Print EUROPEAN COURT OF HUMAN RIGHTS
Labita v. Italy
Application no. 26772/95
6 April 2000
(Excerpts)
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
B. The ill-treatment to which the applicant alleges he was subjected in Pianosa Prison
1. The impugned treatment
27. The applicant was held at Termini Imerese Prison until 20 July 1992, when he was transferred to Pianosa Prison under urgent measures taken by the Italian Government against the Mafia following the killing by that organisation of two senior judges. Pianosa Prison had previously held approximately 100 prisoners who enjoyed a less strict regime, which included the right to work on the island outside the prison. The high‑security prisoners were held together in the “Agrippa” wing. A large number of prison warders from other penal institutions were also transferred to Pianosa Prison.
The applicant was held at Pianosa without interruption until 29 January 1993. Subsequently, he was regularly transferred for short periods to enable him to be present at the various stages of the proceedings against him.
28. The medical register kept by Pianosa Prison shows that the applicant was in good health on arrival.
29. He alleged that he was ill-treated in a number of ways, detailed below, mainly between July and September 1992 (the situation subsequently improved).
(i) He was regularly slapped and had sustained an injury to his right thumb. His testicles had been squeezed, a practice which the applicant said was systematically inflicted on all prisoners.
(ii) On one occasion the applicant was beaten and his jumper was torn. He protested. Two hours later a warder ordered him to shut up, insulted and then struck him, damaging the applicant's glasses and a false tooth.
(iii) He was manhandled on other occasions. Prisoners were allowed to put cleaning products in the corridors. Sometimes the prison warders caused the products to spill on the floor and mixed them with water, thus making the floor slippery. Prisoners were then forced to run along the corridors between two rows of warders. Those who fell were hit by warders and beaten with batons.
(iv) He was often subjected to body searches when showering.
(v) He had to wait very lengthy periods to see a doctor and remained handcuffed during medical examinations.
(vi) The warders warned prisoners that they would be subjected to reprisals if they told their lawyers or other prisoners about the treatment they were receiving.
(vii) In the presence of warders prisoners were required to bow their heads, keep their eyes to the ground, show respect, remain silent and stand to attention.
30. Lastly, the applicant said that transfers of prisoners from the prison to the courts for hearings took place in inhuman conditions: in the hold of the vessel, without air, light or food and with very poor hygiene.
2. The medical certificates
31. The Pianosa Prison medical register shows that on 9 September 1992 the applicant complained of a problem with a false tooth and the prison doctor therefore referred him for examination by a dentist. In April 1993 a further request was made for an appointment with a dentist to have a loose false tooth cemented.
32. On 10 August 1993 the Pianosa Prison medical service requested x‑rays and an appointment with an orthopaedist following a complaint by the applicant of pain in his knees. On 22 September 1993, following tests, an orthopaedist noted problems – the medical record does not reveal their exact nature – in the applicant's knees.
33. On 17 March 1994 the dentist noted that the false tooth had completely broken and needed repair.
34. A medical report of 24 March 1995 notes calcification in the knee joint. The applicant had a scan on 3 April 1996 that revealed two small wounds resulting from traumatic injury in the upper, outer part of the knee.
35. A medical certificate dated 20 March 1996 refers to psychological disorders (asthenia, state of confusion, depression) that had started three years earlier.
3. Proceedings instituted by the applicant
36. On 2 October 1993, at a preliminary hearing before the Trapani investigating judge, the applicant and another prisoner alleged that they had suffered forms of ill-treatment such as “torture, humiliation and cruelty” in Pianosa Prison until October 1992. The applicant said in particular that he had suffered a broken finger and broken teeth. Even though the position had improved after October 1992, he complained that the overall treatment to which he had been subjected and which had been imposed on the basis of, inter alia, section 41 bis of Law no. 354 of 1975, was inhuman and emotionally draining.
37. The investigating judge informed the Livorno public prosecutor's office of the above; the public prosecutor's office opened an official inquiry (no. 629/93) and on 12 November 1993 instructed the Portoferraio carabinieri to question the applicant about the nature and duration of the ill‑treatment he had allegedly suffered and to obtain from him any information he had that would help to identify those responsible. It also requested the applicant's medical records.
