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EUROPEAN COURT OF HUMAN RIGHTS

Calogero Diana v. Italy

Application no. 15211/89

15 November 1996

(Excerpts)

AS TO THE FACTS

I. Circumstances of the case

A. Monitoring of the applicant's correspondence

1. During detention in Palmi Prison

8. On 28 March 1987 the judge responsible for the execution of sentences (magistrato di sorveglianza) in Reggio di Calabria decided that Mr Diana's correspondence - the applicant then being in custody in Palmi Prison - should be subject to censorship under section 18 of Law no. 354 of 26 July 1975 (see paragraph 18 below).  The grounds given for the decision were: the nature of the applicant's offences; the fact that he belonged to a special category of prisoner whose attitude was one of total opposition to the institutions of the State; his conduct; and his rejection of prison and refusal of any cooperation with prison staff.

2. During detention in Ascoli Piceno Prison 

9. On an unspecified date the applicant was transferred to Ascoli Piceno Prison.

10. On 17 December 1988 the judge responsible for the execution of sentences at Macerata ordered that all the applicant's correspondence, both incoming and outgoing, should be subject to censorship for six months from 22 December 1988, the date on which the prisoner was notified of the decision.  He considered that the reasons which had prompted his counterpart in Reggio di Calabria to take such a measure (see paragraph 8 above) remained valid and that there was a continuing danger that the applicant would use his correspondence to commit offences or to prejudice public order or safety.

At that time Mr Diana already had two convictions, and two other sets of criminal proceedings were pending against him.

The first of these, in the Cagliari Assize Court of Appeal, related to charges of kidnapping, manufacture, possessing and carrying explosives, aggravated destruction of property and resisting arrest; they ended in a judgment of 17 March 1989, which became final on 5 March 1990 and in which the applicant was convicted and sentenced to eight years and six months' imprisonment and permanently disqualified from holding public office.

The second set of proceedings, which were pending before the Novara Magistrate's Court (pretore), originated in a prosecution brought following an escape by the applicant on 23 September 1986; Mr Diana had been recaptured on 5 December 1986.

B. Applications challenging censorship during detention in Ascoli Piceno 

12. Mr Diana made several applications challenging the monitoring of his correspondence.  In particular, he lodged an application (richiesta di riesame) with the Macerata judge responsible for the execution of sentences to reconsider his decision of 17 December 1988 (see paragraph 10 above).  The judge refused the application on 13 January 1989.

On 22 January 1989 the applicant sent a copy of the judge's decisions to his lawyer. On 27 January 1989 the lawyer sought to have the censorship of his correspondence with the applicant ended and the order of 17 December 1988 (see paragraph 10 above) rescinded.  Relying on Articles 6 para. 3 (b) and 8 of the Convention (art. 6-3-b, art. 8), he argued, among other things, that the censorship was a manifest violation of the rights of the defence and could not be ordered on the basis of a similar decision taken by another judge nearly two years earlier or on the basis of considerations relating to the applicant's conduct in another prison, especially as the applicant was receiving more lenient treatment in Ascoli Piceno Prison.

13. On 17 March 1989 the judge responsible for the execution of sentences held that the measure in issue was wholly justified, having regard to the arguments already set out in his decision of 17 December 1988, to disciplinary reports on Mr Diana and to the fact that while in custody in Palmi Prison the applicant had been a member of a group of prisoners all of whom belonged to extreme-left-wing subversive movements.  He nevertheless decided to adjourn the lawyer's application and submit a question concerning the interpretation of the relevant law to the Prison Service (Direzione generale degli Istituti di prevenzione e pena), relating to whether the monitoring of the applicant's correspondence with his lawyer was lawful, given that two sets of criminal proceedings against the applicant were still pending at the time.  The applicant's correspondence nevertheless continued to be monitored while a reply from the relevant authority was awaited.

14. On 26 May 1989 the judge, in reply to a letter sent him by the defence lawyer on 18 May, again confirmed his decision of 17 December 1988.

