per day to be spent outdoors. 14. By the terms of Article 2 of this decree, censorship of correspondence by the governor of a prison required previous authorisation by the court having jurisdiction. 15. On 26 November 1993 the governor of Como Prison transmitted to the Trapani Assize Court an application by the applicant for permission for additional visits and telephone calls, if possible on request. The President of the Assize Court allowed this application on 20 December 1993. 16. On 29 November 1993 the governor of Como Prison asked the Trapani Assize Court to authorise censorship of the correspondence of the applicant, who on 28 November 1993 had been served with the Minister of Justice's decree placing him under the special regime. On 30 November 1993 the President of the Trapani Assize Court gave his authorisation. 17. On an unspecified date the applicant challenged the decree of 26 November 1993 before the Ancona court responsible for the execution of sentences. He objected to being placed under the special regime and complained of its vexatious nature. The court rejected the appeal on an unspecified date in 1995. 18. The applicant was subsequently transferred several times to prisons in Trapani, Ascoli Piceno, Termini Imerese, Pianosa, Palermo and Porto Azzurro, often for the sole purpose of allowing him to participate in the hearings of the appeal proceedings taking place in Palermo. 19. On 7 December 1993 the governor of Termini Imerese Prison made an application to the Trapani Assize Court and to the Marsala District Court requesting authorisation to allow the applicant visits by members of his family (the applicant is married and has three daughters). The President of the Assize Court granted his authorisation on 9 December 1993. 20. On an unspecified date an application for censorship of the applicant's correspondence to be authorised was made by the prison to the Macerata court responsible for the execution of sentences. On 22 August 1994 the Macerata court responsible for the execution of sentences allowed that application for a period of six months. 21. On 24 August 1994 the applicant appealed against that decision to the Ancona and Trapani courts responsible for the execution of sentences. The result of those appeals is unknown. 22. In a decree of 29 November 1994 the Minister of Justice ordered that the applicant be placed under the special prison regime again, from 29 November 1994 to 28 May 1995, on the ground that the conditions justifying that measure continued to exist. The restrictions were the same as those imposed by the previous decree. 23. On 6 December 1994 the applicant appealed against this decree to the Ancona court responsible for the execution of sentences. He complained of being placed under the special regime and, in particular, of the restriction on visits by family members. 24. In a decision of 27 March 1995 the Ancona court responsible for the execution of sentences rejected the appeal in part, holding that imposing the special prison regime on the applicant was justified and that the decree complained of was based on adequate grounds. As for the restrictions imposed by that decree, the court found that the list of minimal conditions of detention laid down in section 14 quater of the Prison Administration Act should apply in relation to visits by family members. Consequently, the court struck down the ban on receiving more than one family visit per month and ruled that the applicant would in future be entitled to four. 25. On 30 March 1995 the applicant appealed on points of law against that decision. He argued that the conditions of detention to which he was subjected were inhuman and that the special prison regime had been extended by decrees based on inadequate grounds. The public prosecutor also appealed against the decision. In a judgment of 10 October 1995, deposited with the registry on 31 October 1995, the appeals were declared inadmissible on the ground that the parties no longer had standing, since the decree of 29 November 1994 had expired on 28 May 1995, before the Court of Cassation delivered its judgment. 26. In a decree of 27 May 1995 the Minister of Justice ordered application of the special prison regime to be extended until 26 November 1995, on the ground that the conditions justifying the measure continued to exist. 27. On 5 June 1995 the applicant lodged an appeal against the above decree with the Ministry of Justice, to be transmitted, if necessary, to the Ancona court responsible for the execution of sentences. He complained, inter alia, of the lack of real grounds justifying extension of the special regime and argued that the restrictions placed on visits and time outdoors and the prohibition of the purchase of food requiring cooking were not only contrary to section 14 quater of the Prison Administration Act and incompatible with the aim of rehabilitation, but also vexatious. He asked for application of the special regime to be countermanded and for permission to receive visits from his wife and his daughters without being separated from them by glass partitions and to make telephone calls. The applicant also emphasised that he was being held far from his family and the place where the trial was taking place. The outcome of that appeal is not known. 28. In a decree of 24 November 1995 the Minister of Justice ordered, on similar grounds, that application of the special prison regime be extended to 23 May 1996. On 27 November 1995 the applicant challenged the above order in the Florence court responsible for the execution of sentences. 