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ENEA v. ITALY - 74912/01 [2009] ECHR 1293 (17 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1293.html
Cite as:
[2009] ECHR 1293,
(2010) 51 EHRR 3
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GRAND
CHAMBER
CASE OF ENEA v. ITALY
(Application
no. 74912/01)
JUDGMENT
STRASBOURG
17
September 2009
This
judgment is final but may be subject to editorial revision.
In the case of Enea v. Italy,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul Costa, President,
Nicolas Bratza,
Françoise Tulkens,
Josep Casadevall,
Nina Vajić,
Anatoly Kovler,
Vladimiro Zagrebelsky,
Alvina Gyulumyan,
Renate Jaeger,
Sverre Erik Jebens,
Danutė Jočienė,
Ján Šikuta,
Dragoljub Popović,
Giorgio Malinverni,
Ledi Bianku,
Ann Power,
Işıl Karakaş, judges,
and
Vincent Berger,
Jurisconsult,
Having
deliberated in private on 5 November 2008 and 24 June 2009,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 74912/01) 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 an Italian national, Mr Salvatore Enea (“the
applicant”), on 31 August 2000.
The
applicant alleged, in particular, that his state of health was
incompatible with the special prison regime to which he had been
subjected, that the regime in question had breached his right to
respect for his family life and his correspondence and that his right
to a court in order to challenge the extension of that regime had not
been secured to him.
The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). On 23 September 2004 a Chamber
of that Section composed of the following judges: Christos Rozakis,
President, Françoise Tulkens, Nina Vajić, Anatoly Kovler,
Vladimiro Zagrebelsky, Elisabeth Steiner, Khanlar Hajiyev, judges,
and also of Søren Nielsen, Section Registrar, declared the
application partly inadmissible and decided to give notice to the
Government of the complaints under Articles 3, 8, 6 § 1 and 9 of
the Convention. On 3 May 2005 a Chamber of the Third Section, to
which the application had been allocated, gave notice to the
Government of the first three complaints raised by the applicant in
relation to his assignment to a special unit of the prison. By virtue
of Article 29 § 3 of the Convention, it subsequently decided
that the admissibility and merits of the case should be considered
together. On 1 July 2008 a Chamber of the Second Section, composed of
the following judges: Françoise Tulkens, President, Antonella
Mularoni, Vladimiro Zagrebelsky, Danutė Jočienė,
Dragoljub Popović, András Sajó, Işil Karakaş,
judges, and also of Sally Dollé, Section Registrar,
relinquished jurisdiction in favour of the Grand Chamber, neither of
the parties having objected to relinquishment (Article 30 of the
Convention and Rule 72).
The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court. At the final deliberations, Ján
Šikuta, substitute judge, replaced Christos Rozakis, who was
unable to take part in the further consideration of the case (Rule 24
§ 3).
The
applicant and the Government each filed a memorial on the merits. In
addition, third-party comments were received from the Slovakian
Government, which had been granted leave by the President to
intervene in the written procedure (Article 36 § 2 of the
Convention and Rule 44 § 2).
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 5 November 2008 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr F. Crisafulli,
Co-Agent,
Mr N. Lettieri, Deputy co-Agent;
(b) for the applicant
Mr M. Esposito,
lawyer,
Mr M. Vetrano, lawyer, Counsel,
Mrs F.
Scardascione, lawyer, Adviser.
The
Court heard addresses by them. Mr Lettieri and Mr Esposito also
replied to questions from the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1938 and lives in Italy.
A. The judicial decisions concerning the applicant
The
applicant was placed in detention on 23 December 1993.
Several
sets of criminal proceedings were brought against him, as a result of
which he was sentenced to terms of imprisonment for, among other
offences, membership of a Mafia-type criminal organisation, drug
trafficking and illegal possession of firearms. On 27 December
2001 the public prosecutor at the Milan Court of Appeal ordered that
the applicant's sentences be aggregated and fixed the overall term at
thirty years.
B. The prison regime provided for in section 41 bis
of the Prison Administration Act
The
applicant was detained in several Italian prisons (including Palermo,
Catania, Pisa and Naples).
On
10 August 1994, in view of the danger posed by the applicant, the
Minister of Justice issued a decree ordering that he be subject for
one year to the special prison regime provided for in the second
paragraph of section 41 bis of the Prison Administration Act
(“Law no. 354 of 1975”). This provision, which was
amended by Law no. 279 of 23 December 2002 (“Law no. 279 of
2002”), allows application of the ordinary prison regime to be
suspended in whole or in part for reasons of public order and safety.
The
1994 decree imposed the following restrictions:
– restrictions
on visits by family members (a maximum of a single one hour
visit per month);
– no
meetings with non-family members;
– 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, but permission to
receive two parcels per year containing clothing and linen;
– ban
on organising cultural, recreational or sports activities;
– no
right to vote in elections for prisoners' representatives or to be
elected as a representative;
– no
craft activities;
– no
food requiring cooking to be purchased;
– no
more than two hours' outdoor exercise per day.
In
addition, all the applicant's correspondence was to be monitored,
subject to prior authorisation by the judicial authority.
The
application of the special regime was subsequently extended on
nineteen occasions for successive periods of one year or six months.
Each
decree covered a limited period, as follows:
10
August 1994 – 9 August 1995 (decree no. 1)
5
August 1995 – 5 February 1996 (decree no. 2)
2
February 1996 – 2 August 1996 (decree no. 3)
31
July 1996 – 31 January 1997 (decree no. 4)
4
February 1997 – 4 August 1997 (decree no. 5)
31
July 1997 – 31 January 1998 (decree no. 6)
4
February 1998 – 4 August 1998 (decree no. 7)
30
July 1998 – 30 January 1999 (decree no. 8)
27
January 1999 – 27 July 1999 (decree no. 9)
22
July 1999 – 31 December 1999 (decree no. 10)
23
December 1999 – 23 June 2000 (decree no. 11)
22
June 2000 – 31 December 2000 (decree no. 12)
21
December 2000 – 21 June 2001 (decree no. 13)
18
June 2001 – 18 December 2001 (decree no. 14)
13
December 2001 – 13 June 2002 (decree no. 15)
10
June 2002 – 31 December 2002 (decree no. 16)
28
December 2002 – 22 December 2003 (decree no. 17)
23
December 2003 – 23 December 2004 (decree no. 18)
17
December 2004 – 17 December 2005 (decree no. 19).
The
applicant appealed against most of these decrees to the Naples court
responsible for the execution of sentences. The case file shows that
the applicant did not appeal on points of law against the decisions
of the latter court. He maintained that the Court of Cassation would
in any event have dismissed the appeals on the ground that he no
longer had an interest in having them examined since the period of
validity of the decrees in question had expired.
–
Decree no. 1
On an
unspecified date the applicant appealed against the decree of
10 August 1994. In a decision of 28 February 1995 the court
responsible for the execution of sentences dismissed the appeal,
taking the view that the application of the special prison regime was
justified. However, the restrictions were eased to allow the
applicant one hour-long telephone conversation monthly with members
of his family, in the absence of a visit by the latter; the
restriction on the time spent in outdoor exercise and the prohibition
on purchasing food requiring cooking were also lifted.
–
Decree no. 3
On 9
February 1996 the applicant appealed against the decree of 2 February
1996. In a decision of 26 March 1996 deposited with its registry on
30 March 1996 and served on the applicant on 30 April 1996, the court
responsible for the execution of sentences declared the appeal
inadmissible on the ground that, in accordance with the restrictive
case-law followed at the time, the court hearing the case did not
have the power to examine the merits of the restrictions imposed.
– Decree
no. 5
On 6
February 1997 the applicant appealed against the decree of 4 February
1997 (served the following day). In a decision of 6 May 1997
deposited with the registry on 15 May 1997 and served on the
applicant on 21 May 1997, the court, while upholding the application
of the special regime, relaxed the restriction on visits by family
members in order to allow the applicant two hour-long visits per
month.
– Decree
no. 6
On 4
August 1997 the applicant appealed against the decree of 31 July 1997
(served on 2 August 1997). In a decision of 16 October 1997
deposited with the registry on 22 October 1997 and served on the
applicant on 24 October 1997, the court responsible for the execution
of sentences, while upholding the application of the special regime,
lifted the restriction on the number of visits by family members.
– Decree
no. 7
On 9
February 1998 the applicant appealed against the decree of 4 February
1998. In a decision of 2 July 1998 deposited with the registry on 9
July 1998 and served on the applicant on 12 August 1998, the court
responsible for the execution of sentences dismissed the appeal on
the ground that the restrictions imposed on the applicant were
justified.
– Decree
no. 8
On 3
August 1998 the applicant appealed against the decree of 30 July 1998
(served the following day). In a decision of 30 November 1998
deposited with the registry on 9 December 1998 and served on the
applicant on 23 December 1998, the court responsible for the
execution of sentences dismissed the appeal on the ground that the
restrictions imposed on the applicant were justified.
– Decree
no. 9
On 1
February 1999 the applicant appealed against the decree of 27 January
1999. In a decision of 7 October 1999 deposited with the
registry on 20 October 1999 and served on the applicant on an
unspecified date, the court responsible for the execution of
sentences declared the appeal inadmissible. It observed that the
period of validity of the decree had expired on 27 July 1999 and
that, accordingly, the applicant no longer had an interest in having
it examined.
–
Decree no. 10
On 27
July 1999 the applicant appealed against the decree of 22 July
1999 (served on 24 July 1999). The Court has not been informed of the
outcome of this appeal.
– Decree
no. 11
On 28
December 1999 the applicant appealed against the decree of
23 December 1999. In a decision of 11 May 2000 deposited with
the registry on 23 May 2000 and served on the applicant on 21 July
2000, the court responsible for the execution of sentences declared
the appeal inadmissible as the applicant had declared his intention
not to pursue it.
– Decree
no. 12
On 26
June 2000 the applicant appealed against the decree of 22 June
2000 (served on 23 June 2000). In a decision of 6 November 2001 the
court responsible for the execution of sentences dismissed the appeal
on the ground that the validity of the impugned decree had expired.