38. The applicant was interviewed on 5 January 1994 by the Portoferraio carabinieri. He said that from the moment he arrived at Pianosa he had been subjected to “hidings, torture, acts of cruelty and psychological torture” by the warders. In particular, they would hit him in the back with their hands. When he left his cell for the exercise yard he was made to run along a corridor that had been made slippery. The warders formed a line the length of the corridor and delivered kicks, punches and baton blows. On one occasion he had protested that the warders had torn his jumper as they struck him. One of them had told him to shut up, insulted him and then hit him, damaging his glasses and a false tooth. Prisoners were violently beaten every time they left their cells. He added, however, that he was unable to recognise the warders responsible because the prisoners were obliged to keep their heads bowed in their presence. He stated lastly that the beatings had ceased in October 1992.
39. On 7 January 1994 the carabinieri sent the interview record and the applicant's medical file to the Livorno public prosecutor's office. They said that they would forward a list of the warders who had worked at Pianosa Prison at the material time later.
40. On 9 March 1995 the applicant was interviewed by the Trapani carabinieri on the instructions of the Livorno public prosecutor's office. He was shown photocopies of photographs of 262 prison warders who had worked at Pianosa Prison. The applicant said that he was unable to identify the person who had ill-treated him, but commented that the photographs had been taken before the relevant period and were only photocopies. He added that he would have had no difficulty in identifying the warder concerned had he been able to see him in person.
41. On 18 March 1995 the Livorno public prosecutor's office applied to have the complaint filed away without further action on the ground that the offenders could not be identified (perché ignoti gli autori del reato). The Livorno investigating judge made an order to that effect on 1 April 1995.
4. The report of the Livorno judge responsible for the execution of sentences on conditions at Pianosa Prison
42. On 5 September 1992 the Livorno judge responsible for the execution of sentences had sent a report to the Minister of Justice and other relevant prison and administrative authorities on prison conditions in Pianosa.
43. The report followed an initial inspection of the prison in August 1992 in which it was noted in particular that there had been repeated violations of prisoners' rights and a number of incidents of ill-treatment, both in the special “Agrippa” wing and in the ordinary wings. By way of example, it was noted in the report that:
(i) hygiene was appalling;
(ii) prisoners' correspondence, though permitted subject to censorship, was totally blocked and telegrams were delivered to prisoners only after substantial delays;
(iii) prisoners were forced to run to the exercise yard, and probably beaten with batons on the legs;
(iv) prisoners were sometimes beaten with batons and subjected to other forms of ill-treatment (for example, one prisoner was allegedly forced to undress completely and to do floor exercises (flessioni) before being subjected to a rectal search, which, according to the judge responsible for the execution of sentences, had been wholly unnecessary as the prisoner had just finished doing work in the presence of other warders; the prisoner concerned, who was slapped while getting dressed, had then consulted the prison doctor; that night, three warders had subjected him to a beating in his cell);
(v) apparently, other similar incidents had taken place subsequently, although the situation appeared to have improved more recently, probably as a result of action taken against prison warders.
44. After information and press reports began to circulate that prisoners in Pianosa Prison were being subjected to violence, the Livorno public prosecutor spent a day on the island and informed the press that he had found nothing to support the allegations.
45. Further, on 30 July 1992 inspectors for the Tuscany prison services had informed the Prison Administration Department at the Ministry of Justice that, according to information from reliable sources, there had been serious incidents of ill-treatment of prisoners at Pianosa Prison. In particular, the report referred to one incident in which a handicapped prisoner had been brought into the prison in a wheelbarrow to the jeers of the warders and another in which a prisoner had been forced to kneel before a candle.
46. In a note to the Minister's principal private secretary dated 12 October 1992, the Director-General of the Prison Administration Department at the Ministry of Justice explained that the conditions referred to by the Livorno judge responsible for the execution of sentences were due essentially to the fact that fifty-five prisoners had been transferred to Pianosa as a matter of urgency in the night of 19 to 20 July 1992. That had caused practical problems which could to a large extent explain the inconvenience that had been noted. In addition, additional problems had been caused by building works in the prison.
