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Resolution ResDH(2005)55 relating to monitoring of prisoners’ correspondence and the right to an effective remedy

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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

Resolution ResDH(2005)55
concerning the judgments of the European Court of Human Rights relating to monitoring of prisoners’ correspondence and the right to an effective remedy

(case of Calogero Diana against Italy and 6 other cases - see table in Appendix II)

(Adopted by the Committee of Ministers on 5 July 2005
at the 933rd meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 46, paragraph 2 of the Convention as amended by Protocol No. 11 (referred to hereinafter as “the Convention”) ;

Having regard to the judgments of the European Court of Human Rights, in the Calogero Diana case and six other cases (see details in Appendix II) transmitted to the Committee of Ministers under former Article 54 and Article 44 and 46 of the Convention ;

Recalling that all these cases originated in applications lodged with either the European Commission of Human Rights under former Article 25 or the European Court of Human Rights under Article 34 against Italy and that the European Commission of Human Rights or the European Court of Human Rights declared admissible the applicants’ complaints relating to violations by Italy of Article 8 and/or Articles 6, paragraph 3b or 13 of the Convention on account of non-respect of prisoners’ right to respect for their correspondence and/or the lack of effective domestic remedies to challenge the monitoring of correspondence ;

Recalling that the European Court held :

- that there had been violations of Article 8 of the Convention in all these cases due to shortcomings in the Italian Law No. 354/1975 on the administration of prisons which allowed too much latitude with regard to the imposition of monitoring of correspondence and decisions on its duration and did not explicitly prohibit the monitoring of correspondence with the Convention organs ;

- that in two of these cases (Calogero Diana and Domenichini) there had been violations of Article 13 due to the lack of effective remedy against the decisions ordering monitoring of prisoners’ correspondence ;

- that in the Domenichini case there had been a violation of Article 6, paragraph 3b, on account of the monitoring of the applicant’s correspondence with his defence counsel which adversely affected the applicant’s defence rights ;

Recalling that, in the Natoli case, the Court held that the respondent state was to pay the applicant’s lawyers 4 000 000 Italian lira for costs and expenses, deducting from this sum 6,100 French francs which had been awarded as legal aid by the Council of Europe and that no just satisfaction was to be paid in the other cases ;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention, as amended by Protocol No. 11, which are also applicable by decision of the Committee of Ministers to cases under former Article 54 ;

Having invited the Government of Italy to inform it of the measures which had been taken in consequence of the European Court’s judgments, having regard to Italy’s obligation under Article 46, paragraph 1, of the Convention (former Article 53) to abide by them ;

Recalling its Interim Resolution ResDH(2001)178 of 5 December 2001 in which the Committee noted the legislative work begun in 1997 to give effect to the European Court’s judgments and expressed its satisfaction at the interim measures taken awaiting the finalisation of this work ;

Recalling that in that Interim Resolution, the Committee of Ministers also noted that the draft law could not be adopted before the change of legislature in April 2001 and consequently urged the authorities to resume the legislative work quickly so as to ensure that Italian law on monitoring prisoners’ correspondence, including the right to an effective remedy, fully complied with the Convention ;

Noting with concern the time taken before this legislative reform was brought to a conclusion, in April 2004, i.e. more than seven years from the Court’s judgments ;

Noting, however, with satisfaction the content of the reform as referred to by the Italian government and reproduced in Appendix I to this Resolution, including :

- the introduction into the legislation of clear grounds for imposing monitoring or restriction of prisoners’ correspondence and of time-limits for such measures ;

- legislative confirmation that correspondence with the Convention organs is exempt from monitoring ;

- administrative measures to ensure effective implementation of the new legislative provisions ;

- the extension of judicial review to cover the monitoring or restriction of prisoners’ correspondence ;

Having noted, however, that the effectiveness of this judicial review has recently been challenged in judgments of the Court and that the authorities are currently considering this new problem so as to ensure compliance with the Convention’s requirements (see Interim Resolution ResDH(2005)56 in Messina No. 2 against. Italy, judgment of 28 September 2000, Ganci against Italy, judgment of 30 October 2003 and Bifulco against Italy, judgment of 8 February 2005, final on 8 May 2005) and considering that examination of this issue is best pursued in the context of its control of the execution of these new judgments ;

Recalling, in this context, the Committee’s Declaration of 12 May 2004 on ensuring the long-term effectiveness of the European Court of Human Rights, not least by improving the execution of its judgments, and Recommendation Rec(2004)6 to member states on the improvement of domestic remedies ;

Having satisfied itself that the just satisfaction awarded in the Natoli case was paid to the applicant’s lawyers on 8 November 2001, that is, six months and twenty-nine days after the time-limit set but that the applicants waived their right to the minimal default interests involved ;

Declares that it has exercised its functions under former Article 54 and Article 46, paragraph 2, of the Convention in these cases.