– Decree
no. 13
On an
unspecified date the applicant appealed against the decree of
21 December 2000. In a decision of 23 April 2001 deposited with
the registry on 3 May 2001, the court responsible for the execution
of sentences dismissed the appeal as unsubstantiated.
– Decree
no. 14
On 21
June 2001 the applicant appealed against the decree of 18 June
2001 (served on 20 June 2001). In a decision of 14 November 2001 the
court responsible for the execution of sentences dismissed the appeal
on the ground that application of the special prison regime was
justified in view of the danger posed by the applicant and his links
with criminal circles.
– Decree
no. 15
On 17
December 2001 the applicant appealed against the decree of
13 December 2001 (served on 14 December 2001). In a decision of
11 April 2002 the court responsible for the execution of
sentences dismissed the appeal as unsubstantiated.
– Decree
no. 17
On an
unspecified date the applicant appealed against the decree of
28 December 2002. He requested the court responsible for the
execution of sentences to seek a review by the Constitutional
Court of the compatibility of paragraph 2 bis of section 41
bis (as amended by Law no. 279 of 2002) with several
articles of the Constitution.
In a
decision of 3 March 2003 served on the applicant on 8 April 2003, the
court responsible for the execution of sentences ordered that the
file be transmitted to the Constitutional Court. The decision was
taken on the grounds that, in so far as Law no. 279 of 2002 did not
require the Minister of Justice to give reasons for the decrees, an
issue of constitutionality could arise. The court observed in
particular that in the instant case the applicant had been subject to
the special prison regime since 1994 and that the reasons given for
the decrees extending application of the regime related to ongoing
links between the applicant and the criminal organisation to which he
belonged, notwithstanding the fact that he was subject to the special
regime.
By
decision no. 417 of 13 December 2004, deposited with the registry on
23 December 2004, the Constitutional Court dismissed the
objection as to constitutionality raised by the court responsible for
the execution of sentences, finding that it was manifestly
ill-founded.
– Decree
no. 18
On an
unspecified date the applicant appealed against the decree of
23 December 2003. He argued that the special regime was
hindering his rehabilitation, in breach of Article 27 of the
Constitution, and that it failed to respect the needs of his
personality, contrary to section 13 of Law no. 354 of 1975.
In a
decision of 19 November 2004 deposited with the registry on
15 December 2004, the court responsible for the execution of
sentences dismissed the appeal on the basis of the police
investigations, on the ground that application of the special regime
was justified on account of the applicant's links to organised crime.
– Decree
no. 19
On 23
December 2004 the applicant appealed against the decree of
17 December 2004. In a decision of 11 February 2005 deposited
with the registry on 28 February 2005, the court responsible for the
execution of sentences allowed the applicant's appeal. It took the
view that the security considerations which had been the reason for
applying the special prison regime were no longer valid; it therefore
ordered the measure in question to be rescinded.
C. The applicant's placement in a high-supervision
(Elevato Indice di Vigilanza – E.I.V.) prison unit
On
1 March 2005 the prison authorities placed the applicant in a
high-supervision (“E.I.V.”) unit.
On
24 April 2008 the Naples judge responsible for the execution of
sentences, on a provisional basis and pending the decision of the
court responsible for the execution of sentences, ordered a stay of
execution of the applicant's sentence and his release in order to
undergo urgent surgery. This decision was upheld on 2 October 2008 by
the Naples court responsible for the execution of sentences.
D. The applicant's health
The
applicant suffers from a number of disorders which oblige him to use
a wheelchair. From June 2000 to February 2005 he served his sentence
in the part of the hospital wing of Naples Prison (Secondigliano)
reserved for prisoners detained under the section 41 bis
regime.
On
an unspecified date the applicant applied to the Naples court
responsible for the execution of sentences for a stay of execution of
his sentence on health grounds, under Articles 146 and 147 of the
Criminal Code. In a decision of 18 January 2001 the court responsible
for the execution of sentences, basing its decision on a report drawn
up by the prison medical team, rejected the application on the ground
that the applicant was being held in the prison's hospital wing and
was receiving treatment appropriate to his state of health.
On
an unspecified date the applicant made a fresh application to the
judge responsible for the execution of sentences for a stay of
execution of his sentence on health grounds. In a decision of 22
March 2002 the judge rejected the application on the ground that the
applicant's state of health was not incompatible with detention in
the prison hospital wing. On 2 July 2002 the Naples court responsible
for the execution of sentences upheld that decision.
In
February 2007, after authorisation had been obtained from the court
responsible for the execution of sentences, the applicant was taken
to a Naples civil hospital for an operation to remove a kidney.
On
24 April 2008 the Naples judge responsible for the execution of
sentences provisionally stayed execution of the applicant's sentence
and ordered his release in order to undergo urgent surgery (see
paragraph 16 above).
According
to the information provided to the Court by the parties, the Naples
court responsible for the execution of sentences ordered a stay of
execution of the applicant's sentence on 2 October 2008 on account of
his state of health. The applicant had had an operation to remove one
of the two brain tumours on 3 September 2008 and his state of health
was found to be incompatible with detention. The court placed him
under house arrest for a period of six months, prohibiting contact
with any persons other than family members and medical personnel. The
court's decision to place the applicant under house arrest was based
on the applicant's criminal personality and the length of his
sentence and on a note from the Palermo police authorities dated 16
April 2008.
The
Court has not been informed of the applicant's current state of
health.
E. The monitoring of the applicant's correspondence
On
10 August 1994 the Minister of Justice issued the first decree
subjecting the applicant to the special prison regime and ordered the
monitoring of all his correspondence, subject to prior authorisation
by the judicial authority (see paragraphs 11 and 12 above).
The
corresponding decisions of the Naples court responsible for the
execution of sentences communicated to the Court relate to the period
between 2 July 1996 and 7 July 2004. The first decisions imposed the
measure in relation to all correspondence for an unspecified period.
On 3 August 1999 the judge responsible for the execution of
sentences fixed the maximum period at six months and ordered that the
applicant's correspondence with the European Court, in particular,
should not be monitored.
The
applicant furnished a copy of an undated letter and an envelope, both
addressed to his lawyer, Mr Vetrano, the latter postmarked 3 March
2000. Both documents had been inspected by the prison authorities,
but the corresponding stamps were not dated.
F. The applicant's applications for prison leave
On
16 October 1999 the applicant applied to the Milan District Court for
prison leave in order to attend his brother's funeral. On 18 October
1999 the court allowed the application but made the leave subject to
whatever detailed arrangements might be laid down by the courts
responsible for the execution of sentences. It also ordered that “the
other judicial authorities concerned, the public prosecutor's office
and the applicant” be informed of its decision.
The
case file shows that the Milan Court of Appeal rejected the
applicant's application on 19 October 1999 on account of the risk
that he might abscond. The decision was deposited with the registry
on 21 October 1999.
The
applicant stated that he had also applied for prison leave to attend
his partner's funeral.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Section 41 bis of Law no. 354 of 1975 and the
monitoring of correspondence
The relevant domestic law and practice summarised in the Ospina
Vargas v. Italy judgment (no. 40750/98, §§ 23-33,
14 October 2004) are set out below.
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 conflict with these
requirements.
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
include offences relating to Mafia activities.
Pursuant
to Law no. 36 of 1995, and subsequently Law no. 11 of 1998 and Law
no. 446 of 1999, application of the section 41 bis special
regime was extended until 31 December 2000. It was later extended
until 31 December 2002 pursuant to Law no. 4 of 19 January 2001.
On the entry into force on 23 December 2002 of Law no. 279, partly
amending the Prison Administration Act, the special prison regime
ceased to be temporary in nature.
On
the basis of legislative decree no. 773/2009, the special regime is
now applied for an initial period of four years (compared with one
year previously); this can subsequently be extended by two years
(compared with one year previously).
Before
Law no. 279 of 2002 came into force, the choice of measures resulting
from the application of section 41 bis was left to the
discretion of the Minister of Justice. However, the measures imposed
were generally 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 by family members and one telephone call per
month;
– monitoring
of all the prisoner's correspondence except for that with his lawyer;
– not
more than two hours per day to be spent outdoors;
– 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.
Section
14 ter of the Prison Administration Act provides for the
possibility of an appeal (reclamo) to the court responsible
for the execution of sentences against a decree imposing the special
prison 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 give a ruling within ten days. An
appeal to the Court of Cassation lies against the decision of the
court responsible for the execution of sentences; again, such an
appeal must be lodged within ten days of the date on which the
refusal by the court has been served.
Until
Law no. 279 of 2002 came into force, section 14 ter also
applied to complaints about decrees adopted by the Minister of
Justice under section 41 bis. Paragraphs 2 quinquies
and 2 sexties of section 41 bis have subsequently
provided for a special complaints procedure, which is nonetheless
modelled on the procedure laid down in section 14 ter.
The
Constitutional Court was asked to rule on whether such a system
complied with the principle of non-encroachment on matters reserved
for the legislature. In judgments nos. 349 and 410 of 1993 it held
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.
However,
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 containing a statement of reasons, the
Constitutional Court held that the power to order monitoring of a
prisoner's correspondence was vested in the courts alone. As a
result, section 41 bis could not be construed as empowering
the Minister of Justice to take measures relating to prisoners'
correspondence. Accordingly, from the end of 1993 the sole basis for
monitoring of correspondence was section 18 of Law no. 354 of 1975,
as amended by section 1 of Law no. 1 of 1977.
Under
that provision, the court before which proceedings are pending (until
the delivery of the first-instance judgment) or the court responsible
for the execution of sentences (during any subsequent proceedings)
may order the monitoring of prisoners' correspondence, stating
reasons for its decision; the provision does not, however, specify
the cases in which such a decision may be taken. In practice,
monitoring means interception of all a prisoner's correspondence,
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 stamped to show that they have been inspected.