47. On 28 October 1992 the Director-General forwarded the conclusions of a group of experts appointed by the department to the principal private secretary to the Minister and to the public prosecutor's office. On the basis of the information supplied by prisoners questioned in the prison, the experts had found that the allegations of ill-treatment were wholly unfounded apart from the incident concerning the moving of a handicapped prisoner in a wheelbarrow, which, however, had resulted from a lack of wheelchairs in the prison.
48. Following the report by the judge responsible for the execution of sentences, an inquiry was nonetheless started and the information obtained was sent to the Livorno public prosecutor's office. Only two warders had been identified; they were suspected of offences of causing bodily harm (Article 582 of the Criminal Code) and of abuse of authority over persons who had been arrested or detained (Article 608 of the Criminal Code).
49. The public prosecutor's office sought an order for both charges to be dropped, the former because no complaint had been lodged and the latter because it was time-barred. The application was allowed with regard to the offence of causing bodily harm, but dismissed with regard to the other charge and on 20 December 1996 the investigating judge sought additional information. That inquiry is believed still to be under way.
50. In a note of 12 December 1996 – which was appended to the Government's observations in the proceedings before the Commission – the President of the court responsible for the execution of sentences in Florence said that the incidents that had taken place in Pianosa Prison had been ordered or tolerated by the government of the day. He also considered that the applicant's allegations concerning the conditions during transfers were entirely credible and that transfers of prisoners to Pianosa Prison were carried out using questionable and unjustified methods, the real purpose of which was to intimidate prisoners. He further noted that the high-security wing of Pianosa Prison had been staffed by warders from other prisons who had not been subjected to any selection process and had been given “carte blanche”. The result, according to the President of the court, was that management of that wing of the prison had initially been characterised by abuse and irregularities.
C. Censorship of the applicant's correspondence
1. Application of section 41 bis of the Prison Administration Act
51. On 20 July 1992 the Minister of Justice issued an order subjecting the applicant to the special prison regime laid down in section 41 bis of Law no. 354 of 1975 until 20 July 1993. The Minister considered that the measure was necessary in particular because of serious public-order and safety considerations following an escalation of an aggressive and ruthless campaign by the Mafia, which had been responsible for the recent assassinations of three judges and eight policemen and for car-bomb attacks in large Italian cities. That situation made it necessary to sever connections between certain prisoners and their milieu. The applicant was subject to the measure concerned because he was of bad character and dangerous; those factors suggested that he had maintained contact with the criminal milieu which he would be able to use to issue instructions or establish links with the outside world that could in turn lead to a breakdown of public order or jeopardise security in prison institutions. In addition, it was a reasonable assumption that prisoners such as the applicant would recruit other prisoners or dominate and humiliate them in prison, just as they did in criminal organisations.
52. The order represented a derogation from the Prison Administration Act and imposed the following restrictions:
(i) a ban on the use of the telephone;
(ii) a ban on all association or correspondence with other prisoners;
(iii) censorship of all inward and outward correspondence;
(iv) a ban on meetings with third parties;
(v) restrictions on visits from members of the family (to one hour monthly);
(vi) a ban on receiving or sending sums of money over a set amount;
(vii) a ban on receiving parcels (other than those containing linen) from the outside;
(viii) a ban on organising cultural, recreational or sporting activities;
(ix) a ban on voting or standing in elections for prisoner representatives;
(x) a ban on taking part in arts-and-crafts activities;
(xi) a ban on buying food that needed cooking;
(xii) a ban on spending more than two hours outdoors.
53. These measures were subsequently extended for successive six‑monthly periods until 31 January 1995.
2. Censorship of the applicant's correspondence
54. On 21 April 1992 the Trapani District Court decided, without giving specific reasons, to subject the applicant's correspondence to censorship. However, his correspondence was not monitored while he was in Termini Imerese Prison.
55. An order was also made for censorship of the applicant's correspondence by the Minister of Justice on 20 July 1992 (see paragraph 52 above).
