EUROPEAN COURT OF HUMAN RIGHTS

Domenichini v. Italy

Application no. 15943/90

15 November 1996

(Excerpts)

AS TO THE LAW

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION (art. 8)

26. The applicant submitted that the inspection of the letters in question had infringed Article 8 of the Convention (art. 8), 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 (art. 8-1), to respect for his correspondence - in this instance, with his lawyers; and that was not contested. Such an interference will contravene Article 8 (art. 8) unless it is "in accordance with the law", pursues one or more of the legitimate aims referred to in paragraph 2 (art. 8-2) 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, para. 84; Kruslin v. France, 24 April 1990, Series A no. 176-A, p. 20, para. 26; Huvig v. France, 24 April 1990, Series A no. 176-B, p. 52, para. 25; and Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, para. 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 (art. 8-2), 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 (art. 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, para. 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 Domenichini 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, para. 36). There has therefore been a breach of Article 8 (art. 8).

B. Purpose and necessity of the interference

34. Having regard to the foregoing conclusion, the Court does not consider it necessary in the instant case to ascertain whether the other requirements of paragraph 2 of Article 8 (art. 8-2) were complied with.

FOR THESE REASONS, THE COURT UNANIMOUSLY

2. Holds that there has been a breach of Article 8 of the Convention (art. 8);