The deletion of words or sentences is not permitted, but the judicial
authority may order that one or more letters should not be delivered,
in which case the prisoner must be informed immediately. Such an
order may also be made provisionally by the prison governor, who must
inform the judicial authority.
Section
18 of Law no. 354 of 1975 also provides that prisoners are allowed to
keep books and magazines and to use other means of communication.
This right may be restricted in a decision by the judicial authority,
in accordance with the same conditions that apply in the case of
correspondence.
Under
section 35 of the same law, prisoners may make sealed applications or
complaints concerning decisions taken in accordance with section 18
of Law no. 354 of 1975 to, inter alia, the prison authorities
and the court responsible for the execution of sentences.
In
judgment no. 351 of 14-18 October 1996 the Constitutional Court held
that the power of judicial review by the courts responsible for the
execution of sentences extended to the practical arrangements for
implementing a measure, regard being had both to the aim pursued and
to the fundamental rights guaranteed by the Constitution.
On
7 February 1997, applying the principles laid down by the
Constitutional Court in judgment no. 351/1996, the Prison
Administration Department of the Ministry of Justice sent a circular
to prison governors regarding organisation of the wings where
prisoners subject to the special regime were held. The circular
contained the following instructions, among others: prisoners would
from then on be allowed to use stoves; they would have access to
rooms equipped for sporting activities and to a library; visits by
family members could be replaced by telephone calls; and the use of
glass partitions would continue but, as a result, the searching of
visitors need not be so strict.
In
judgment no. 376 of 26 November to 5 December 1997 the Constitutional
Court reaffirmed that section 41 bis was compatible with the
Constitution, while amending and clarifying the manner in which it
was to be interpreted. It considered, in particular, 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 independent of
those which had justified its initial imposition. The Constitutional
Court emphasised that the special regime should not entail 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 was subjected
had to respect his personality, and a rehabilitation programme had to
be prepared and adapted on the basis of scientific observation of the
prisoner's personality and with his or her cooperation.
On
20 February 1998, in accordance with the principles laid down by the
Constitutional Court in judgment no. 376/1997, the Prison
Administration Department of the Ministry of Justice sent a circular
to prison governors regarding organisation of the wings where
prisoners subject to the special regime were held. The circular
contained the following instructions, among others:
– outdoor
exercise time was to be increased to four hours per day, but care was
to be taken to ensure that this did not become an opportunity for
meeting or making contact with other presumed members of the Mafia;
– the
outdoor exercise yards in Naples 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 presumed members of 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
allowed to use stoves except for the purpose of making hot drinks or
heating up pre-cooked food.
With
regard to the monitoring of correspondence, in judgment no. 26 of
8-11 February 1999 the Constitutional Court, ruling in a case
concerning the refusal of the prison authorities to allow a prisoner
to receive an erotic publication, declared unconstitutional sections
35 (on the remedies available to prisoners) and 69 (on the functions
and decisions of the judge responsible for the execution of
sentences) of Law no. 354 of 1975 in that they did not provide for
any form of judicial review of decisions likely to interfere with
prisoners' rights, in particular decisions to monitor correspondence
or to restrict the right to receive magazines or other periodicals.
Decisions by the authorities to which applications were made under
section 35 were adopted without adversarial proceedings and no appeal
to the ordinary courts or the Court of Cassation lay against them.
The lack of such a remedy had, moreover, already been noted and
criticised by the European Court in the Calogero Diana v. Italy
and Domenichini v. Italy judgments (15 November 1996, Reports
of Judgments and Decisions 1996-V).
Following
the entry into force of Law no. 95 of 8 April 2004, a new section 18
ter concerning the monitoring of correspondence has been added
to the Prison Administration Act. It provides that correspondence may
be monitored for a maximum period of six months in order to prevent
the commission of crimes or to maintain security in prisons and to
ensure the confidentiality of investigations. Monitoring is ordered
in a decision with a statement of grounds by the judicial authority,
at the request of the prosecuting authorities or the prison governor.
Paragraph 2 of section 18 ter provides that prisoners'
correspondence with, inter alia, their lawyers and
international human-rights bodies cannot be monitored. Lastly,
paragraph 6 of section 18 ter provides that complaints against
decisions to monitor correspondence may be lodged in accordance with
the procedure laid down in section 14 bis of the Prison
Administration Act.
As
is stated in the official report by the Ministry of Justice submitted
to the Court by the Government in May 2004, the following measures
may result from the application of section 41 bis as amended
by Law no. 279 of 2002, with a view to preventing contact with
the criminal organisation in question or other prisoners belonging to
it:
(a) outdoor
exercise time limited to four hours per day in groups of no more than
five prisoners (members of each group must be subject to the same
type of regime and the groups must be rotated every three months);
(b) stoves
made available to prisoners when the cells are opened and taken back
for storage elsewhere when the cells are closed;
(c) ban
on the use of FM radios, tape recorders and CD players;
(d) a
minimum of one visit per month and a maximum of two per month, in
rooms equipped in such a way that no objects may be handed over; a
ban on visits by persons other than family members, a cohabitant or a
lawyer, unless exceptional permission has been granted; after the
regime has been in force for six months, one telephone call per
month, lasting no more than ten minutes, to family members, who are
required to go to the prison nearest their place of residence;
(e) interviews
with lawyers, which are unlimited, are subject only to visual
surveillance by a warder; telephone calls are subject to the same
conditions regarding frequency and practical arrangements as calls to
family members;
(f) monitoring
of all the prisoner's correspondence except for that with members of
Parliament or the appropriate European and national judicial
authorities (the contents of the envelope are checked in the
prisoner's presence but the correspondence itself is not read);
(g) restrictions
on acquiring or receiving from outside prison sums of money and other
possessions and items (two parcels per month, weighing a maximum of
10 kg, plus two parcels a year containing only clothing and linen);
(h) ban
on being elected as a prisoners' representative;
(i) access
by ministers of faiths other than Catholicism may be permitted.
Having
regard to the reform introduced by Law no. 279 of 23 December
2002 and to the decisions of the Court (see, most recently, the
judgment in Ganci v. Italy,
no. 41576/98, §§ 19-31, ECHR 2003 XI), the
Court of Cassation, in a departure from its previous case-law, held
that prisoners had an interest in obtaining a decision even if the
period of validity of the impugned decree had expired, as the
decision had a direct impact on decrees subsequent to the one in
question (Court of Cassation, First Division, judgment of 26 January
2004, deposited with the registry on 5 February 2004, no. 4599,
Zara).
B. Placement in an E.I.V. prison unit
Under
the terms of sections 13 and 14 of Law no. 354 of 1975, the treatment
of each prisoner must be adapted to the particular demands of his or
her personality. The number of inmates in each prison and in each
wing of the prison must be limited in order to facilitate
individually tailored treatment. The assignment of prisoners to a
particular prison or their grouping within a prison wing must be
decided with reference to the possibility of rehabilitation and the
need to prevent prisoners from exerting a negative influence on one
another.
On
the basis of the principle of individually tailored treatment of
prisoners laid down in the above provisions and of the regulation
implementing Law no. 354 of 1975, circular no. 3479/5929 of 9 July
1998 issued by the Prison Administration Department provided for
three levels of detention corresponding to certain categories of
prisoner.
“High-security
units” are designed for prisoners accused or convicted of
membership of a Mafia-type criminal organisation, false imprisonment
with a view to extortion, or drug trafficking. In view of the danger
posed by these persons and the risk of their seeking to recruit or
intimidate others, particularly stringent measures are put in place
aimed at separating them from other prisoners and keeping them under
supervision. In addition, activities for these prisoners such as
outdoor exercise, visits, vocational training and sport take place
within a pre-defined area.
“Medium-security
units” are for prisoners accused or convicted of offences
committed with a view to facilitating the activities of Mafia-type
criminal organisations, and who therefore present a substantial
degree of danger.
“E.I.V.
units” are for prisoners who present a degree of danger such
that their detention in a medium-security unit would be inadequate to
ensure public order and safety. The danger posed by these prisoners
stems in particular from their involvement in terrorist crime, the
nature or number of the crimes committed, their attempts at escape or
serious acts of violence perpetrated by them against other prisoners
or prison officers. Under the terms of circular no. 3479/5929, in the
absence of any specific provisions governing the matter, E.I.V. units
are run along the same lines as the high security units. Contact
with prisoners in other units is prohibited and supervision is
particularly tight.
III. RECOMMENDATION REC(2006)2 OF THE COMMITTEE OF
MINISTERS TO MEMBER STATES ON THE EUROPEAN PRISON RULES (ADOPTED ON
11 JANUARY 2006)
The
Recommendation reads as follows:
“The Committee of Ministers, under the terms of
Article 15.b of the Statute of the Council of Europe,
Having regard to the European Convention on Human Rights
and the case law of the European Court of Human Rights;
...
Stressing that the enforcement of custodial sentences
and the treatment of prisoners necessitate taking account of the
requirements of safety, security and discipline while also ensuring
prison conditions which do not infringe human dignity and which offer
meaningful occupational activities and treatment programmes to
inmates, thus preparing them for their reintegration into society;
...
Recommends that governments of member states:
- be guided in their legislation, policies and practice
by the rules contained in the appendix to this recommendation, which
replaces Recommendation No. R (87) 3 of the Committee of Ministers on
the European Prison Rules;
...”
Appendix to Recommendation Rec(2006)2
“Basic principles
1. All persons deprived of their liberty shall be
treated with respect for their human rights.
2. Persons deprived of their liberty retain all rights
that are not lawfully taken away by the decision sentencing them or
remanding them in custody.
3 Restrictions placed on persons deprived of their
liberty shall be the minimum necessary and proportionate to the
legitimate objective for which they are imposed.
...
18.2 In all buildings where prisoners are required to
live, work or congregate:
...
24.1 Prisoners shall be allowed to communicate as often
as possible by letter, telephone or other forms of communication with
their families, other persons and representatives of outside
organisations and to receive visits from these persons.