29. In a decree of 21 May 1996 application of the special regime was once again extended by six months. The grounds for that decree and the restrictions imposed were the same as those of the previous decrees. On 30 May 1996 the applicant challenged the above decree in the Florence court responsible for the execution of sentences. 30. On 2 October 1996 the applicant applied to the Florence court responsible for the execution of sentences for a date to be fixed for hearing his appeals of 27 November 1995 and 30 May 1996. 31. In a decree of 19 November 1996 the Minister of Justice once again extended application of the special regime by six months; that decision was based on grounds similar to those of the previous decrees. On 21 November 1996 the applicant challenged the decree in the Florence court responsible for the execution of sentences. The court dismissed the applicant's appeal in a decision of 11 February 1997. Basing its decision on the Constitutional Court's judgment no. 351/1996, the court held that extension of the application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. However, it struck down some of the restrictions previously placed on the applicant, namely suspension of the rehabilitation programme; restrictions on visits by family members; the prohibition of parcels containing anything other than clothing; the ban on the purchase of food requiring cooking and the restriction of time spent outdoors to two hours per day. The applicant appealed on points of law against the above decision. The hearing in private was set down for 30 September 1997. On that date the appeal was declared inadmissible as being devoid of purpose, the decree's period of validity having in the meantime expired. 32. On 4 February 1997 the Minister of Justice ordered that the applicant be permitted to replace the monthly visit by his family with a telephone call, to receive one additional parcel per month and two special parcels per year, and to use the kitchens. 33. In a decree of 19 May 1997 the Minister of Justice once again extended application of the special prison regime by six months. That decision was based on grounds similar to those of the previous ones. The applicant challenged the above decree in the Florence court responsible for the execution of sentences, which dismissed his appeal in a decision of 7 August 1997, ruling that extension of application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. However, it struck down some restrictions previously imposed, namely suspension of the rehabilitation programme, restrictions on visits by family members, the prohibition of parcels containing anything other than clothing, the ban on the purchase of food requiring cooking, and the restriction of outdoor exercise to two hours per day. The applicant appealed on points of law against the above decision but in a judgment of 19 January 1998 his appeal was ruled inadmissible as being devoid of purpose, since the decree's period of validity had expired in the interim. 34. On 29 August 1997 the applicant applied to the Macerata judge responsible for the execution of sentences, complaining of the regime under which he had been placed. The judge dismissed that appeal in a decision of 15 October 1997, deposited with the registry on the following day. He noted that the restrictions the applicant had complained of had been imposed by the prison authorities by means of departmental orders which, without exception, implemented the Minister of Justice's decrees and were therefore lawful; he further emphasised that defendants – unlike convicted persons – were not required to participate in the rehabilitation programme on account of the principles of the presumption of innocence and the freedom to defend oneself. 35. In a decree of 21 November 1997 the Minister of Justice extended the special regime for six months and ordered the governor of the prison to apply to the competent court for authorisation to censor all the applicant's correspondence. On 23 November 1997 the governor of Trapani Prison applied for authorisation to the Livorno judge responsible for the execution of sentences, who informed the judge who had jurisdiction, namely the Trapani judge responsible for the execution of sentences. The latter ordered censorship of the applicant's correspondence for six months, starting on 21 November 1997. 36. On 28 November 1997 the applicant appealed against the decree of 21 November 1997 to the Ancona court responsible for the execution of sentences, which transmitted his appeal on 1 December 1997 to the Palermo District Court. The Palermo District Court returned it to the Ancona court on 2 May 1998 as jurisdiction over the matter had changed in the interim (see paragraph 46 below in fine). By a decision of 7 May 1998, deposited with the registry on 11 May 1998, the Ancona court responsible for the execution of sentences dismissed the appeal. 37. In a decision of 4 February 1998 the Minister of Justice revoked the restriction on outdoor exercise. 38. In a decision of 21 May 1998 the Minister of Justice ordered that the applicant should cease to be subject to the special regime. 39. A number of letters and the observations sent by the applicant to the Secretariat of the European Commission of Human Rights through his wife arrived with censors' stamps from the prisons of Pianosa, Palermo, Porto Azzurro, Ascoli Piceno and Trapani. Censorship continued until June 1998. 40. Letters sent by the applicant to his wife, in particular those of 19 and 21 October 1997 were censored; the applicant was informed of this on 21 and 28 October 1997. 