56. The following letters were censored:
(i) the applicant's letter of 21 October 1992 to his wife (delivery of this letter was delayed by the Pianosa Prison as the prison authorities, considering the content to be suspect, first sent it to the judicial authorities);
(ii) a letter of 7 May 1993 sent to the applicant by his first lawyer (stamped by the Pianosa Prison censors);
(iii) a letter of 28 February 1993 sent by the applicant to his family (stamped by the Termini Imerese Prison censors);
(iv) a letter sent by the applicant to his wife on 2 March 1993 enclosing a certificate (the Termini Imerese Prison authorities had intercepted the letter and sent it to the Prison Administration Department at the Ministry of Justice with a request for permission to remit the letter to the applicant; as no reply was received, the letter was never remitted to him);
(v) a letter from the applicant to his family posted on 7 May 1993 (stamped by the Pianosa Prison censors).
57. On 15 September 1993, as a result of a Constitutional Court decision (no. 349 of 28 July 1993 – see paragraph 102 below), the Minister of Justice rescinded the measure regarding censorship of correspondence that had been issued in orders made under section 41 bis.
58. The applicant's correspondence nonetheless continued to be subject to censorship as a result of the Trapani District Court's decision of 21 April 1992.
59. On 21 February 1994 the Trapani District Court ordered rescission of that order, but the applicant's correspondence continued to be censored notwithstanding.
60. On 10 June 1994 the applicant reverted to the ordinary prison regime; the change entailed among other things an end to censorship. However, at least one letter (sent to the applicant by his wife on 28 July 1994) was nonetheless censored by the Pianosa Prison authorities.
61. On 13 August 1994, at the request of the Pianosa Prison authorities, an order was made by the President of the Criminal Division of the Trapani District Court, renewing censorship of the applicant's correspondence. The following letters were censored:
(i) a letter of 24 August 1994 sent to the applicant by his second lawyer (stamped by Pianosa Prison);
(ii) letters sent to the applicant by his wife on 18, 21, 29 and 30 August 1994 containing two photographs of the applicant's children (and each bearing the Pianosa Prison censors' stamp);
(iii) a letter of 31 August 1994 from the applicant to his family (stamped by Pianosa Prison);
(iv) a letter of 1 September 1994 sent to the applicant by his children (stamped by Pianosa Prison);
(v) a letter of 16 October 1994 sent to the applicant by his granddaughter (stamp illegible);
(vi) letters of 18 and 20 October 1994 sent to the applicant by his wife (stamped by Termini Imerese Prison);
(vii) a letter of 20 October 1994 apparently sent to the applicant by members of his family (stamped by Termini Imerese Prison);
(viii) an undated letter sent to the applicant by his granddaughter (stamped by Pianosa Prison).
62. As to the two letters sent to the applicant by his lawyers on 7 May 1993 and 24 August 1994, the Pianosa Prison authorities said that they could not be regarded as being correspondence with defence counsel for the purposes of Article 35 of the transitional provisions of the new Code of Criminal of Procedure (see paragraph 97 below).
II. Relevant domestic law and practice
C. Provisions relevant to the censorship of correspondence
94. Section 18 of Law no. 354 of 26 July 1975, as amended by section 2 of Law no. 1 of 12 January 1977, provides that power to order censorship of prisoners' correspondence vests in the judge dealing with the case – whether the investigating judge or the trial judge – until the decision at first instance and thereafter in the judge responsible for the execution of sentences. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision does not, however, specify the circumstances in which such orders may be made.
95. In practice, censorship entails all the prisoner's mail being intercepted and read by either the judge that made the order or the prison governor or prison staff designated by him; censored mail is stamped to show that it has been inspected (see also Article 36 of the decree implementing Law no. 354 referred to above – Presidential Decree no. 431 of 29 April 1976). Censorship cannot extend to deleting words or sentences, but the judge may order that one or more letters shall not be delivered; in such cases, the prisoner must be informed immediately. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judge.
96. Article 103 CCP forbids the seizure or any form of censorship of correspondence between a prisoner and his lawyer, provided that the correspondence is identifiable as such and unless the judge has well‑founded reasons to believe that the correspondence constitutes the substance of the offence.