24.2 Communication and visits may be subject to
restrictions and monitoring necessary for the requirements of
continuing criminal investigations, maintenance of good order, safety
and security, prevention of criminal offences and protection of
victims of crime, but such restrictions, including specific
restrictions ordered by a judicial authority, shall nevertheless
allow an acceptable minimum level of contact.
...
24.4 The arrangements for visits shall be such as to
allow prisoners to maintain and develop family relationships in as
normal a manner as possible.
...
24.10 Prisoners shall be allowed to keep themselves
informed regularly of public affairs by subscribing to and reading
newspapers, periodicals and other publications and by listening to
radio or television transmissions unless there is a specific
prohibition for a specified period by a judicial authority in an
individual case.
...
25.2 This regime shall allow all prisoners to spend as
many hours a day outside their cells as are necessary for an adequate
level of human and social interaction.
25.3 This regime shall also provide for the welfare
needs of prisoners.
...
27.1 Every prisoner shall be provided with the
opportunity of at least one hour of exercise every day in the open
air, if the weather permits.
...
27.3 Properly organised activities to promote physical
fitness and provide for adequate exercise and recreational
opportunities shall form an integral part of prison regimes.
27.4 Prison authorities shall facilitate such activities
by providing appropriate installations and equipment.
27.5 Prison authorities shall make arrangements to
organise special activities for those prisoners who need them.
27.6 Recreational opportunities, which include sport,
games, cultural activities, hobbies and other leisure pursuits, shall
be provided and, as far as possible, prisoners shall be allowed to
organise them.
...
29.2 The prison regime shall be organised so far as is
practicable to allow prisoners to practise their religion and follow
their beliefs, to attend services or meetings led by approved
representatives of such religion or beliefs, to receive visits in
private from such representatives of their religion or beliefs and to
have in their possession books or literature relating to their
religion or beliefs.
...
39. Prison authorities shall safeguard the health of all
prisoners in their care.
...
51.1 The security measures applied to individual
prisoners shall be the minimum necessary to achieve their secure
custody.
...
51.4 Each prisoner shall then be held in security
conditions appropriate to these levels of risk.
51.5 The level of security necessary shall be reviewed
at regular intervals throughout a person's imprisonment.
Safety
52.1 As soon as possible after admission, prisoners
shall be assessed to determine whether they pose a safety risk to
other prisoners, prison staff or other persons working in or visiting
prison or whether they are likely to harm themselves.
52.2 Procedures shall be in place to ensure the safety
of prisoners, prison staff and all visitors and to reduce to a
minimum the risk of violence and other events that might threaten
safety.
...
53.1 Special high security or safety measures shall only
be applied in exceptional circumstances.
53.2 There shall be clear procedures to be followed when
such measures are to be applied to any prisoner.
53.3 The nature of any such measures, their duration and
the grounds on which they may be applied shall be determined by
national law.
53.4 The application of the measures in each case shall
be approved by the competent authority for a specified period of
time.
53.5 Any decision to extend the approved period of time
shall be subject to a new approval by the competent authority.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant alleged that his continued detention, particularly
in view of his state of health, had amounted to treatment contrary to
Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that no other ground for declaring it inadmissible has been
established. It must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicant
The
applicant alleged that his continued detention under the special
prison regime provided for by section 41 bis of the Prison
Administration Act, and his subsequent placement in an E.I.V. unit,
amounted to torture “or, in the alternative, to inhuman and
degrading treatment”, in view of his state of health. Even the
ordinary prison regime had caused his health to deteriorate. The fact
that he used a wheelchair and had to live in the hospital wing of the
prison had aggravated his suffering. Furthermore, application of the
special regime had been extended on the ground that the applicant had
not participated in the programmes of cooperation with the judicial
process (he had not agreed to give evidence against his criminal
associates). The danger he posed might have justified derogating from
the ordinary prison rules for a limited period of a few days or a few
months, but no longer.
(b) The Government
The
Government submitted that the restrictions imposed on the applicant
under the special prison regime had not attained the minimum level of
severity required to fall within the scope of Article 3 of the
Convention. They stressed first of all that the restrictions in
question had been necessary to prevent the applicant, who posed a
danger to society, from maintaining contacts with the criminal
organisation to which he belonged. It also had to be pointed out that
not even the special regime had sufficed to keep the applicant's
criminal behaviour in check as, in spite of the restrictions, he had
been the subject of disciplinary action on several occasions on
account of his conduct in prison.
With
regard to the applicant's health the Government observed, firstly,
that his medical file showed that his state of health had not been
incompatible with detention. Secondly, the applicant had been placed
in the prison's hospital wing, where he had received care appropriate
to his condition. Where it had proved necessary he had also been
admitted to hospital outside prison.
2. The Court's assessment
(a) General principles
In
accordance with the Court's settled case-law, ill-treatment must
attain a minimum level of severity if it is to fall within the scope
of Article 3. The assessment of this minimum is relative; it
depends on all the circumstances of the case, such as the duration of
the treatment, its physical and mental effects and, in some cases,
the sex, age and state of health of the victim (see, among other
authorities, Price v. the United Kingdom, no. 33394/96, §
24, ECHR 2001 VII; Mouisel v. France, no. 67263/01, § 37,
ECHR 2002 IX; and Naumenko v. Ukraine, no. 42023/98,
§ 108, 10 February 2004). Allegations of ill-treatment
must be supported by appropriate evidence (see, mutatis mutandis,
Klaas v. Germany, 22 September 1993, § 30, Series A
no. 269). To assess this evidence, the Court adopts the standard of
proof “beyond reasonable doubt” but adds that such proof
may follow from the coexistence of sufficiently strong, clear and
concordant inferences or of similar unrebutted presumptions of fact
(see Ireland v. the United Kingdom, 18 January 1978, §
161 in fine, Series A no. 25, and Labita v. Italy
[GC], no. 26772/95, § 121, ECHR 2000 IV).
In
order for a punishment or treatment associated with it to be
“inhuman” or “degrading”, the suffering or
humiliation involved must in any event go beyond that inevitable
element of suffering or humiliation connected with a given form of
legitimate treatment or punishment (see Jalloh v. Germany
[GC], no. 54810/00, § 68, ECHR 2006 IX).
With
particular reference to persons deprived of their liberty, Article 3
imposes a positive obligation on the State to ensure that a person is
detained in conditions which are compatible with respect for his
human dignity, that the manner and method of the execution of the
measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that, given the practical demands of imprisonment, his health and
well-being are adequately secured by, among other things, providing
him with the requisite medical assistance (see Kudła v.
Poland [GC], no. 30210/96, § 94, ECHR 2000 XI, and
Rivière v. France, no. 33834/03, § 62,
11 July 2006). Hence, a lack of appropriate medical care and, more
generally, the detention in inappropriate conditions of a person who
is ill may in principle amount to treatment contrary to Article 3
(see, for example, İlhan v. Turkey [GC], no. 22277/93, §
87, ECHR 2000-VII, and Naumenko, cited above, § 112).
The
conditions of detention of a person who is ill must ensure that his
or her health is protected, regard being had to the ordinary and
reasonable demands of imprisonment. Although Article 3 of the
Convention cannot be construed as laying down a general obligation to
release detainees or place them in a civil hospital, even if they are
suffering from an illness which is particularly difficult to treat
(see Mouisel, cited above, § 40), it nonetheless imposes
an obligation on the State to protect the physical well being of
persons deprived of their liberty. The Court cannot rule out the
possibility that in particularly serious cases situations may arise
where the proper administration of criminal justice requires remedies
to be taken in the form of humanitarian measures (see Matencio v.
France, no. 58749/00, § 76, 15 January 2004, and Sakkopoulos
v. Greece, no. 61828/00, § 38, 15 January 2004).
In
applying these principles, the Court has already held that the
detention of an elderly sick person over a lengthy period may fall
within the scope of Article 3 (see Papon v. France (no. 1)
(dec.), no. 64666/01, ECHR 2001 VI; Sawoniuk v. the
United Kingdom (dec.), no. 63716/00, ECHR 2001 VI; and
Priebke v. Italy (dec.), no. 48799/99, 5 April 2001).
Furthermore, the Court has held that detaining a person suffering
from tetraplegia in conditions inappropriate to her state of health
amounted to degrading treatment (see Price, cited above, §
30). In these circumstances, the Court must take account of three
factors in particular in assessing whether the continued detention of
an applicant is compatible with his or her state of health where the
latter is giving cause for concern. These are: (a) the prisoner's
condition, (b) the quality of care provided and (c) whether or not
the applicant should continue to be detained in view of his or her
state of health (see Farbtuhs v. Latvia, no. 4672/02, §
53, 2 December 2004, and Sakkopoulos, cited above, §
39).
(b) Application of these principles to the present
case
In
the present case the question arises whether the applicant's
continued detention was compatible with his state of health and
whether that situation attained a sufficient level of severity to
fall within the scope of Article 3 of the Convention.
The
Court observes that the applicant suffered from a number of disorders
and was obliged to use a wheelchair. His health deteriorated over
time. The medical files submitted by his lawyers show that he
underwent a series of medical checks, tests and specific examinations
both during his lengthy stay in the hospital wing of Naples
(Secondigliano) Prison – between June 2000 and February 2005 –
and thereafter. On three occasions, in January 2001 and March and
July 2002, the Naples court responsible for the execution of
sentences, on the basis of the medical reports drawn up by the prison
doctors, refused the applicant's requests for a stay of execution of
his sentence, taking the view that the care provided by the prison's
in-house medical service was appropriate to his state of health (see
paragraphs 18 and 19 above).
In
2007 and 2008 the applicant underwent two major operations to remove
first a kidney and then a brain tumour. These were performed in a
civil hospital (see paragraphs 20 and 21 above).
In
the light of the evidence before it, the Court is of the view that
the national authorities fulfilled their obligation to protect the
applicant's physical well-being by monitoring his state of health
carefully, assessing the seriousness of his health problems and
providing him with the appropriate medical care. Where the
deterioration of the applicant's state of health warranted it, the
authorities – on two occasions – ordered his admission to
a civil hospital (see paragraphs 20 and 21 above).