41. The appeals by the applicant to the courts responsible for the execution of sentences were censored by the prison authorities. 42. 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, gives the Minister of Justice the power to suspend application of the ordinary prison regime as laid down in Law no. 354 of 1975 in whole or in part, by means of a decision stating grounds which is subject to judicial review, for reasons of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements. 43. Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in section 4 bis of the Act, which includes offences relating to Mafia activities. 44. Under the terms of section 6 of Law no. 11 of 7 January 1998, application of the section 41 bis special regime was extended until 31 December 2000. 45. The measures which may result from application of section 41 bis are the following: – a ban on participating in the preparation of food and organising prisoners' recreational activities; – a ban on visits by persons other than family members, a cohabitant or a lawyer; – a maximum of two visits and one telephone call per month; – censorship of all the prisoner's correspondence except for that with his lawyer; – not more than two hours per day to be spent outdoors; – no extra visits allowed for good conduct; – restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison's internal rules; – no more than two parcels per month; – no sums of money to be received from outside prison or sent out; – no handicrafts involving the use of dangerous tools. 46. Section 14 ter of the Prison Administration Act provides for an appeal (reclamo) to the court responsible for the execution of sentences (tribunale di sorveglianza) against a decree of the Minister of Justice imposing the special regime within ten days from the date on which the person concerned receives a copy of the decree. Such an appeal does not have suspensive effect. The court must take a decision within ten days. Section 4 of Law no. 11 of 7 January 1998 requires an appeal to be lodged with the court responsible for the execution of sentences which has geographical jurisdiction over the prison where an appellant is serving his sentence. An appeal to the Court of Cassation lies against the decision of the court responsible for the execution of sentences. 47. The Italian Constitutional Court, having been asked to rule on whether such a system complied with the principle of non-encroachment on matters reserved for the legislature, held (in judgments nos. 349 and 410 of 1993) that section 41 bis was compatible with the Constitution. It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister, an appeal lay against a ministerial decree to the courts responsible for the execution of sentences, which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned, which in any event ought never to entail inhuman treatment. 48. Nevertheless, the Constitutional Court held, on the basis of Article 15 of the Constitution, which provides, inter alia, that restrictions on correspondence may be imposed only by means of a court decision whose grounds are stated, that the power to order censorship of a prisoner's correspondence belonged to the courts alone. As a result, section 41 bis could not be interpreted to include a power on the Minister of Justice's part to take measures relating to prisoners' correspondence. 49. However, the Court of Cassation has held that the courts responsible for the execution of sentences should confine themselves to reviewing the lawfulness of a ministerial decree as such, and could not usurp the role of the administrative authorities in the choice of the actual measures to be taken. On the other hand, the courts responsible for the execution of sentences have in practice gone so far as to review whether each specific measure is in accordance with the aim pursued by the administrative authorities. The result of this had been that decisions of the courts responsible for the execution of sentences had often remained unexecuted, and this had given rise to conflicts between those courts and the administrative authorities. 50. In judgment no. 351 of 14-18 October 1996 the Constitutional Court established the principle that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementation of a measure, regard being had both to the aim pursued and to the fundamental rights guaranteed by the Constitution. The Court of Cassation, moreover, changed the line of its case-law on the question even before the Constitutional Court's judgment, by allowing the court responsible for the execution of sentences to strike down, in whole or in part, the application of unlawful measures (see judgments nos. 6873 of 12 February 1996 and 684 of 1 March 1996). 51. On 7 February 1997, applying the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to the governors of prisons regarding organisation of the wings where prisoners subject to the special regime are held. This circular contained, inter alia, the following instructions: prisoners would from then on be allowed to use the kitchens; they would have access to rooms equipped for sporting activities and to a library; visits by family members could be replaced by telephone calls; the use of glass partitions would continue but, as a result, the searching of visitors need not be so strict. 