97. Similarly, by Article 35 of the transitional provisions of the new Code of Criminal Procedure the rules on the censorship of a prisoner's correspondence laid down in Law no. 354 and Presidential Decree no. 431 do not apply to correspondence between a prisoner and his lawyer. However, for such correspondence to escape censorship, the envelope must be marked with the identity of both the accused and his lawyer, the fact that the lawyer is acting in that capacity and the words “correspondence for the purposes of court proceedings” (“corrispondenza par ragioni di giustizia”) signed by the sender, who must also specify the proceedings to which the letter relates. If the sender is the lawyer, his signature must be certified by the head of the Bar Association or the latter's delegate.
98. As the censorship of correspondence is an administrative act and does not affect the prisoner's personal liberty, no appeal lies to the Court of Cassation in respect of it (Court of Cassation, judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992).
99. Section 35 of the Prison Administration Act (Law no. 354 of 26 July 1975) provides that prisoners may send requests or complaints in a sealed envelope to the following authorities:
(i) the prison governor, prison inspectors, the director-general of penal institutions and the Minister of Justice;
(ii) the judge responsible for the execution of sentences;
(iii) the judicial and health-care authorities who inspect the prison;
(iv) the president of the regional council;
(v) the President of the Republic.
D. The effect of section 41 bis of Law no. 354 of 1975 on the censorship of correspondence
100. By section 41 bis of the Prison Administration Act, as amended by Law no. 356 of 7 August 1992, the Minister of Justice is empowered to suspend application of the ordinary prison regime – as laid down by Law no. 354 of 1975 – in whole or in part if it fails to meet the standards required to preserve public order and security. He must give reasons for so doing and judicial review will lie. The provision may be applied only where the prisoner has been prosecuted for or convicted of one of the offences set out in section 4 bis of the statute. The offences concerned include those linked to mafia activities. By Law no. 446 of 28 November 1999 that provision is to remain in force until 31 December 2000.
101. Section 41 bis contains no list of the restrictions that may be imposed. They must be determined by the Minister of Justice. When first implemented, section 41 bis was construed as also empowering the Minister of Justice to censor prisoners' correspondence.
102. In its judgments nos. 349 and 410 delivered in 1993, the Italian Constitutional Court, which was examining whether that system was consistent with the principle that the legislator's powers should not be encroached upon, held that section 41 bis was compatible with the Constitution. However, it stated that by virtue of Article 15 of the Constitution a reasoned decision of the courts was required for any restriction on correspondence to be imposed. The Minister of Justice was accordingly not empowered to impose measures regarding prisoners' correspondence.
THE LAW
I. Alleged violation of Article 3 of the Convention
112. The applicant complained that during the first months of his detention in Pianosa Prison he had been subjected 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.”
A. Allegation of ill-treatment at Pianosa Prison
113. The Government acknowledged that the situation in Pianosa Prison during the summer and autumn of 1992 was very difficult, in particular because of the extremely tense atmosphere at the time.
114. Initially, the Government had affirmed before the Commission: “These deplorable acts were committed by certain warders on their own initiative; such transgressions cannot be regarded as forming part of a general policy. Such reprehensible conduct, unforeseen and unwanted – just the reverse: it constituted a criminal offence – cannot engage the responsibility of the State, which on the contrary has responded through the judicial authorities in order to re-establish the rule of law that such episodes serve to undermine.”
115. However, at the hearing before the Court, the Government made a preliminary submission that, in the absence of any cogent medical evidence, the level of severity required for a violation of Article 3 of the Convention could not be regarded as having been attained in the instant case.
116. In any event, the Government disagreed with the Commission's conclusion that the Italian State had failed to react to the acts of violence committed by its agents. The Government argued that the fact that the investigation to identify the warders allegedly responsible for the ill‑treatment had been unsuccessful did not amount to a violation of Article 3, as the Court's case-law on the subject could not be construed as meaning that a State failed to satisfy its obligations under Article 3 of the Convention unless the investigation led to a conviction. The issue was rather whether the investigation had been conducted diligently or whether the authorities had been guilty of errors or omissions. In the present case, the authorities conducting the investigation had shown resolve and spared no effort to identify those responsible. On the contrary, it was the applicant who had been responsible for the failure of the investigation by not requesting a medical examination immediately after being subjected to the ill-treatment in question. Furthermore, the fact that the applicant, the only witness able to give direct evidence, had been unable to identify the warders from the photographs he had been shown indicated that any further action by the investigators would have been futile.