Appendix I to Resolution ResDH(2005)55
Information provided by the Government of Italy
concerning the general measures taken to comply with the European Court’s judgments

Introduction

1. Following these judgments of the European Court, in 1997 the Italian government engaged in legislative and regulatory reforms to prevent new violations similar to those found by the Court in these cases. In Interim Resolution ResDH(2001)178 of 5 December 2001, the Committee of Ministers took stock of the measures taken or planned by Italy to date and urged Italy rapidly to adopt the legislative reform required to ensure that domestic law complied fully with the Convention. Since the adoption of the Interim Resolution the following general measures have been adopted :

I. New legal framework for monitoring of correspondence

a. General

2. In April 2004 the legislation on prison administration was amended by Law 95/2004 (in force as from 15 April 2004).

3. New Article 18-ter “Restrictions and control of correspondence”, added to Law 354/1975, has laid down clear substantive and time limitations to the monitoring or restriction of detainees’ correspondence. Such measures may henceforth be imposed only if necessary for the investigation or prevention of felonies, or for reasons of security or order in the prison (Article 18-ter, paragraph 1).

4. According to the new provision, the duration of these measures may not exceed six months but may subsequently be extended for periods of up to three months. The following restrictions or control may take place : (a) Restrictions of the correspondence by letter or telegrams and of receipt of press articles ; (b) Visas on all correspondence ; (c) Control of the content of envelopes received or sent without reading it.

5. These measures may be adopted by a reasoned judicial decree (as already provided in the previous text) at the request of a public prosecutor or following a proposal by the director of the penitentiary institution. This decree is issued by the supervising judge for persons detained pursuant to their conviction, or those already found guilty at first instance. The decree may be issued by the judge referred to in Article 279 of the Code of Criminal Procedure, for indicted persons, until the delivery of a judgment at first instance. If the judge is a member of the bench, the measure is adopted by the president of the court or of the assize court. The monitoring of correspondence may be delegated by these members of the judiciary to the director or a member of staff of the penitentiary institution designated by the director (Article 18-ter, paragraphs 3-4).

6. If, after a control visa, the judge deems that correspondence or newspapers should not be handed back or forwarded to the addressee, they should order their retention. In all these cases the detainee is informed accordingly (Article 18-ter, paragraph 5).

7. As regards the time taken to execute these judgments, the Government wishes to indicate that the question of ensuring rapid responses to violations found by the European Court is currently being studied, in particular by the Italian Parliament, and has so far led to the adoption of a resolution and the presentation of a Bill on the follow-up to judgments of the European Court.

b. Exemption from monitoring of correspondence with defence counsel and the European Convention organs

8. Article 18-ter, paragraph 2, of the new Law confirms Article 38, paragraph 11, of presidential decree 230/2000, which exempted from monitoring or restriction the detainees’ correspondence, inter alia, with the European Convention organs.

9. By express reference to Article 103 of the Code of Criminal Procedure, it also confirmed the exemption from monitoring of the correspondence with their defence counsel, provided that the correspondence is recognisable as such. This exemption, however, was already enshrined in Article 103 of the Code, in force since 1989, but was not effectively applied in practice, resulting in violations of the Convention (violations of Article 8 in Natoli and Madonia). The Italian authorities therefore decided to adopt additional administrative measures to ensure that the newly adopted provisions were effectively implemented in practice (see summary of Ministry of Justice circulars below).

c. Implementation of the legislation by Ministry of Justice circulars

10. On 1 July 2004 the Prison Administration Department of the Ministry of Justice issued a circular entitled “Visa controlling detainees’ correspondence - Law No 95 of 8 April 2004”. This circular stressed that the main object of Article 18-ter of Law 95/2004 is to safeguard detainees’ privacy, as well as to guarantee the efficient administration and organisation of prisons where order, security and discipline are necessary.

Moreover, the circular laid down three basic rules regarding monitoring of correspondence :

1) The envelope or cover of the correspondence should be examined with the aid of instruments or trained dogs ;

2) If a letter or parcel raises suspicions relating to the order or security of the prison, it should be set aside while authorisation is awaited for further inspection from the competent authority ;

3) Such correspondence should only be opened in the presence of the detainee (as prescribed by
Article 18-ter, paragraphs 1c and 7 of Law 95/2004) to whom it should be returned if it is cleared after inspection.