15. The Prison Service replied on 1 June 1989.  In its opinion, censorship of a prisoner's correspondence, provided that all the legal requirements were satisfied, covered all his correspondence, including that with his lawyer, and could not be regarded as infringing the rights of the defence, which were guaranteed by Article 24 of the Constitution.  The confidentiality of communications between a prisoner charged with a criminal offence and his lawyer was preserved through the possibility of communication during private conversations inside the prison.  On 10 June 1989 the judge responsible for the execution of sentences refused the lawyer's application of 27 January 1989.

16. The measure in issue ended automatically on 22 June 1989, on the expiry of the period specified in the decision (see paragraph 10 above).

17. On 26 June 1992 the applicant was transferred to the special prison at Trani (Bari).  Since February 1994 he has enjoyed a semi-custodial regime. II. Relevant domestic law      

A. Legislation

18. Section 18 of Law no. 354 of 26 July 1975 ("Law no. 354"), as amended by section 2 of Law no. 1 of 12 January 1977, provides that power in the matter of censorship of prisoners' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter.  The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision, however, does not specify the cases in which such a decision may be taken.

19. The censorship of which the applicant complains consists, in particular, in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him, and in the stamping of letters for the purpose of showing that they have been inspected. Censorship cannot extend to deleting words or sentences, but the judicial authority can order that one or more letters shall not be handed over; in that case, the prisoner must immediately be informed of the fact.  This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judicial authority of his action.

20. Article 103 of the New Code of Criminal Procedure forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer, provided that the correspondence is recognisable as such and unless the judicial authority has well-founded reasons to believe that the correspondence constitutes the substance of the offence.  Similarly, by Article 35 of the transitional provisions of the same Code, the rules on the censorship of a prisoner's correspondence that are laid down in Law no. 354 and Presidential Decree no. 431 of 29 April 1976 do not apply to correspondence between the prisoner and his lawyer.  It follows, among other things, that the only authority that may order censorship of that correspondence, and then solely in the case mentioned above, is the judge or court dealing with the case.

B.  Case-law on whether domestic remedies exist for challenging monitoring of correspondence

21. The Court of Cassation has held on several occasions that the monitoring of a prisoner's correspondence is an administrative act and has also stated that Italian law does not provide any remedies in respect of it; in particular, censorship cannot be the subject of an appeal on points of law, since it does not affect the prisoner's personal freedom (Court of Cassation, judgments nos. 3141 and 4687 of 14 February 1990 and 4 February 1992 respectively).

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 lawyer; 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 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, 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.

III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (b) OF THE CONVENTION

35. The applicant also complained of a breach of his right to defend himself and to have adequate facilities for the preparation of his defence. He relied on Article 6 para. 3 (b) of the Convention (art. 6-3-b), whereby

"3. Everyone charged with a criminal offence has the following minimum rights:...

(b) to have adequate time and facilities for the preparation of his defence; ..."

36. In the Government's submission, opening and reading the letters in question had not jeopardised the applicant's defence, Mr Diana having always retained the possibility of speaking to his lawyer in the visiting room, subject only to visual surveillance by a warder.

37. Mr Diana objected that the conversations were confidential only in theory, since the warder was often able to overhear them. Furthermore, his transfer from Milan Prison to Palmi Prison and then to Ascoli Piceno Prison, the latter two being 1,000 and 600 kilometres respectively from Milan, where his lawyer had his office, had further impeded the exercise of the right guaranteed in Article 6 para. 3 (art. 6-3).

38. Like the Delegate of the Commission, the Court considers that the observations filed at the registry by counsel for the applicant are not such as to call in question the conclusion in paragraph 40 of the Commission's report that it is not necessary to examine this complaint separately and that it should rather be regarded as being covered by the one relating to Article 8 (art. 8).

FOR THESE REASONS, THE COURT UNANIMOUSLY

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