The applicant [Mr Antonio Messina] is an Italian national who was born in 1946 and is currently a prisoner at Trapani Prison.
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. The trials
In a judgment delivered by the Marsala District Court on 21 December 1992 the applicant was sentenced to seven years’ imprisonment and to payment of a fine inter alia for drug-trafficking and membership of a Mafia-type organisation. The applicant was extradited from Switzerland on 23 November 1993 in order to serve his sentence. He was subsequently held in Como Prison. In a judgment of 6 March 1995, deposited with the registry on 30 May 1995, the Palermo Court of Appeal acquitted him of two charges and reduced his sentence to five years’ imprisonment. The applicant lodged an appeal on points of law on 13 July 1995. That appeal was dismissed in a judgment of 26 January 1996.
On 18 January 1995 the investigating judge attached to the Caltanissetta District Court issued a warrant to have the applicant brought before him immediately on suspicion of the murder of a judge; the applicant was served with that warrant on 18 January 1995. The proceedings are apparently still pending.
Further proceedings are pending against the applicant and 27 co-accused before the Trapani Assize Court for membership of a Mafia-type organisation and other offences linked with drug trafficking.
On 26 May 1995, in another set of proceedings before the Marsala District Court, the applicant was sentenced to 17 years’ imprisonment inter alia for conspiracy to traffic drugs internationally. In a judgment of 16 April 1997 the Palermo Court of Appeal acquitted the applicant of one charge and reduced the sentence for the other charges to ten years’ imprisonment. An appeal on points of law by the applicant was dismissed in a decision of 4 December 1998, deposited with the registry on 25 February 1999.
In addition, the applicant is serving a 14-year prison term to which he was sentenced by the Palermo Court of Appeal for false imprisonment, among other offences.
2. The special regime
By a decree of 26 November 1993, the Minister of Justice ordered that for one year the applicant should be subjected to the special prison regime. This decree was grounded on public order and security considerations given the dangerousness of the Mafia and of the applicant in so far as he was presumed, according to police reports, to have maintained links with Mafia circles. Moreover, this decree, in derogation from the Prison Administration Act imposed the following restrictions:
– no access to a telephone;
– no correspondence with other prisoners;
– no meetings with third parties (Article 18);
– limits on visits by family members, with a maximum of one visit for one hour per month;
– no sums of money above a fixed amount to be received or sent out;
– only parcels containing clothing to be sent in from outside prison;
– no organisation of cultural, recreational or sports activities;
– no right to vote in elections for prisoners’ representatives or to be elected as a representative;
– no handicrafts;
– no food requiring cooking to be purchased;
– not more than two hours per day to be spent outdoors.
By the terms of Article 2 of this decree, censorship of correspondence by the governor of a prison required previous authorisation by the court having jurisdiction.
On 26 November 1993 the governor of Como Prison transmitted to the Trapani Assize Court an application by the applicant for permission – and if possible, permanent permission – for additional visits and telephone calls. The President of the Assize Court allowed this application on 20 December 1993.
On 29 November 1993 the governor of Como Prison asked the Trapani Assize Court to authorise censorship of the correspondence of the applicant, who on 28 November 1993 was served with the Minister of Justice’s decree placing him under the special regime. On 30 November 1993 the President of the Trapani Assize Court gave his authorisation.
On an unspecified date the applicant challenged the decree of 28 November 1993 before the Ancona court responsible for the execution of sentences. He objected to being placed under the special regime and complained of its vexatious nature. The court rejected the appeal on an unspecified date in 1995.
The applicant was subsequently transferred several times to prisons in Trapani, Ascoli Piceno, Termini Imerese, Pianosa, Palermo and Porto Azzurro, often for the sole purpose of allowing him to participate in the hearings of the appeal proceedings taking place in Palermo.
On 7 December 1993 the governor of Termini Imerese Prison made an application to the Trapani Assize Court and to the Marsala District Court requesting authorisation to allow the applicant visits by members of his family (the applicant is married and has three daughters). The President of the Assize Court granted his authorisation on 9 December 1993.
On an unspecified date an application for censorship of the applicant’s correspondence was made by the prison to the Macerata court responsible for the execution of sentences. On 22 August 1994 the Macerata court responsible for the execution of sentences granted this application for a period of six months.