11. On 3 May 2005 the Prison Administration Department of the Ministry of Justice issued a second circular, entitled “Visa controlling correspondence - European Convention on Human Rights”. This circular, aimed at bringing practice relating to correspondence monitoring fully into line with the judgments of the European Court of Human Rights, laid down or reiterated the following rules among others :

(a) the prison officer responsible for monitoring correspondence “on arrival” or “on departure” shall affix to the correspondence not only a stamp but also the date of control, so that the time of original control may be identified at any time ;

(b) all prison directors should keep their monitoring register books updated, as prescribed by the circular of 14 March 1994 ;

(c) as regards detainees subject to the special regime of Article 41 bis of Law 354/1975, the application to the judge for time extension of the decree authorising censorship of correspondence after the expiry of the initial six months, should be accompanied by the phrase “for the three successive months”, excluding, thus, any further continuation of the censorship. This will clarify the difference of duration between the regime of Article 41 bis and the censorship of correspondence under Article 18-ter.

12. In addition, this circular expressly referred to the European Court’s judgments, including the one in the Domenichini case where a violation of Article 6, paragraph 3(b), was found on account of monitoring the applicant’s correspondence with his defence counsel. The circular drew the competent authorities’ attention to the fact that the modalities and limits of correspondence monitoring are now clearly set by Article 18-ter of Law 354/1975, introduced by Law 95/2004, in accordance, inter alia, with this judgment of the European Court. The circular reiterated that detainees’ correspondence addressed to international organisations for the protection of human rights, including the European Court of Human Rights, is exempt from monitoring.

II. Ensuring the existence of effective domestic remedies

13. In the Calogero Diana and Domenichini judgments, the impugned restrictions or monitoring of correspondence were already imposed by judicial authorities acting, however, in an administrative capacity (see paragraphs 12 and 42 of the Domenichini judgment) and the violation of Article 13 of the Convention was due to the impossibility of challenging the decisions before an independent authority. Following the Court’s judgments, the government has engaged in legislative reform to set up, inter alia, domestic remedies to challenge such decisions, in line with the requirements of Article 13. In 1999 the government presented to Parliament a Bill amending Articles 18 and 35 of Law 354/1975 both circumscribing the power to monitor prisoners’ correspondence and introducing domestic remedies. However, these amendments were not adopted due to the change of legislature in April 2001.

14. The Law 95/2004 mentioned above now explicitly allows judicial review of decisions imposing monitoring or restriction on prisoners’ correspondence (new Art. 18-ter, paragraph 6, of Law 354/1975, in conjunction with pre-existing Article 14-ter of Law 354/1975). The complaints, which have no suspensive effect, may be lodged within a time-limit of 10 days from notification of the measure. The supervising court should issue an order within 10 days from receipt of the complaint. The judge responsible for issuing the impugned decision regarding monitoring of correspondence may not sit on the bench deciding on the complaint.

15. Examples of domestic courts granting prisoners’ complaints and annulling restrictions on their correspondence by reference to the new law and to the European Court’s judgments have been presented to the Committee of Ministers. As the most recent example, the Sentence Execution Court of Turin quashed a decision extending the monitoring of a prisoner’s correspondence on the ground that the impugned decision lacked detailed reasoning as required by law, as well as by “the established case-law of the European Court of Human Rights” (decision 1900/05 of 11 May 2005).

16. The government finds that this decision is indicative of the increasing willingness of Italian courts to implement domestic law in the light of the Convention’s requirements as set out in the European Court’s judgments. The government strongly encourages these developments, which effectively contribute to fulfilling Italy’s obligation to abide by the European Court’s judgments.

17. While acknowledging that some problems still exist regarding length of proceedings, the government considers that the new remedy will prevent new violations of Article 13 of the Convention similar to those found in the present cases. In this context, the government will not fail to take into account the Committee of Ministers’ Recommendation Rec(2004)6 on the improvement of domestic remedies.

Appendix II to Resolution ResDH(2005)55
Details concerning applications, judgments and violations found by the European Court

Case - Application - Date of judgment 
Diana Calogero - 15211/89 - 15/11/1996 
Domenichini Massimo - 15943/90 - 15/11/1996 
Rinzivillo Antonio - 31543/96 - 21/12/2000 ; final on 21/03/2001 
 Natoli Vincenzo - 26161/95 - 09/01/2001 ; 
 Di Giovine Emilio - 39920/98 - 26/07/2001 ; final on 26/10/2001 
 Madonia Antonio - 55927/00 - 06/07/2001 ; final on 06/10/2001 
 Messina Antonio (No 3) - 33993/96 - 24/10/2002 ; final on 21/05/2003