Calogero Diana v. Italy (56/1995/562/648) 15 November 1996: monitoring of prisoner's correspondence; interference by a public authority; Possibility of recourse to administrative courts; effective remedy.

SUMMARY

Italy - monitoring of prisoner's correspondence, including with his lawyer, and relevant remedies

II. Article 8 of the Convention

Not contested that there had been "interference by a public authority" with exercise of applicant's right to respect for his correspondence.

A. "In accordance with the law"

Recapitulation of Court's case-law. In the instant case Law no. 354 of 26 July 1975 left the authorities too much latitude, in particular going no further than identifying the category of persons whose correspondence could be censored and the competent court. It did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities, so that the applicant had not enjoyed the minimum degree of protection to which citizens were entitled under the rule of law in a democratic society.

Conclusion: violation (unanimously).

IV. Article 13 of the Convention

Application to judge responsible for execution of sentences: could not be regarded as an effective remedy for the purposes of Article 13.

Allegedly judicial character of the decisions whereby monitoring of the correspondence was ordered, stemming from nature of authority empowered to take them: did not stand up to scrutiny either.

Possibility of recourse to administrative courts to challenge measures in question: Court of Cassation had held that Italian law did not provide any remedies in respect of the disputed decisions, and no Regional Administrative Court appeared to have delivered a judgment on the subject.

Conclusion: dismissal, after examination of merits, of the Government's preliminary objection and violation (unanimously).

I. Circumstances of the case

7. On 11 September 1970 Mr Diana was arrested on suspicion of having taken part in the activities of the terrorist organisation known as the "Red Brigades" and immediately taken into custody. He was convicted on eleven occasions between February 1971 and January 1987, the heaviest sentences he received being those imposed in the Novara Assize Court on 5 February 1981 (twenty-seven years' imprisonment and a fine of 200,000 Italian lire) and by the Milan Assize Court of Appeal on 28 November 1985 (life imprisonment).

Since 11 September 1970 the applicant, pursuant to an aggregation of sentences ordered on 17 June 1992 by the Principal Public Prosecutor of Cagliari, has been serving the sentence of life imprisonment and has at the same time been, among other things, permanently disqualified from holding public office, stripped of his civic rights for the duration of his prison sentence and removed from parental control.

PROCEEDINGS BEFORE THE COMMISSION

22. Mr Diana applied to the Commission on 30 May 1989. He complained that (1) there had been infringements of his right to respect for his correspondence (Article 8 of the Convention); (2) there had been a breach of his right to defend himself and to have all necessary facilities for the preparation of his defence (Article 6 3 (b)); (3) he had not obtained a decision by an impartial tribunal on his application to have the censorship of his correspondence ended (Article 6 1); and (4) there were no effective remedies in respect of the alleged breaches of the Convention (Article 13).

23. On 5 July 1994 the Commission declared the second and fourth complaints admissible and also the first one in so far as it concerned the monitoring of the applicant's correspondence with his lawyer pursuant to the decisions taken by the Macerata judge responsible for the execution of sentences (see paragraph 10 above); on the other hand, it declared the third complaint and the remainder of the first one inadmissible. In its report of 28 February 1995 (Article 31), it expressed the unanimous opinion that there had been a breach of Article 8, that the complaint relating to the rights of the defence raised no separate issue under Article 6 3 and that there had been a breach of Article 13.

AS TO THE LAW

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

26. The applicant submitted that the inspection of the letters in question had infringed Article 8 of the Convention, which provides:

"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 national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

27. The Government disputed that contention, whereas the Commission accepted it.

28. There was, quite obviously, "interference by a public authority" with the exercise of the applicant's right, guaranteed in paragraph 1 of Article 8, to respect for his correspondence - in this instance, with his lawyer; and that was not contested. Such an interference will contravene Article 8 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 the following judgments: Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, 84; Kruslin v. France, 24 April 1990, Series A no. 176-A, p. 20, 26; Huvig v. France, 24 April 1990, Series A no. 176-B, p. 52, 25; and Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, 34).