On 24 August 1994 the applicant lodged an appeal against that decision with the Ancona and Trapani courts responsible for the execution of sentences. The result of those appeals is unknown.
In a decree of 29 November 1994 the Minister of Justice ordered that the applicant be subjected once again to the special prison regime, from 29 November 1994 to 28 May 1995, on the ground that the conditions justifying the imposition of this kind of treatment continued to exist. As to the details of the treatment, the restrictions were the same as those imposed by the previous decree.
On 6 December 1994 the applicant appealed against this decree to the Ancona court responsible for the execution of sentences. He complained of being subjected to the special regime and, in particular, of the limit on visits by family members.
In a decision of 27 March 1995 the Ancona court responsible for the execution of sentences rejected the appeal in part, holding that imposing the special prison regime on the applicant was justified and that the decree complained of was based on adequate grounds. As for the restrictions imposed by that decree, the court found that the list of minimal conditions of detention laid down in section 14 quater of the Prison Administration Act should apply in relation to visits by family members. Consequently, the court struck down the ban on receiving more than one visit per month from his family and ruled that he would in future be entitled to four.
On 30 March 1995 the applicant appealed on points of law against that decision. He argued that the conditions of detention to which he was subjected were inhuman and that the special prison regime had been extended by decrees which were not based on adequate grounds in his case. The public prosecutor also appealed against the decision. In a judgment of 10 October 1995, deposited with the registry on 31 October 1995, the appeals were held to be inadmissible on the ground that they were now devoid of purpose, since the decree of 29 November 1994 had expired on 28 May 1995, before the Court of Cassation delivered its judgment.
In a decree of 27 May 1995, the Minister of Justice ordered application of the special prison regime to be extended until 26 November 1995, on the ground that the conditions justifying these rules continued to exist. On 5 June 1995 the applicant lodged an appeal against the above decree with the Ministry of Justice, to be transmitted, if necessary, to the Ancona court responsible for the execution of sentences. The applicant complained of, inter alia, the lack of real grounds justifying extension of the special regime in his case and argued that the restrictions placed on visits and time outdoors and the prohibition of the purchase of food requiring cooking were contrary to section 14 quater of the Prison Administration Act, incompatible with the aim of rehabilitation and also vexatious. The applicant asked for application of the special regime to be countermanded and for permission to receive visits from his wife and his daughters without glass partitions and to make telephone calls. The applicant also emphasised that he was being held far from his family and the place where the trial was taking place. The outcome of that appeal is not known.
In a decree of 24 November 1995 the Minister of Justice ordered, on similar grounds, that application of the special prison regime be extended to 23 May 1996. On 27 November 1995 the applicant challenged the above order in the Florence court responsible for the execution of sentences.
In a decree of 21 May 1996 application of the special regime was once again extended by six months. The grounds for that decree and the restrictions imposed were the same as those of the previous decrees. On 30 May 1996 the applicant challenged the above decree in the Florence court responsible for the execution of sentences.
On 2 October 1996 the applicant applied to the Florence court responsible for the execution of sentences for a date to be fixed for hearing his appeals of 27 November 1995 and 30 May 1996.
In a decree of 19 November 1996 the Minister of Justice once again extended application of the special regime by six months; that decision was based on grounds similar to those of the previous decrees. On 21 November 1996 the applicant challenged the decree in the Florence court responsible for the execution of sentences. The court rejected the applicant’s appeal in a decision of 11 February 1997. Basing its decision on Constitutional Court decision no. 351/1996, the court held that extension of the application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities. The court however struck out some of the previous restrictions placed on the applicant, namely suspension of the rehabilitation programme; restrictions on visits by family members; the right to receive parcels containing only clothing, the ban on the purchase of food requiring cooking and the prohibition of spending more than two hours outdoors. The applicant appealed on points of law against the above decision. The hearing in private was set down for 30 September 1997. On that date the appeal was declared inadmissible as being devoid of purpose.
On 4 February 1997 the Minister of Justice ordered that the applicant be permitted to replace a monthly visit by his family with a telephone call, to receive one additional parcel per month and two additional parcels per year, and to use the kitchens.
In a decree of 19 May 1997 the Minister of Justice once again extended application of the special prison regime by six months. That decision was based on grounds similar to those of the previous ones.
