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Resolution ResDH(2001)178 prisoners’ correspondence in Italy

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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Interim Resolution ResDH(2001)178
concerning monitoring of prisoners’ correspondence in Italy - measures of a general character
(Adopted by the Committee of Ministers on 5 December 2001
at the 775th meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to the judgments delivered by the European Court of Human Rights in the Diana Calogero and Domenichini cases on 15 November 1996, in the Labita case on 6 April 2000, in the Messina Antonio case on 28 September 2000 (final on 28 December 2000), in the Rinzivillo case on 21 December 2000 (final on 21 March 2001) and in the Natoli case on 9 January 2001 ;

Recalling that in these cases the Court notably found violations of Article 8 and, in some cases, of Article 13 of the Convention on account of the lack of clarity of the Italian law on monitoring of prisoners’ correspondence (law No. 354/75), which leaves the public authorities too much discretion, particularly in respect of the duration of monitoring measures and the reasons justifying such measures, authorises the monitoring of correspondence with the organs of the European Convention on Human Rights and provides for no effective remedy against decisions ordering the monitoring of correspondence ;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention, which also apply to cases brought before the Committee of Ministers prior to the entry into force of Protocol No. 11 to the Convention ;

Having invited the government of the respondent state to inform it of the measures taken subsequent to the aforesaid judgments, bearing in mind Italy’s obligation to abide by them under Article 46, paragraph 1, of the Convention ;

Considering that the High Contracting Parties are required rapidly to take measures necessary to this end, in particular by preventing further violations of the Convention similar to those established by the Court in its judgments ;

Considering that the Respondent Government have given the Committee of Ministers the information appended to the present resolution with regard to the measures taken so far for this purpose ;

Notes with satisfaction the interim measures taken by the Government in order to prevent, as far as possible, new violations of the Convention awaiting the legislative amendments, the judgment of the Constitutional Court of 8-11 February 1999 confirming the necessity to change the legislation and the Presidential Decree of 30 June 2000 prohibiting the censorship of all correspondence addressed by a detainee to international organisations working for the protection of human rights ;

Notes, however, that, in spite of the time that has lapsed, the shortcomings with regard to the clarity of the Italian law on the monitoring of prisoners’ correspondence, including the absence of effective remedies, have still not been remedied as the draft law prepared to this effect could not be adopted before the change of the legislature in April 2001 ;

Notes nevertheless with satisfaction that the new Italian Government is preparing a new draft law and has undertaken to submit it rapidly to Parliament,

Urges the Italian authorities rapidly to adopt the legislative reform required to ensure fully that Italian law complies with the Convention on the points raised by the Court ;

Decides to resume examination of these cases in the context of measures of a general character once the process of amending law No. 354/75 has been completed or, at the latest, at its first meeting in 2003.

Appendix to Interim Resolution ResDH(2001)178

Information supplied by the Italian Government during the examination by the Committee of Ministers of the measures of a general character to be adopted in cases concerning the monitoring of prisoners’ correspondence

Considering that in the light of the nature of the violations found by the Court in the judgments here in question, these violations could not be remedied through a development of the case-law of the Italian courts, the Italian Government engaged in 1997 a legislative reform. This reform aims at bringing law No 354/75 on prison administration in line with the Convention so as to solve the problem of the absence of a legal basis for the control of prisoners’ correspondence in Italy and that of the absence of effective remedies against the control carried out.

The absence of remedies has, subsequently, also been held to be a violation of the Constitution of Italy by the Italian Constitutional Court in a judgment of 8-11 February 1999, No. 26, notably because of the inviolable character of human rights.

In 1999 the Government presented to Parliament a Bill (No. 4172/S) amending Articles 18 and 35 of law No. 354/75 in order to circumscribe the power of control of prisoner’s correspondence and to introduce effective remedies. These amendments could, however, not be adopted before the change of legislature in April 2001.

In order rapidly to ensure, in this situation, that Italy will respect its obligation under Article 46, paragraph 1, of the Convention, the new Government undertakes to submit a new Bill to Parliament as soon as possible. A draft bill is already prepared and is presently being examined by the Legislative Office of the Ministry of Justice.

In this context, the Government finds it important to point out that, in parallel with these legislative initiatives, interim measures were taken to inform the competent judicial and administrative authorities of the requirements of Article 8 of the Convention, as established in the case-law of the European Court of Human Rights, concerning the monitoring of prisoners’ correspondence with a view to remedying at least in part the shortcomings in Italian law.

Thus, on 31 March 1999, the Penal Affairs Department of the Ministry of Justice adopted a circular letter to prison directors stipulating, inter alia, that requests for authorisation to monitor correspondence must be made for six-month periods, subject to renewal on request.

In addition, the Directorate of Criminal Affairs of the Ministry of Justice sent out a circular letter to the courts dated 26 April 1999 (No. 575), drawing attention to the importance of the judicial authorities responsible for the monitoring of prisoners’ correspondence taking into account the principles laid down by the European Court of Human Rights in order to avoid further findings of violations against Italy. Particular attention was called to the need to provide adequate reasons when authorising the monitoring of correspondence and to ensure that measures be limited in time, in order to guarantee regular review of the need for monitoring.

Both of the above circulars also banned the censorship of correspondence sent by prisoners to the Convention organs, but this particular problem was subsequently resolved at the legislative level by the new regulations governing prison establishments which came into force on 6 September 2000 (Presidential decree - D.P.R. - No. 230 of 30 June 2000, published in Official Gazette No. 131/L on 22 August 2000). Article 38§11 of the new regulations henceforth prohibits all censorship of correspondence sent by prisoners to international organisations working for the protection of human rights.

In order to facilitate the reforms necessary and the taking into account of the Court’s judgments in the practice of the Italian courts and administrative authorities, the “law” part of the Domenichini judgment was translated and published already in 1997 notably in the Italian legal journal Rivista internazionale dei diritti dell’uomo (1997, vol. II, p. 119-124) and the Labita and Messina judgments were translated and published respectively in editions 1-2 and 6, 2000, of Documenti Giustizia, a legal journal published by the Ministry of Justice (also accessible on the Internet at the following address :
www.ipzs.it/Pubblicazioni_ministeri/Min_giustizia/Documenti_giustizia/ ).

The Italian Government considers that, in view of these measures and decisions, Italy has partially and provisionally, complied with its obligations under Article 46, paragraph 2, of the Convention, and invites the Committee of Ministers to resume examination of these questions as soon as the process of amending law No. 354/75 has been completed or, at the latest, at the first meeting of the Committee of Ministers in 2003.