117. The applicant said that particularly between July and September 1992 he had been subjected to numerous acts of violence, humiliation, and debasement, threats and other forms of torture, both physical and mental (see paragraph 29 above). He had been slapped and struck on many occasions, and had suffered injuries to his fingers, knees and testicles. He had been subjected to body searches in the shower and had remained handcuffed during medical examinations. His protests had been futile, even dangerous. On one occasion when he had protested after his clothes had been torn by warders, he had been threatened, insulted and struck by one of the warders. As a result, his glasses and a false tooth had been damaged and – as his clinical records showed – he had been refused permission to have them repaired. The psychological disorders which he had suffered since being detained at Pianosa were confirmed by a medical certificate of 20 April 1996.
118. The applicant maintained that the government of the day was undoubtedly aware of the incidents at Pianosa Prison and had tolerated them. He referred on that point to a note drawn up by the Livorno judge responsible for the execution of sentences, in which it was stated that the methods used at Pianosa were intended as an instrument of intimidation of the prisoners. Further, the fact that his criminal complaint had been filed away on the ground that the offenders could not be identified marked approval of an unlawful act and demonstrated that the government of the day had been guilty of causing or encouraging events at Pianosa.
119. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999‑V, and the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79). The nature of the offence allegedly committed by the applicant was therefore irrelevant for the purposes of Article 3.
120. The Court recalls that 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. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517-18, §§ 52 and 53, and the Assenov and Others judgment cited above, p. 3288, § 94).
Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. 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. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account (see, for instance, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and the Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55), but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3.
121. Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30). 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 the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161 in fine).
122. In the instant case, the ill-treatment complained of by the applicant consisted of, on the one hand, being slapped, blows, squeezing of the testicles and baton blows and, on the other, insults, unnecessary body searches, acts of humiliation (such as being required to remain in handcuffs during medical examinations), intimidation and threats.
123. The Court observes at the outset that at the hearing before it the Government argued that there was no medical evidence to show that the treatment had attained the level of severity required for there to be a violation of the provision relied on. Although that argument was not raised at an earlier stage in the proceedings, the Court must nevertheless examine it in view of the importance and seriousness of a finding of a violation of Article 3 of the Convention.
124. The Court notes that, as the Government said, the applicant has not produced any conclusive evidence in support of his allegations of ill‑treatment or supplied a detailed account of the abuse to which the warders at Pianosa Prison allegedly subjected him, particularly between July and September 1992. He confined himself to describing a situation that he said was widespread at Pianosa at the time and to referring to the note of 12 December 1996 of the President of the court responsible for the execution of sentences (see paragraph 50 above). Indeed, the only concrete evidence furnished by the applicant on this issue, namely the Pianosa Prison medical register (see paragraphs 31-33 above), a medical report of 24 March 1995 and the results of a scan of his knees dated 3 April 1996 (see paragraph 34 above), and a certificate regarding his mental health drawn up on 20 March 1996 (see paragraph 35 above), do not suffice to fill that gap. Thus, there is nothing in the prison medical register to show that the problems the applicant had with his false tooth were caused by blows from a warder. Nor is there any evidence that the injuries to his knees were caused by ill-treatment, especially as he did not seek medical attention on that account until 10 August 1993 (while asserting that the ill-treatment had considerably diminished and even ceased by the end of September 1992). Moreover, the certificate indicating that he suffered from psychological disorders was dated about three and a half years after the incidents in issue and does not point to any causal link (it merely states that the disorders had begun three years earlier – in other words, after the incidents complained of had ceased).
125. The Court recognises that it may prove difficult for prisoners to obtain evidence of ill-treatment by their prison warders. In that connection, it notes that the applicant alleged that the warders at Pianosa applied pressure on the prisoners by threatening reprisals if they were denounced. It observes, however, that the applicant has not suggested, for example, that he was ever refused permission to see a doctor. In addition, the applicant made several applications through his lawyers to the judicial authorities, notably for release (see paragraphs 14, 15, 19 and 21 above); those applications were made shortly after September 1992, that is to say not long after the ill-treatment concerned had diminished or even ceased. Yet he did not complain about his treatment until the preliminary hearing on 2 October 1993 (see paragraph 36 above). The applicant has given no explanation for that substantial delay.