The applicant challenged the above decree in the Florence court responsible for the execution of sentences, which – finding that extension of application of the special regime to the applicant was justified in the light of the information gathered by the police and judicial authorities – dismissed the applicant’s appeal in a decision of 7 August 1997. The court however struck out some restrictions previously imposed on the applicant, namely suspension of the rehabilitation programme, restrictions on visits by family members, the right to receive parcels containing only clothing, the ban on the purchase of food requiring cooking, and the prohibition of spending more than two hours per day outdoors. The applicant appealed on points of law against the above decision but the appeal was ruled inadmissible in a judgment of 19 January 1998 as being devoid of purpose, since the decree’s period of validity had expired in the interim.
On 29 August 1997 the applicant applied to the Macerata judge responsible for the execution of sentences complaining of the regime under which he had been placed. The judge rejected that appeal in a decision of 15 October 1997, deposited with the registry on the following day. He noted that the restrictions complained of had been imposed by the prison authorities, by means of departmental orders which, without exception, implemented the Minister of Justice’s decrees and were therefore lawful; he further emphasised that accused – contrary to convicted persons – were not required to participate in the rehabilitation programme because of the principles of the presumption of innocence and the freedom to defend oneself.
In a decree of 21 November 1997 the Minister of Justice extended the special regime for six months and ordered the governor of the prison to apply to the competent court for authorisation to censor all the applicant’s correspondence. On 23 November 1997 the governor of Trapani Prison applied for authorisation to the Livorno judge responsible for the execution of sentences, who informed the judge who had jurisdiction, namely the Trapani judge responsible for the execution of sentences. The latter ordered censorship of the applicant’s correspondence for six months, starting on 21 November 1997.
On 28 November 1997 the applicant appealed against the decree of 21 November 1997 to the Ancona court responsible for the execution of sentences, which initially transmitted it on 1 December 1997 to the Palermo District Court, but received it once again on 2 May 1998 as jurisdiction over the matter had changed in the interim. By a decision of 7 May 1998, deposited with the registry on 11 May 1998, the court rejected the appeal.
In a decision of 4 February 1998 the Minister of Justice revoked the restriction on outdoor exercise.
By a decision of 21 May 1998 the Minister of Justice ordered that the applicant should no longer be subject to the special regime.
3. Censorship of the applicant’s correspondence with the European Commission of Human Rights and with his family
A number of letters as well as the observations sent by the applicant to the Secretariat of the European Commission of Human Rights (“the Commission”) through his wife arrived with a censor’s certificate from the prisons of Pianosa, Palermo, Porto Azzurro, Ascoli Piceno and Trapani. Censorship continued until June 1998.
Letters sent by the applicant to his wife, in particular those of 19 and 21 October 1997 were censored; the applicant was informed of this on 21 and 28 October 1997.
Appeals by the applicant to the courts responsible for the execution of sentences were also censored by the prison authorities.
B. Relevant domestic law
1. The special prison regime
Section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975), as amended by Law no. 356 of 7 August 1992, gives the Minister of Justice the power to suspend application of the ordinary prison regime as laid down in Law no. 354 of 1975 in whole or in part, by means of a decision stating grounds which is subject to judicial review, for reasons of public order and security in cases where the ordinary prison regime would be inadequate to meet these requirements.
Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in section 4 bis of the Act, which includes offences relating to Mafia activities.
Under the terms of section 1 of Law no. 36 of 16 February 1995, application of the section 41 bis special regime was extended until 31 December 1999.
The measures which may result from application of the provision in question are the following:
– a ban on participating in the preparation of food and organising prisoners’ recreational activities;
– a ban on visits by persons other than family members, a cohabitee or a lawyer;
– a maximum of two visits and one telephone call per month;
– censorship of all the prisoner’s correspondence except for that with his lawyer;
– not more than two hours per day to be spent outdoors;
– no extra visits allowed for good conduct;
– restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison’s internal rules;
– no more than two parcels per month;
– no sums of money to be received from outside prison or sent out;
– no handicrafts involving the use of dangerous tools.
Under section 14 ter of the Prison Administration Act it is possible to lodge an appeal (reclamo) against a decree of the Minister of Justice imposing the special regime with the court responsible for the execution of sentences (tribunale di sorveglianza) within ten days from the date on which the person concerned has received a copy of the decree. Such an appeal does not have suspensive effect. The court must take a decision within ten days.