A. "In accordance with the law"

29. The Government submitted that section 18 of Law no. 354 of 26 July 1975 ("Law no. 354"), which provides for the possibility of monitoring prisoners' correspondence, was in conformity with the Court's case-law; the power to order such a measure was vested in the judiciary - which was independent and impartial - and there was a specific obligation to give reasons for the decision, so that arbitrariness was excluded.

30. The applicant rejected that argument, maintaining that while it was true that the censorship of correspondence was in accordance with domestic law, the provision in question did not specify the circumstances in which it could be ordered or within what limits.

31. The Commission, even though it doubted that the wording of Law no. 354 satisfied the requirements of paragraph 2 of Article 8 of the Convention, did not consider it necessary to determine the issue in its report as at all events the disputed measures were, in its opinion, contrary to Article 8 in other respects.

32. The Court reiterates that while a law which confers a discretion must indicate the scope of that discretion, it is impossible to attain absolute certainty in the framing of the law, and the likely outcome of any search for certainty would be excessive rigidity (see, among many other authorities, the Silver and Others judgment previously cited, p. 33, 88). In this instance, however, Law no. 354 leaves the authorities too much latitude. In particular, it goes no further than identifying the category of persons whose correspondence may be censored and the competent court, without saying anything about the length of the measure or the reasons that may warrant it. The gaps in section 18 of the Law weigh in favour of rejecting the Government's argument.

33. In sum, the Italian law does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities, so that Mr Diana did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see the Kruslin judgment previously cited, pp. 24 and 25, 36). There has therefore been a breach of Article 8.

IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

39. The applicant complained that in Italian law there was no effective remedy in respect of the decisions whereby the judge responsible for the execution of sentences ordered that his correspondence should be censored. He alleged a breach of Article 13 of the Convention, which 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."

40. The Government considered that this complaint was unfounded. They relied, in the first instance, on the fact that it was possible to apply to the judge responsible for the execution of sentences to reconsider his decision and they drew attention to the judicial nature of the censorship measure provided for in section 18 of Law no. 354, under which the power to order censorship of a prisoner's correspondence was reserved to the judiciary. In removing such a sensitive area from the competence of the administrative authorities, the Italian legislature's purpose had been to provide the safeguards of independence and impartiality. The Commission's unduly formal approach to the subject of the effectiveness of the right guaranteed by Article 13, which did not require the "national authority" to belong to the judiciary, misunderstood the import of the Law in question.

If that argument was not accepted, the censorship measure had to be classified as an "administrative decision taken by" the judge responsible for the execution of sentences "in performance of duties inherent in the supervision of prisons". By interpreting the case-law of the Court of Cassation, which ruled out any appeal on points of law or to a criminal judicial authority other than the judge responsible for the execution of sentences, the Government maintained that it was possible to have recourse to the Regional Administrative Courts to challenge the measures in question.

41. In the Court's estimation, the possibility of applying to the judge responsible for the execution of sentences cannot be regarded as an effective remedy for the purposes of Article 13, as he is required to reconsider the merits of his own decision, taken moreover without any adversarial proceedings.

The allegedly judicial nature of the disputed decisions, stemming from the nature of the authority empowered to take them, does not stand up to scrutiny either. The judge responsible for the execution of sentences at Macerata, in reply to an application from Mr Diana's lawyer for the censorship order to be rescinded, considered it necessary to submit a question concerning the interpretation of Law no. 354 to the Prison Service - an administrative authority, therefore - relating to whether the monitoring of correspondence between a prisoner and his lawyer was lawful (see paragraph 13 above).

As to the third submission, two points must be noted. Firstly, the Court of Cassation has held that Italian law does not provide any remedies in respect of decisions whereby prisoners' correspondence is ordered to be monitored. Secondly, no Regional Administrative Court would appear hitherto to have delivered a judgment on the subject.

The Court accordingly dismisses the Government's preliminary objection and holds that there has been a breach of Article 13.

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