52. In judgment no. 376 of 26 November-5 December 1997 the Constitutional Court reaffirmed that section 41 bis was compatible with the Constitution, while changing and clarifying the interpretation to be given to it. It held, inter alia, that decrees imposing the special regime had to be based on genuine public-order and security grounds, and that decisions to extend application of the regime also had to be based on sufficient grounds which were independent of those which had justified the imposition of the rules in the first place. The Constitutional Court held that the special regime should not amount to inhuman treatment or hinder the prisoner's rehabilitation, which would be contrary to Article 27 of the Constitution. It nevertheless stated that at no time did section 13 of the Prison Administration Act cease to apply, under which the treatment to which a prisoner is subjected must respect his personality, and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner's personality and with his cooperation. 53. Section 27 of the Act also remained applicable. This provided that cultural, sporting and recreational activities should be promoted and organised in prisons – as should any other activity allowing the expression of the prisoners' personalities within the rehabilitation programme. These activities had to be organised, of course, in such a way as to prevent any contact between the person concerned and the Mafia or criminal environment from which he came. Emphasising that the special regime had to respect the aim of returning the prisoner to normal society, the Constitutional Court held that the principle of the presumption of innocence was not infringed by the fact that the special regime could be imposed on suspects before a final conviction. In fact, application of the special regime did not stand in the way of early release (see the Constitutional Court's judgment no. 349 of 1993), which presupposed the prisoner's previous participation in the cultural, sporting and recreational activities provided for in section 27 of the Prison Administration Act. 54. On 6 February 1998, in accordance with the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to prison governors concerning the organisation of the wings where prisoners subject to the special regime are held. This circular included, inter alia, the following instructions: – outdoor exercise time was to be increased to four hours per day, but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be associated with the Mafia; – the outdoor exercise yards in Secondigliano and Pisa Prisons were to be equipped for physical exercise and sport; – one or more rooms for social, cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons; – on the question of work, the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons, with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be associated with the Mafia; – visits by children under 16 years of age could take place without a glass partition; if the visit took place in the presence of other persons, partition-free access was to be authorised for the children only and was not to exceed one-sixth of the total duration of the visit in length; – prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking, because they were not to be allowed to use the kitchens except for the purpose of making hot drinks or heating up pre-cooked food. 55. Section 18 of Law no. 354 of 26 July 1975, as amended by section 2 of Law no. 1 of 12 January 1977, provides that the authority empowered to order the censorship of prisoners' correspondence is the court before which proceedings are pending (whether the investigating court or the trial court) until the delivery of the first-instance judgment, and the court responsible for the execution of sentences during any subsequent proceedings. Section 18 also provides that the court with jurisdiction may order the monitoring of a prisoner's correspondence in a decision stating reasons, but it does not set out the cases in which such a decision may be made. 56. In practice, the censorship concerned means interception of all the correspondence of the prisoner subject to the order, which is then read by the judicial authority which ordered it, by the governor of the prison or by prison staff designated by the governor. The letters are then marked with the censor's stamp, which serves as proof that they have been read (see also Article 36 of Presidential Decree no. 431 of 29 April 1976, implementing the above-mentioned Law no. 354). This supervisory measure cannot lead to the erasing of words or sentences, but the judicial authority may order that one or more letters should not be delivered. In such cases, the prisoner must be immediately informed of this. Such an order may also be made provisionally by the governor of the prison, who must, however, inform the judicial authority. 57. Lastly, with regard to the remedies available against censorship of correspondence, the Court of Cassation has stated in several decisions that it constitutes an administrative act. Moreover, the Court of Cassation has affirmed in its settled case-law that Italian law does not provide remedies in this respect; nor can censorship form the subject of an appeal on points of law since it does not concern the prisoner's personal liberty (Court of Cassation judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992). 58. Section 35 of the Prison Administration Act provides that prisoners may make sealed applications or complaints to the following authorities : – the governor of the prison, prison inspectors, the Director-General of Prisons and the Minister of Justice; – the judge responsible for the execution of sentences; – the judicial and health authorities which inspect the prison; – the President of the Regional Council; and – the President of the Republic.