126. The Court has examined the note of the President of the court responsible for the execution of sentences dated 12 December 1996; it was the Government which produced it to the Commission (see paragraph 50 above). While not underestimating the seriousness of the matters criticised therein, the Court cannot lose sight of the fact that the note represents no more than a general assessment that was not based on concrete and verifiable facts. It is therefore unable to treat it as decisive evidence.
127. In these circumstances, the Court considers that the material it has before it regarding the applicant's assertion that he was subjected to physical and mental ill-treatment in Pianosa Prison does not constitute sufficient evidence to support that conclusion.
128. Nor is that finding called into question by the general conditions in Pianosa Prison at the material time, as described by the Livorno judge responsible for the execution of sentences in his report of 5 September 1992 (see paragraphs 42-43 above): the report contains no evidence directly relevant to the applicant's position and the severity and extent of the abuse described in it were reduced to less alarming proportions following inquiries made by the prison authorities concerned (see paragraphs 44-46 above).
129. In conclusion, since the evidence before it does not enable the Court to find beyond all reasonable doubt that the applicant was subjected to treatment that attained a sufficient level of severity to come within the scope of Article 3, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 of the Convention on account of the alleged ill-treatment.
B. The nature of the investigations carried out
130. The Court observes that, when taken together, the statements made by the applicant to the Trapani investigating judge at the hearing on 2 October 1993 and to the carabinieri on 5 January 1994 gave reasonable cause for suspecting that the applicant had been subjected to improper treatment in Pianosa Prison.
It must not be forgotten either that the conditions of detention at Pianosa had been the centre of media attention during the period concerned (see paragraph 44 above), and that other prisoners had complained of treatment similar to that described by the applicant (see paragraphs 36 and 43 above), thus lending further credibility to his allegations.
131. The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in ... [the] Convention”, requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86; and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance (see paragraph 119 above), be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (see the Assenov and Others judgment cited above, p. 3290, § 102).
132. The Court notes that after the investigating judge had informed the relevant public prosecutor's office of the allegations of ill-treatment made by the applicant at the preliminary hearing, the State authorities conducted certain investigations into those allegations (see paragraphs 37-41 above). It is not, however, satisfied that those investigations were sufficiently thorough and effective to satisfy the aforementioned requirements of Article 3.
133. The Court observes at the outset that the investigation by the Livorno public prosecutor's office was very slow: after the applicant was interviewed by the carabinieri on 5 January 1994, fourteen months elapsed before he was given a further appointment with a view to identifying those responsible. Yet the file shows that the only action taken during that interval was the obtaining of photocopies (not prints) of photographs of the warders who had worked at Pianosa. It will be recalled that throughout that period the applicant remained a prisoner at Pianosa.
134. The Court finds it particularly striking that although the applicant repeated on 9 March 1995 that he would be able to recognise the warders concerned if he could see them in person, nothing was done to enable him to do so and, just nine days later, the public prosecutor's office sought and was granted an order for the case to be filed away on the ground not that there was no basis to the allegations but that those responsible had not been identified.
135. The inactivity of the Italian authorities is made even more regrettable by the fact that the applicant's complaint was not an isolated one. The existence of controversial practices by warders at Pianosa Prison had been publicly and energetically condemned even by authorities of the State (see paragraphs 42-45 above).
136. In these circumstances, having regard to the lack of a thorough and effective investigation into the credible allegation made by the applicant that he had been ill-treated by warders when detained at Pianosa Prison, the Court holds that there has been a violation of Article 3 of the Convention.
C. Allegedly inhuman and degrading nature of transfers from Pianosa
137. The applicant also alleged that the conditions in which prisoners were transferred from Pianosa to other prisons were inhuman and degrading.