In
particular, on 2 October 2008, the Naples court responsible for the
execution of sentences ordered a stay of execution of the applicant's
sentence on the ground that his state of health was incompatible with
detention, on account in particular of the removal of a brain tumour
on 3 September 2008 (see paragraph 21 above).
In
so far as the applicant appears to complain of it, the Court must
also examine whether the extended application of the special prison
regime provided for by section 41 bis amounts to a breach of
Article 3 of the Convention.
The
Court accepts that, generally speaking, the extended application of
certain restrictions may place a prisoner in a situation that could
amount to inhuman or degrading treatment. However, it cannot define a
precise length of time beyond which such a situation attains the
minimum threshold of severity required to fall within the scope of
Article 3. On the contrary, the length of time must be examined in
the light of the circumstances of each case; this entails, inter
alia, ascertaining whether the renewal or extension of the
restrictions in question was justified or not (see Argenti
v. Italy, no. 56317/00, § 21, 10 November
2005).
The
Court notes that the restrictions imposed as a result of the special
prison regime were necessary to prevent the applicant, who posed a
danger to society, from maintaining contacts with the criminal
organisation to which he belonged. The applicant did not submit any
evidence to the Court which would lead it to conclude that the
extension of those restrictions was patently unjustified (see,
mutatis mutandis, Argenti, cited above, §§
20-23, where the Court found that the application of the special
prison regime for over twelve years was not contrary to Article 3 of
the Convention).
Furthermore,
the court responsible for the execution of sentences lifted or eased
some of the restrictions (see paragraph 14 above). In addition, the
applicant was placed in the prison's hospital wing, where he received
treatment appropriate to his state of health (see paragraph 18
above); where it proved necessary, he was also admitted to hospital
outside prison (see paragraphs 20 and 21 above).
In
view of the foregoing, the Court considers that the treatment to
which the applicant was subjected did not exceed the unavoidable
level of suffering inherent in detention. As the minimum threshold of
severity required in order to fall within the scope of Article 3 of
the Convention was not attained, that provision has not been breached
in the present case.
Accordingly,
there has been no violation of Article 3.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant emphasised the substantial restrictions to which he had
allegedly been subject since 1994 in the exercise of his right to a
court. He alleged a violation of Article 6 § 1 of the
Convention, the relevant part of which provides:
“In the determination of his civil rights and
obligations or of any criminal charge against him, everyone is
entitled to a ... hearing ... by [a] ... tribunal ...”
The
Government contested that argument.
The
Court deems it necessary to consider this complaint by examining
first the period during which the applicant was subject to the
special prison regime provided for by section 41 bis of the
Prison Administration Act (August 1994-February 2005) and then the
period during which he was detained in an E.I.V. unit (March
2005-April 2008).
A. Restrictions on the right to a court during the
period of application of section 41 bis of the Prison
Administration Act
1. Admissibility
The
applicant pointed to systematic delays in the delivery of decisions
by the courts responsible for the execution of sentences.
The
Government contended that the only decision that had been delivered
late by the court responsible for the execution of sentences dated
back to 20 October 1999. The applicant's complaint was inadmissible
on two grounds. Firstly, it was out of time, as the decision in
question had become final on 30 October 1999, that is, considerably
more than six months before the application was lodged (Article 35 §
1 of the Convention). Secondly, the applicant had omitted to appeal
on points of law, meaning that the complaint was also inadmissible
for failure to exhaust domestic remedies.
The
Court reiterates that delays by the national courts in examining
appeals against the decrees implementing the special regime may, in
some circumstances, raise issues under the Convention.
Hence,
in the case of Messina v. Italy (no. 2) (no. 25498/94,
§§ 94 96, ECHR 2000 X) the Court, while
acknowledging that the right to an effective remedy was not infringed
merely by a failure to comply with a statutory time-limit, concluded
that the systematic failure to comply with the ten-day time-limit
imposed on the court responsible for the execution of sentences by
Law no. 354 of 1975 was liable to considerably reduce, and indeed
practically nullify, the impact of judicial review of the decrees
issued by the Minister of Justice. The Court arrived at this
conclusion by taking account of two factors in particular, namely the
limited period of validity of each decree imposing the special regime
and the fact that the Minister of Justice could issue a new decree
without being bound by any decision the court responsible for the
execution of sentences might have taken to rescind all or part of the
restrictions imposed by the previous decree. In Messina, the
Minister of Justice had issued new decrees reintroducing the
restrictions struck down by the court responsible for the execution
of sentences immediately after the expiry of the period of validity
of the impugned decrees.
In
addition, in Ganci (cited above, §
31), the Court found that the lack of any decision on the merits of
the appeals against the decrees issued by the Minister of Justice
breached the right to a court guaranteed by Article 6 § 1
of the Convention.
The
Court observes that in the instant case the court responsible for the
execution of sentences dismissed two of the applicant's nineteen
appeals against extension of the special prison regime on the ground
that the applicant no longer had an interest in having them examined.
The period of validity of the two decrees had indeed already expired
by the time of the court's decision. The appeals in question
related to decrees nos. 9 and 12 of the Minister of Justice (see
paragraph 14 above).
As
regards the decision dismissing the appeal against decree no. 9, the
Government correctly observed that it became final on 30 October
1999. As the application was lodged with the Court on 31 August 2000,
this part of the complaint under Article 6 § 1 is out of time
and must be declared inadmissible in accordance with Article 35 §§
1 and 4 of the Convention.
As
to the appeal against decree no. 12, the Court considers that this
part of the complaint concerning the right to a court is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that no other ground for
declaring it inadmissible has been established. It should therefore
be declared admissible.
2. Merits
(a) The parties' submissions
(i) The applicant
In
the applicant's submission, the breach of Article 6 § 1 resulted
from the decisions dismissing his appeals on the ground that he no
longer had an interest in having them examined since the period of
validity of the impugned ministerial decrees had expired.
(ii) The Government
The
Government submitted that the fact that the time-limit of ten days
laid down by the Prison Administration Act had been exceeded could
not be regarded as a breach of the obligation to conduct a judicial
review. The court responsible for the execution of sentences had
always ruled within a reasonable time given the time needed to
investigate cases. In the instant case the delay in responding had
not resulted in the applicant's being denied access to a court.
(b) The Court's assessment
The
Court observes firstly that prisoners have ten days from the date on
which the decree is served in which to lodge an appeal, which does
not have suspensive effect, with the court responsible for the
execution of sentences; the latter in its turn must give a ruling
within ten days.
Secondly,
it points out that, on 26 June 2000, the applicant lodged an appeal
against decree no. 12 of 22 June 2000 (served on 23 June 2000). In a
decision of 6 November 2001 the Naples court responsible for the
execution of sentences dismissed the appeal on the ground that the
validity of the impugned decree had expired.
Admittedly,
the mere fact of exceeding a statutory time-limit does not amount to
an infringement of a guaranteed right. However, the time taken to
hear an appeal may have an impact on its effectiveness. In
the instant case the court did not rule on the merits of the
applicant's appeal against decree no. 12. Consequently, the Court can
only conclude that the lack of any decision on the merits nullified
the effect of the courts' review of the decree issued by the Minister
of Justice (see Ganci, cited above, §§ 29 and
30).
Furthermore,
the applicable legislation lays down a time-limit of only ten days
for adjudication partly because of the seriousness of the special
regime's impact on prisoners' rights and partly because the impugned
decision remains valid for only a limited time (see, among many other
authorities, Argenti, cited above, § 45, and Viola v.
Italy, no. 8316/02, § 55, 29 June 2006).
In
conclusion, there has been a violation of Article 6 § 1 of the
Convention.
B. Restrictions on the right to a court during the
period of detention in an E.I.V. unit
1. Admissibility
(a) The parties' submissions
(i) The applicant
In
the applicant's view, the fact that Article 6 of the Convention was
applicable and had been breached was beyond dispute. Referring to the
case of Musumeci v. Italy (no. 33695/96, 11 January
2005), he pointed out that the Court had found that the E.I.V. regime
affected the applicant's civil rights. Noting the lack of an
appropriate judicial remedy, it had found that Article 6 § 1 of
the Convention was applicable and that the Italian authorities had
breached the applicant's right to challenge the application of the
E.I.V. regime before the courts.
Furthermore,
the “legal deficiency” pointed out by the Court persisted
to the present day.
(ii) The Government
In
the Government's submission, it was quite clear that Article 6 § 1
of the Convention was not applicable under its criminal head as the
matter did not concern the determination of a criminal charge. The
Court should therefore focus its attention on the civil head of
Article 6 § 1, examining firstly whether the choice of
institution in which a convicted prisoner served his sentence
amounted to a “civil right” and secondly, whether the
impact on the subjective situation of the convicted prisoner of being
placed in a particular institution concerned such a right.
The
Government submitted that the Court's case-law had tended to consider
the concept of “civil rights” as a whole, without
distinguishing between its two constituent components, and had thus
given greater weight in its analysis to the “civil”
character of the subjective situations under consideration (as
opposed to “rights” of a different, “non civil”,
character).
With
the exception of political rights, it would be difficult to identify
any individual “rights” within a legal system which were
not “civil” in nature. As a result, the reasoning of
those judgments which had dealt with the issue had, despite
appearances, focused far more on the concept of “rights”
than on their “civil” character. This was borne out by
the case-law in the sphere of proceedings concerning the public
service.
Both
before and after the reversal of the Court's case-law in Pellegrin
v. France ([GC], no. 28541/95, ECHR 1999 VIII), and even in
Vilho Eskelinen and Others v. Finland ([GC], no. 63235/00,
ECHR 2007 IV), it was the scope of State authority which,
acting as a legitimate brake on the manifestation of individual
interests, had been decisive in finding Article 6 § 1 not to be
applicable in certain situations.