The Italian Constitutional Court has been asked to rule on whether such a system complies with the principle of non-encroachment on matters reserved for the legislature. The Constitutional Court held (in judgments nos. 349 and 410 of 1993) that section 41 bis was in accordance with the Constitution. It held that while the special regime within the meaning of the provision in question was in practice set up by the Minister, an appeal lay against a ministerial decree to the courts responsible for the execution of sentences, which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned, and which in any event could never amount to inhuman treatment.
Nevertheless, the Constitutional Court held, on the basis of Article 15 of the Constitution, which provides, inter alia, that restrictions on correspondence may be imposed only by means of a court decision whose grounds are stated, that the power to censor a prisoner’s correspondence could be given by the courts alone. As a result, section 41 bis could not be interpreted to include the power for the Minister of Justice to place a prisoner’s correspondence under censorship.
However, the Court of Cassation had held that the courts responsible for the execution of sentences should confine themselves to reviewing the lawfulness of a ministerial decree as such, without substituting themselves for the public administrative authorities in the actual choice of the measures to be taken. On the other hand, the courts responsible for the execution of sentences had in practice gone so far as to review whether each specific measure was in accordance with the aim pursued by the administrative authorities. The result of this had been that decisions of the courts responsible for the execution of sentences often remained unexecuted, and this had given rise to conflicts between those courts and the administrative authorities.
It was in judgment no. 351 of 14-18 October 1996 that the Constitutional Court finally established that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementation of a measure, both in relation to the aim pursued and in the light of the fundamental rights guaranteed by the Constitution. The Court of Cassation had moreover changed the line of its case-law on the question even before the Constitutional Court’s judgment, by allowing the court responsible for the execution of sentences to quash, in whole or in part, the application of unlawful measures (see judgments nos. 6873 of 12 February 1996 and 684 of 1 March 1996).
On 7 February 1997, applying the principles laid down by the Constitutional Court in the above-mentioned judgment, the Prison Administration Department of the Ministry of Justice sent a circular letter to the governors of prisons regarding organisation of the wings where prisoners subject to the special regime are held. This circular contained, inter alia, the following instructions: prisoners would be allowed to use the kitchens; they would have access to rooms equipped with sports facilities and to a library; visits by family members could be replaced by telephone calls; the use of glass partitions would continue but, as a result, the searching of visitors need not be so strict.
In judgment no. 376 of 26 November-5 December 1997, the Constitutional Court reaffirmed that section 41 bis was in accordance with the Constitution, while changing and clarifying its correct interpretation. It held, inter alia, that decrees imposing the special regime had to be based on genuine public order and security grounds, and that decisions to extend this regime also had to be based on sufficient grounds which were independent of those justifying the imposition of the rules. The court held that the special regime could never constitute inhuman treatment or hinder the prisoner’s rehabilitation, which would be contrary to Article 27 of the Constitution. It nevertheless stated that at no time did section 13 of the Prison Administration Act cease to apply, under which the treatment to which a prisoner is subjected must respect the needs of his personality, and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner’s personality and with his cooperation.
Section 27 of the Act also remains applicable. This provides that cultural, sporting and recreational activities should be promoted and organised in prisons – as should every other activity allowing the expression of the prisoners’ personalities within a rehabilitation programme. These activities must, of course, be organised in such a way as to avoid any contact between the person concerned and the Mafia or criminal environment from which he came. Emphasising that the special regime must respect the aim of returning the prisoner to normal society, the Constitutional Court has held that the principle of the presumption of innocence is not infringed by the fact that the special regime can be imposed on suspects before a final conviction. In fact, application of the special regime does not stand in the way of early release (see the Constitutional Court’s judgment no. 349 of 1993) which presupposes the prisoner’s previous participation in the cultural, sporting and recreational activities provided for in section 27 of the Prison Administration Act.
On 6 February 1998 the Prison Administration Department of the Ministry of Justice sent a circular letter based on the principles laid down by the Constitutional Court in the above-mentioned judgment to prison governors on the subject of the organisation of the wings where prisoners subject to the special regime are held. This circular included, inter alia, the following instructions:
– outdoor exercise time was to be increased to four hours per day, but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be associated with the Mafia;
– the outdoor exercise yards in Naples, Secondigliano and Pisa Prisons were to be equipped for physical exercise and sport;
– one or more rooms for social, cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons;
– on the question of work, the circular stated that where it was not possible to equip a prison appropriately, prisoners should have access to premises equipped for this purpose in other prisons, with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be associated with the Mafia;
– visits by children under 16 years of age could take place without a glass partition; if the visit took place in the presence of other persons, the glass partition was to be removed for children only and could not be absent for more than one-sixth of the total time of the visit;
– prisoners subject to the special regime could receive parcels containing foodstuffs except for those requiring cooking, because use of the kitchens was to be limited to making hot drinks or heating pre-cooked food.