138. The Court observes, however, that the applicant has not supplied detailed information regarding how many times he was transferred from Pianosa or the dates and precise conditions of such transfers. Nor did he complain about the conditions of transfer to the relevant authorities. Like the Commission, the Court consequently considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 on that account.
IV. Alleged violation of Article 8 of the convention
175. The applicant complained that the Pianosa Prison authorities had censored his correspondence with his family and lawyer.
Article 8 of the Convention 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.”
176. The Commission unanimously expressed the view that Article 8 of the Convention had been violated in the present case as the interference with the applicant's right to respect for his correspondence was not “in accordance with the law”. It said that the applicable legislation – section 18 of Law no. 354 of 1975, which contains no rules as to the length of time for which prisoners' correspondence may be censored or the grounds on which an order for censorship may be made – did not indicate with sufficient clarity the extent of the relevant authorities' discretion in that sphere or provide guidance on how it was to be exercised. The Commission relied on the judgments of the Court in the Calogero Diana and Domenichini cases, which also concerned censorship of prisoners' correspondence (see the Calogero Diana v. Italy judgment of 15 November 1996, Reports 1996-V, pp. 1775-76, §§ 29-33, and the Domenichini v. Italy judgment of 15 November 1996, Reports 1996-V, pp. 1799-800, §§ 29-33).
177. In the light of the decision of the Court in its Calogero Diana and Domenichini judgments, the Government did not contest the Commission's conclusion. They explained that the Minister of Justice had introduced a bill in the Senate on 23 July 1999 for the amendment of the relevant statute to bring it into line with the aforementioned judgments of the Court.
178. The Court agrees with the Government and the Commission that there has been an “interference by a public authority” in the exercise of the applicant's right to respect for his correspondence, as guaranteed by paragraph 1 of Article 8.
179. 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; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; Calogero Diana cited above, p. 1775, § 28; Domenichini cited above, p. 1799, § 28; and Petra v. Romania, 23 September 1998, Reports 1998-VII, p. 2853, § 36).
A. “In accordance with the law”
1. Periods from 21 April 1992 to 20 July 1992, 15 September 1993 to 21 February 1994 and 13 August 1994 to 13 November 1994
180. The censorship of the applicant's correspondence during the aforementioned periods was ordered by decisions of the Trapani District Court and was based on section 18 of Law no. 354 of 1975 (see paragraphs 54 and 58 above). However, the Court sees no reason to disagree with the Commission's view that, despite being based on that provision, the censorship of the applicant's correspondence did not comply with Article 8 of the Convention.
2. Period from 20 July 1992 to 15 September 1993
181. During this period, the censorship was based on an order of the Minister of Justice made pursuant to section 41 bis of Law no. 354 of 1975 (see paragraphs 55-56 above).
182. The Court notes that the Italian Constitutional Court, relying on Article 15 of the Constitution, has held that the Minister of Justice had no power to take measures concerning prisoners' correspondence and had therefore acted ultra vires under Italian law (see paragraph 102 above). The censorship of the applicant's correspondence during this period was therefore illegal under national law and was not “in accordance with the law” within the meaning of Article 8 of the Convention.
3. Period from 21 February 1994 to 10 June 1994
183. There was no legal basis for the censorship of the applicant's correspondence during this period (see paragraph 59 above).
4. Conclusion
184. In conclusion, the various measures complained of by the applicant regarding the censorship of his correspondence were at no time “in accordance with the law” within the meaning of Article 8 of the Convention. There has therefore been a violation of that Article.
B. The purpose and necessity of the interference
185. In the light of the foregoing conclusion, the Court does not consider it necessary in the instant case to examine whether the other requirements of paragraph 2 of Article 8 were satisfied.
FOR THESE REASONS, THE COURT
1. Holds by nine votes to eight that there has been no violation of Article 3 of the Convention as regards the applicant's allegations of ill-treatment in Pianosa Prison;
2. Holds unanimously that there has been a violation of Article 3 of the Convention in that no effective official investigation into those allegations was held;
3. Holds unanimously that there has been no violation of Article 3 of the Convention on account of the conditions of transfer from Pianosa Prison;
7. Holds unanimously that there has been a violation of Article 8 of the Convention on account of the censorship of the applicant's correspondence;