The
choice of institution in which a prisoner served his or her sentence
fell exclusively within the scope of the administrative authorities'
discretionary powers and was based on considerations falling wholly
within the sphere of public law. These included order and security
and the need to prevent possible acts of violence or escape attempts
by prisoners. In the presence of such extensive powers the subjective
situation of the prisoner and his or her aspirations and claims were
the subject of purely residual protection which could not have the
same ranking in the legal system as the protection afforded to
“rights”.
Consequently,
the applicant could not claim a “right” and hence could
not demand to have access to a “court”, for the purposes
of the Convention, in order to challenge the decision of the prison
authorities to assign him to an E.I.V. unit.
The
Government further contended that the Court had not indicated, either
in its admissibility decision or in the judgment in Musumeci,
what specific civil rights were affected by the prisoner's assignment
to an E.I.V. unit.
In
any event, even assuming that some of the applicant's subjective
interests could be characterised as “rights” and could
have been subject to occasional restrictions on account of his
placement in an E.I.V. unit, that was not sufficient to confer the
status of a “right” on his interest in not being assigned
to that unit and to make Article 6 § 1 applicable to disputes
relating to his assignment.
Prisoners
had the right to appeal in court proceedings against the restriction
of one of their rights following their placement in a particular unit
of a prison, but had no right whatsoever to appeal before the courts
against the decision to place them there.
(iii) The third-party intervener
The
Slovakian Government observed that the law in their country provided
for the adoption of specific measures with respect to prisoners
considered to be particularly dangerous. In order, among other aims,
to ensure the effective execution of the sentences being served by
such prisoners, secure units had been created in prisons (prisoners
detained under this regime were separated from those detained under
the “ordinary” regime and the premises set aside for them
were under constant CCTV surveillance).
Prisoners
had the right to bring an administrative action against a decision
assigning them to a secure unit where the decision directly
interfered with their rights, legally protected interests or
obligations. In addition, if placement in the secure unit interfered
with their human rights and fundamental freedoms, they could lodge a
constitutional complaint under Article 127 of the Constitution.
The
Slovakian Government submitted that decisions concerning the
practical aspects of daily prison life did not, as a general rule,
impact on prisoners' civil rights and obligations; hence, Article 6 §
1 of the Convention should not apply automatically.
(b) The Court's assessment
The
Court is of the view that Article 6 § 1 of the Convention is not
applicable under its criminal head, as the proceedings concerning the
prison system did not relate in principle to determination of a
“criminal charge”.
On
the other hand, the question of access to a court with jurisdiction
to rule on placement in an E.I.V. unit and the restrictions liable to
accompany it should be examined under the civil head of Article 6 §
1, which secures to everyone the right to have “any claim
relating to his civil rights and obligations” brought before a
“court or tribunal”.
There
are two aspects to the question in issue: whether there was a
“dispute” (contestation) over a “right”
and whether or not the right in question was a “civil”
one.
As to the first aspect, the Court points out firstly
that, according to its consistent case-law, Article 6 § 1
applies only to a genuine and serious “dispute” (see
Sporrong and Lönnroth v. Sweden, 23 September 1982, §
81, Series A no. 52). The dispute may relate not only to the actual
existence of a right but also to its scope and the manner of its
exercise (see, inter alia, Zander v. Sweden, 25
November 1993, § 22, Series A no. 279 B), and the outcome
of the proceedings must be directly decisive for the right in
question, mere tenuous connections or remote consequences not being
sufficient to bring Article 6 § 1 into play (see, inter alia,
Masson and Van Zon v. the Netherlands, 28 September 1995, §
44, Series A no. 327 A, and Fayed v. the United Kingdom,
21 September 1994, § 56, Series A no. 294 B).
Secondly,
the Court notes that in February 1999 the Constitutional Court found
sections 35 and 69 of the Prison Administration Act to be in breach
of the Constitution, as they did not provide for judicial review of
decisions liable to infringe prisoners' rights (see paragraph 39
above).
The
Court notes that most of the restrictions to which the applicant was
allegedly subjected relate to a set of prisoners' rights which the
Council of Europe has recognised by means of the European Prison
Rules, adopted by the Committee of Ministers in 1987 and elaborated
on in a Recommendation of 11 January 2006 (Rec(2006)2). Although this
recommendation is not legally binding on the member States, the great
majority of them recognise that prisoners enjoy most of the rights to
which it refers and provide for avenues of appeal against measures
restricting those rights.
It
follows that a “dispute (contestation) over a right”
for the purposes of Article 6 § 1 can be said to have existed in
the instant case.
As
to the second aspect, the Court reiterates that “Article 6 §
1 extends to 'contestations' (disputes) over civil 'rights'
which can be said, at least on arguable grounds, to be recognised
under domestic law, irrespective of whether they are also protected
under the Convention” (see, inter alia, Editions
Périscope v. France, 26 March 1992, § 35, Series A
no. 234 B, and Zander, cited above).
The
Court notes that some of the restrictions alleged by the applicant –
such as those restricting his contact with his family and those
affecting his pecuniary rights – clearly fell within the sphere
of personal rights and were therefore civil in nature (see Ganci,
cited above, § 25).
Against
this background the Court reiterates that in Golder v. the United
Kingdom (21 February 1975, § 36, Series A no. 18), it held
as follows:
“... the right of access [to a court] constitutes
an element which is inherent in the right stated by Article 6 §
1. This is not an extensive interpretation forcing new obligations on
the Contracting States: it is based on the very terms of the first
sentence of Article 6 § 1 read in its context and having regard
to the object and purpose of the Convention, a lawmaking treaty (see
the Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23, §
8), and to general principles of law”.
The
Court is well aware that it is essential for States to retain a wide
discretion with regard to the means of ensuring security and order in
the difficult context of prison. However, it reiterates that “justice
cannot stop at the prison gate and there is ... no warrant for
depriving inmates of the safeguards of Article 6” (see Ezeh
and Connors v. the United Kingdom [GC], nos. 39665/98 and
40086/98, § 83, ECHR 2003 X).
Any
restriction affecting these individual civil rights must be open to
challenge in judicial proceedings, on account of the nature of the
restrictions (for instance, a prohibition on receiving more than a
certain number of visits from family members each month or the
ongoing monitoring of correspondence and telephone calls) and of
their possible repercussions (for instance, difficulty in maintaining
family ties or relationships with non-family members, exclusion from
outdoor exercise). By this means it is possible to achieve the fair
balance which must be struck between the constraints facing the State
in the prison context on the one hand and the protection of
prisoners' rights on the other.
In
conclusion, the Court considers that the complaint concerning the
restrictions to which the applicant was allegedly subjected as a
result of his being placed in an E.I.V. unit is compatible ratione
materiae with the provisions of the Convention since it relates
to Article 6 under its civil head. Since this complaint is not
manifestly ill founded within the meaning of Article 35 § 3
of the Convention and no other ground for declaring it inadmissible
has been established, the Court declares it admissible.
2. Merits
(a) The parties' submissions
(i) The applicant
The
applicant submitted that Article 6 § 1 of the Convention had
been breached as a direct consequence of the lack of a remedy
enabling him to challenge the prison authorities' decision to place
him in an E.I.V. unit.
(ii) The Government
The
Government considered it necessary to make a distinction between
prison regimes such as the one provided for by section 41 bis
of the Prison Administration Act, and placement in a part of a
prison, for instance an E.I.V. unit, where the degree of supervision
could vary.
The
former concerned the rules governing the treatment of prisoners and
could also entail limiting their enjoyment of certain rights. For
that reason, the law provided for prisoners to be able to challenge
the application of a regime other than the ordinary prison regime by
means of a procedure affording all the safeguards of Article 6 §
1.
The
assignment of prisoners to a particular part of a prison, on the
other hand, was a question of “logistics”; it was purely
and simply a matter of assigning them to premises (prisons or prison
wings) with specific security features.
Hence,
application of the regime provided for in section 41 bis and
placement in an E.I.V. unit were two different things. This was borne
out by the fact that the two were sometimes combined: a prisoner
subject to the special regime who might join forces with members of
other criminal organisations detained under the same regime clearly
had to be separated from those other prisoners by being placed in
another part of the prison (such as the E.I.V. unit) where he would
serve his sentence in the company of one or more prisoners who were
not a source of problems and concerns.
The
Government further submitted that the placement of prisoners in an
E.I.V. unit did not entail any restrictions on the enjoyment of their
rights: there was no difference between their treatment and that of
ordinary prisoners in terms of the number of visits by relatives,
being able to receive mail without it being inspected, managing sums
of money, outdoor exercise or recreational and cultural activities.
The
Government observed that, in order to ascertain whether or not they
came within the scope of Article 6 of the Convention, it was first
necessary to specify which civil rights were supposedly being
restricted. In its only existing ruling on the subject, namely the
admissibility decision in Musumeci of 17 December 2002, the
Court had not indicated which civil rights were restricted as a
result of placement in an E.I.V. unit. In concluding that Article 6
was applicable, it had confined itself to citing Constitutional Court
judgment no. 26 of 1999. However, that judgment in no way
concerned the placement of prisoners in different prisons or on
different wings within those prisons; it related in particular to the
right of all prisoners to receive magazines of a “certain type”
through the post.
Furthermore,
Mr Enea claimed to have been subject to continuing restrictions on
his civil rights even after the lifting of the special prison regime,
referring, inter alia, to a reduction in the number of visits
by relatives (four a month instead of six) and to the monitoring of
his correspondence.
The
Government observed first of all that the applicant had failed to
prove his allegations. Secondly, they stressed that the supposed
restrictions arose “in any event out of generally applicable
laws and were not a direct consequence of assignment to an E.I.V.
unit”.
The
legislative provision in question was Article 37 (8) of Presidential
Decree no. 230 of 30 June 2000, which applied to visiting
arrangements in respect of all prisoners convicted of certain serious
crimes referred to in section 4 bis of the Prison
Administration Act. The statutory provision governing the monitoring
of correspondence was section 41 bis paragraph 2 quater e
of the same Act.
Lastly,
the Government pointed out that neither circular no. 3479/5929
issued by the Prison Administration Department on 9 July 1998 nor any
law provided for restrictions on the civil rights of prisoners placed
in an E.I.V. unit.
(b) The Court's assessment
The
Court observes that, in raising this complaint, the applicant stated
first of all that despite the lifting of the special prison regime
under section 41 bis of the Prison Administration Act on 28
February 2005, he had continued to be subject to the same
restrictions of his fundamental rights until his release in April
2008. At the hearing before the Court on 5 November 2008 his
lawyers maintained that all their client's appeals against the
monitoring of his correspondence during his detention in the E.I.V.
unit had been dismissed. In addition, the applicant had not received
any visits. Lastly, the applicant's representatives said that they
had been unable to find out precisely what restrictions had been
imposed on the applicant, as his placement in the E.I.V. unit was
covered by the rules of confidentiality.
The
Court notes that the voluminous case file contains numerous documents
relating to the period during which the applicant was subject to the
special prison regime under section 41 bis. These
include ministerial decrees applying the regime, appeals against
those decrees, judicial decisions authorising the monitoring of the
applicant's correspondence and medical files.
However,
as regards the period from March 2005 to April 2008, the Court cannot
overlook the fact that the file contains no documents corroborating
the applicant's allegations, whether in the form of a decision
authorising the monitoring of his correspondence, an appeal against
such a decision or any evidence of the continued application of the
other restrictions linked to the section 41 bis regime. On the
contrary, the applicant's placement in an E.I.V. unit had the effect,
inter alia, of enabling him to receive four instead of two
family visits per month and to be given an individual cell.
The
Court also notes that the E.I.V. units were introduced by circular
no. 3479/5929 of 9 July 1998 (see paragraph 44 above) and that
placement in an E.I.V. unit occurs on the basis of the principle of
individually tailored treatment of prisoners under sections 13 and 14
of Law no. 354 of 1975 (see paragraphs 43 and 44 above). The Court
stresses that these provisions, taken together, indicate with
sufficient clarity the scope and manner of exercise of the
authorities' discretion in this sphere.
The
Court observes that, while it is true that a prisoner cannot
challenge per se the merits of a decision to place him or her
in an E.I.V. unit, an appeal lies to the courts responsible for the
execution of sentences against any restriction of a “civil”
right (affecting, for instance, a prisoner's family visits or
correspondence). However, given that in the instant case the
applicant's placement in the unit did not entail any restrictions of
that kind, even the possible lack of such a remedy could not be said
to amount to a denial of access to a court.
Consequently,
the Court considers that there has been no violation of Article 6 §
1 in the instant case as regards the applicant's right to have a
dispute concerning his “civil rights and obligations”
determined by a court.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
(RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE)
The
applicant contended that the continued application of the special
prison regime had breached his right to respect for his private and
family life. He relied on Article 8 of the Convention, which
provides:
“1. Everyone has the right to respect
for his private and family life ....
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society ...
for the prevention of disorder or crime...”
The
Government contested that argument.
A. The parties' submissions
1. The applicant
The
applicant submitted that the restrictions imposed on him on account
of the extended application of the special prison regime had had a
disastrous effect on his private and family life. He stressed in
particular the reduction in the number of visits to one hour-long
visit per month and the arrangements governing visits, which had been
extremely distressing for both him and the members of his family.
Visits had taken place in a tiny room and no physical contact of any
kind had been possible between the prisoner and his relatives because
of a glass partition which divided the room right up to the ceiling
and prevented persons from holding hands or speaking to each other
except through a grille. Furthermore, the visits had been filmed and
recorded in their entirety. His relationship with the members of his
family had suffered greatly as a result.
In
addition, he stated that visits had also been restricted during his
time in the E.I.V. unit – albeit to a different extent, with
four visits being allowed instead of six.
Furthermore,
the applicant had been confined in an individual cell with a smaller
surface area than the cell he had previously shared with other
inmates.
Lastly, he had been refused prison leave to attend the funerals of
his brother and partner.
2. The Government
The
Government reiterated their arguments concerning the danger presented
by the applicant and the need, where prisoners detained under the
special regime were concerned, to restrict the number of visits and
impose very strict visiting arrangements. As to the period spent in
the E.I.V. unit, the Government again stressed that no restrictions
had been imposed on the applicant with regard to the number of visits
or outdoor exercise time. They further considered that being placed
in a smaller, individual cell could not be regarded as a restriction
on the right to respect for one's private and family life.
B. The Court's assessment
The
Court has already been called upon to rule on whether the
restrictions arising out of the application of section 41 bis in
the sphere of certain prisoners' private and family life constituted
interference which was justified in terms of Article 8 § 2
of the Convention (see Messina, cited above, §§ 59 74,
and Indelicato v. Italy (dec.), no. 31143/96, 6 July 2000).
According to the Court's case-law, the regime laid
down in section 41 bis is designed to cut the links between
the prisoners concerned and their original criminal environment, in
order to minimise the risk that they will make use of their personal
contacts with criminal organisations. Before the introduction of the
special regime, many dangerous prisoners were able to maintain their
positions within the criminal organisations to which they belonged,
to exchange information with other prisoners and with the outside
world and to organise and procure the commission of criminal
offences. In that context the Court considers that, given the
specific nature of the phenomenon of organised crime, particularly of
the Mafia type, and the fact that family visits have frequently
served as a means of conveying orders and instructions to the
outside, the – admittedly substantial – restrictions on
visits, and the accompanying controls, could not be said to be
disproportionate to the legitimate aims pursued (see Salvatore v.
Italy (dec.), no. 42285/98, 7 May 2002, and Bastone v. Italy
(dec.), no. 59638/00, ECHR 2005 II).
The
Court has also had to consider the question whether extended
application of this regime to a prisoner infringed the rights
guaranteed by Article 8 of the Convention. In Gallico v. Italy
(no. 53723/00, § 29, 28 June 2005), it saw fit to specify that
it did not consider that there had been a breach of Article 8 simply
on account of the passage of time.
In
the instant case the Court observes that the applicant was subject to
the special prison regime from 10 August 1994 until 1 March 2005, and
that each time the measure was extended the Minister of Justice took
account of recent police reports stating that the applicant was still
dangerous. It also stresses that the restrictions imposed on the
applicant were eased in February 1995 (one hour-long telephone
conversation with family members was permitted in the absence of a
family visit), May 1997 (two hour-long visits per month permitted)
and October 1997 (lifting of the restriction concerning the number of
family visits). Application of the special regime was discontinued on
11 February 2005 by the Naples court responsible for the execution of
sentences on the ground that the security considerations which had
justified it were no longer valid (see paragraphs 11-14 above).
As
to the applicant's detention in an E.I.V. unit, the Court observes
that he had the right to four family visits per month and did not
claim to have encountered any difficulties in exercising that right
which, moreover, represented a considerable increase compared with
the previous situation. As regards his placement in a smaller
individual cell, the Court notes that the applicant did not
substantiate this complaint in any way.
Finally,
as regards the last complaint, the case file does not contain any
request by the applicant for prison leave in order to attend his
partner's funeral. This part of the complaint is therefore manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
As to
the remainder, the Court observes that the final domestic decision
refusing the applicant prison leave to visit his brother's grave was
deposited with the registry of the Milan Court of Appeal on
21 October 1999 (see paragraph 28 above), that is to say, more
than six months prior to the lodging of the present application on
31 August 2000.
Consequently,
this part of the complaint is out of time and must be declared
inadmissible in accordance with Article 35 §§ 1 and 4 of
the Convention.
In
the light of the foregoing, the Court considers that the restrictions
on the applicant's right to respect for his private and family life
did not go beyond what, within the meaning of Article 8 § 2 of
the Convention, was necessary in a democratic society in the
interests of public safety and for the prevention of disorder and
crime.
This
complaint is therefore manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
(RIGHT TO RESPECT FOR CORRESPONDENCE)
The
applicant contended that the monitoring of his correspondence had
been in breach of the right guaranteed by Article 8 of the
Convention, the relevant parts of which provide:
“1. Everyone has the right to respect
for ... his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of ... public safety or ... for the prevention of
disorder or crime....”
The
Government contested that argument.
A. Admissibility
The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that no other ground for declaring it inadmissible has
been established. It should therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicant
The
applicant alleged that the monitoring of his correspondence, attested
to by the corresponding stamp, had been in breach of Article 8 of the
Convention. The breach had been continuous from the time of his
arrest until his temporary release on 24 April 2008.
(b) The Government
The
Government pointed out first of all that Law no. 95 of 8 April 2004
had added a new section 18 ter to the Prison Administration
Act stating that, in order to prevent the commission of crimes or
maintain prison security and the confidentiality of investigations,
correspondence could be monitored for a maximum period of six months.
Monitoring was authorised on the basis of a reasoned order of the
judicial authority at the request of the public prosecutor's office
or the governor of the institution where the person concerned was
detained. The second paragraph of section 18 ter stated that
prisoners' correspondence with their lawyers and with international
human rights bodies was not subject to monitoring.
However,
in the Government's submission, section 18 of the Prison
Administration Act had satisfied the requirements of Article 8 of the
Convention even before this, as monitoring (1) was ordered by a
judge, (2) was designed to sever the links between prisoners and
criminal organisations, (3) was limited in duration and (4) was
amenable to appeal before the judge responsible for the execution of
sentences.
Furthermore,
in the instant case, the monitoring of the applicant's correspondence
had pursued a legitimate aim, namely to protect public order and
national security by ensuring that correspondence was not used as a
means of conveying prohibited messages.
Finally,
the Government emphasised that in any event, in the instant case, the
statutory provision governing the monitoring of the applicant's
correspondence had not been section 18 of the Prison Administration
Act but rather section 41 bis, paragraph 2 quater e, a
provision which had never been criticised by the Court and which,
moreover, was not open to criticism as it met all the criteria
required by the Court. The two documents submitted by the applicant
did not constitute sufficient evidence, as they gave no indication of
the sender or addressee or the date of inspection.
2. The Court's assessment
The
Court notes that there was “interference by a public authority”
with the exercise of the applicant's right to respect for his
correspondence under Article 8 § 1. Such interference will
contravene Article 8 § 1 unless it is “in accordance with
the law”, pursues one or more of the legitimate aims referred
to in paragraph 2 and, furthermore, is “necessary in a
democratic society” in order to achieve them (see, among many
other authorities, Calogero Diana v. Italy, 15 November 1996,
§ 28, Reports 1996 V; Domenichini v. Italy,
15 November 1996, § 28, Reports 1996 V; and Labita,
cited above, § 179).
The
Court observes that the monitoring of the applicant's correspondence
was ordered by the judge responsible for the execution of sentences
with explicit reference to section 18(7) of the Prison Administration
Act only from 12 August 1997 onwards. Subsequently, in the decision
of 3 August 1999 and those which followed it, the judge stipulated a
maximum period of six months and ordered that the applicant's
correspondence with the Court, inter alia, should not be
monitored (see paragraph 25 above). Contrary to the Government's
assertion, therefore, the competent judicial authority at no point
authorised the monitoring of the applicant's correspondence on the
basis of section 41 bis, paragraph 2 quater e of the
Act. The latter provision, moreover, is just as imprecise as section
18 of the impugned Act.
With
regard to the two documents included in the case file which bear a
stamp showing that they were inspected (a handwritten letter and an
envelope posted on 3 March 2000), the Court considers it likely that
they were part of the correspondence sent by the applicant to his
lawyer, Mr Vetrano.
The
Court does not underestimate the actions of the judge responsible for
the execution of sentences in limiting the scope and duration of the
monitoring arrangements from August 1999 onwards. However, it is of
the view that the monitoring of the applicant's correspondence was in
breach of Article 8 of the Convention as it was not “in
accordance with the law”, given that section 18 of the Prison
Administration Act does not regulate either the duration of measures
monitoring prisoners' correspondence or the reasons capable of
justifying such measures, and does not indicate with sufficient
clarity the scope and manner of exercise of the discretion conferred
on the authorities in the relevant sphere (see, inter alia,
Labita, cited above, §§ 175-185). It sees no reason
to depart in the instant case from its existing case-law, designed to
ensure that all prisoners enjoy the minimum degree of protection to
which citizens are entitled under the rule of law in a democratic
society (see Calogero Diana, cited above, § 33, and
Campisi v. Italy, no. 24358/02, § 50, 11 July 2006).
In
the light of the foregoing, the Court finds that the monitoring of
the applicant's correspondence from 10 August 1994 to 7 July 2004 was
not “in accordance with the law” within the meaning of
Article 8 of the Convention, with the result that there has been a
violation of that provision. This finding makes it unnecessary to
examine whether the other requirements of Article 8 were satisfied.
As
regards the period after that date and until the stay of execution of
the applicant's sentence (on 24 April 2008), the Court simply notes
that there are no documents in the case file which support the
assertions of the applicant's representatives.
Accordingly,
it finds that there has been no violation of Article 8 of the
Convention as regards the alleged monitoring of the applicant's
correspondence after 7 July 2004.
The
Court also takes note of the entry into force of Law no. 95 of
2004 amending the Prison Administration Act by introducing a new
section 18 ter. However, the amendments in question do not
serve to redress violations which occurred before they entered into
force (see Argenti, cited above, § 38).
V. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
The
applicant also complained of a violation of Article 9 of the
Convention, which provides:
“1. Everyone has the right to freedom
of thought, conscience and religion; this right includes freedom to
change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or
beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of
public safety, for the protection of public order, health or morals,
or for the protection of the rights and freedoms of others.”
The
Government contested the applicant's argument.
A. The parties' submissions
1. The applicant
The
applicant contended that the application of the special prison regime
had prevented him from practising his religion by taking part in
liturgical celebrations and performing other acts of worship. In
particular, he had been unable to attend the funerals of his brother
and partner.
2. The Government
The
Government denied that there had been any restrictions on the
applicant's right to manifest his religious beliefs. They also
observed that religious services were held once a week in Naples
Prison and that the applicant had not been prohibited from taking
part.
The
Government further noted that full and reasonable grounds had been
given for refusing the applicant's request for prison leave to attend
his brother's funeral.
B. The Court's assessment
The
Court notes that the applicant did not substantiate the first part of
his complaint. The case file does not contain any evidence that the
applicant was unable to take part in acts of worship. As to the
remainder, the Court points out that it has already rejected (at
paragraph 130 above) the second and third parts of the complaint
under Article 8 of the Convention.
Consequently,
this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained of the lack of an effective remedy enabling him
to challenge the repeated extensions of the special prison regime and
his placement in the E.I.V. unit. Article 13 of the Convention
provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Court has reached the conclusion that there has been no violation of
Article 6 § 1 of the Convention as regards the
applicant's right to a court (see paragraph 120 above). Accordingly,
given that the requirements of Article 6 are stricter than, and
absorb, those of Article 13 (see Kudła, cited above,
§ 146), it is not necessary to rule on this complaint.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 100,000 euros (EUR) by way of just satisfaction for
the non-pecuniary damage sustained on account of the violation of his
fundamental rights. The amount claimed was justified in view of the
“persistent multiple violations of the Convention and their
exceptionally serious nature”.
The
Government did not express an opinion on this point.
The
Court points out that it has found a violation of the Convention only
with regard to one aspect of the applicant's complaint concerning his
right to a court and the monitoring of his correspondence. In the
circumstances of the case, it considers that the finding of a
violation is sufficient to compensate for the non-pecuniary damage
sustained.
B. Costs and expenses
Providing
documentary evidence in support of their claims, the applicant's
lawyers claimed reimbursement of the costs and expenses incurred
before the Court and in the numerous sets of proceedings before the
domestic judicial authorities. They claimed the sum of EUR 30,000
plus value-added tax (VAT) and a contribution to the lawyers'
insurance fund (CPA) and stressed the large number of memorials
submitting during the proceedings and their participation in the
Grand Chamber hearing.
The
Government did not express an opinion on this point.
The
Court reiterates that only costs found to have been actually and
necessarily incurred and which are reasonable as to quantum are
recoverable under Article 41 of the Convention (see, among other
authorities, Roche v. the United Kingdom [GC], no.
32555/96, § 182, ECHR 2005 X).
The
present case is of some complexity as it entailed examination by the
Chamber and the Grand Chamber and also several sets of observations
and a hearing. It also raises important legal issues.
Ruling
on an equitable basis in the light of its practice in comparable
cases, the Court awards the applicant EUR 20,000 in respect of costs
and expenses.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
Declares admissible unanimously the applicant's
complaint under Article 3 of the Convention;
Holds by fifteen votes to two that there has
been no violation of Article 3;
Declares unanimously the applicant's complaint
under Article 6 § 1 of the Convention concerning his right to a
court during the period of application of the special prison regime
admissible as regards decree no. 12 of 22 June 2000 and the
remainder of the complaint inadmissible;
Holds unanimously that there has been a
violation of Article 6 § 1 as regards the applicant's right
to a court during the period of application of the special prison
regime under decree no. 12 of 22 June 2000;
Declares admissible by sixteen votes to one the
applicant's complaint under Article 6 § 1 concerning his right
to a court during his detention in an E.I.V. unit;
Holds unanimously that there has been no
violation of Article 6 § 1 as regards the applicant's right
to a court during his detention in an E.I.V. unit;
Declares admissible unanimously the applicant's
complaint under Article 8 of the Convention as regards his right to
respect for his correspondence and the remainder of the complaint
inadmissible;
Holds unanimously that there has been a
violation of Article 8 as regards the applicant's right to
respect for his correspondence from 10 August 1994 until 7 July 2004
and no violation thereafter;
Declares inadmissible unanimously the
applicant's complaint under Article 9 of the Convention;
Holds unanimously that it is not necessary to
rule on the complaint under Article 13 of the Convention;
Holds by fifteen votes to two that the finding
of a violation constitutes in itself sufficient just satisfaction for
the non-pecuniary damage sustained by the applicant;
Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months,
EUR 20,000 (twenty thousand euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 17 September 2009.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the partly dissenting opinion of Judges
Kovler and Gyulumyan is annexed to this judgment.
J.-P.C.
V.B.
PARTLY DISSENTING OPINION OF JUDGES KOVLER AND GYULUMYAN
We do
not share the opinion of the majority expressed above that there has
not been a violation of Article 3 of the Convention.
We
believe that the applicant's allegation that his continued detention
under the special prison regime amounted to inhuman and degrading
treatment in view of his state of health is well founded. As regards
the supposedly similar situations of other Italian prisoners detained
under the special regime, cited in the judgment (see paragraphs
64-66), the fact that Mr Enea used a wheelchair and had to remain in
the prison hospital between June 2000 and February 2005 leads us
to conclude that his situation was not comparable to theirs. We are
more inclined to follow the conclusions of the Mathew
judgment, especially the Court's concern “that, despite a
request to that effect from the applicant, no attempt appears to have
been made to find a place of detention appropriate to the
applicant...” (see Mathew v. the Netherlands, no.
24919/03, § 204, ECHR 2005-IX). The prison hospital was not, to
our mind, an appropriate place in which to detain Mr Enea for several
years, even taking into account the potential danger posed by the
applicant as a member of a Mafia-type criminal organisation (compare
Farbtuhs v. Latvia, no. 4672/02, § 53, 2 December 2004,
and Sakkopoulos v. Greece, no. 61828/00, § 38, 15 January
2004).
The
Court's conclusion that the national authorities fulfilled their
obligation to protect the applicant's physical well-being by
monitoring his state of health carefully (see paragraph 62) is not
sufficient basis on which to find that there has been no violation of
Article 3, because it does not take into account other aspects of the
applicant's conditions of detention such as his real, long-term
isolation in the prison hospital and the restrictions on his
correspondence, all of which, taken together, aggravated the
applicant's suffering due to his illness. The assessment of the
minimum threshold of severity required in order to fall within the
scope of Article 3 of the Convention is a matter of subjective
opinion. In our opinion, this threshold was attained.