2. Relevant provisions concerning the supervision of correspondence
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 the authority with competence to make a decision on the censorship of prisoners’ correspondence is the court before which proceedings are pending (whether the investigating court or the trial court) until the delivery of the first instance judgment, and the court responsible for the execution of sentences during any subsequent proceedings. Section 18 also provides that the court with jurisdiction may order the monitoring of a prisoner’s correspondence in a decision stating reasons, but it does not set out the cases in which such a decision may be made.
In practice, censorship means interception of all the correspondence of a prisoner subject to such an order which is then read by the judicial authority which ordered it, by the governor of the prison or by prison staff designated by the governor. The letters are then marked with the censor’s stamp, which serves as proof that they have been read (see also Article 36 of presidential Decree no. 431 of 29 April 1976, implementing the above-mentioned Law no. 354). This supervisory measure cannot lead to the erasing of words or sentences, but after censorship the judicial authority may order that one or more letters should not be delivered. In such cases, the prisoner must be immediately informed of this. Such an order may also be made provisionally by the governor of the prison, who must however inform the judicial authority.
Lastly, with regard to the remedies available against the measure complained of, the Court of Cassation has stated in several decisions that it constitutes an administrative act. Moreover, the Court of Cassation has affirmed in its settled case-law that Italian law does not provide remedies in this respect; nor can the measure in question form the subject of an appeal on points of law since it does not concern the prisoner’s personal liberty (Court of Cassation: judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992).
Section 35 of the Prison Administration Act provides that prisoners may make sealed applications or complaints to the following authorities :
– the governor of the prison, prison inspectors, the Director-General of Prisons and the Minister of Justice;
– the judge responsible for the execution of sentences;
– the judicial and health authorities which inspect the prison;
– the President of the Regional Council; and
– the President of the Republic.
3. The Report to the Government of Italy relating to the visit made by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) to Italy from 22 October to 6 November 1995 (published on 4 December 1997) (extracts from the press release and the report)
“[During the above-mentioned visit], the CPT delegation had the opportunity to make a detailed examination of the special prison regime for prisoners considered to be the most dangerous and the most important participants in organised crime. This regime, prescribed by section 41 bis of the Prisons Act, is among the harshest that the CPT has come across to date. The prisoners concerned are for long periods of time, indeed for very long periods of time, subjected to a regime which is in many respects similar to one of solitary confinement. They are deprived of any programme of activities worthy of the name and find themselves for the most part cut off from the outside world. In addition, these prisoners are repeatedly transferred. There is no doubt that such a system is capable of provoking harmful effects characterised by often irreversible changes in social attitudes and mental faculties.
The CPT has recommended that urgent measures be taken in order to make motivating activities available to these prisoners and to provide them with appropriate human contact. In addition, it has recommended that the regime as a whole be reviewed. It has difficulty understanding the relationship between the stated aim of this regime – avoiding the re-establishment and/or consolidation of links between the prisoner and the group he belongs to – and some of the restrictions placed on the prisoners concerned (in particular, the total suspension of participation in cultural, recreational and sporting activities; suspension of work; restrictions on visits by family and access to outdoor exercise).
In its report (paragraph 93), the CPT added that ‘careful observation of the system in question may even make one think that one of the unstated aims of the system is to act as a means of psychological pressure designed to provoke dissociation or collaboration’. In that connection, the CPT noted with concern the following statement made by the Italian authorities in the United Nations: ‘Thanks to this special measure [application of section 41 bis], an increasing number of prisoners have decided to cooperate with the judicial authorities by giving information about the criminal organisations to which they used to belong’. Contrary to the stated aim (preventing the re-establishment or consolidation of contacts between the prisoner and the group to which he belongs), the legitimacy of such a second aim would be questionable indeed. It may be useful here to reiterate the general principle that a person is sent to prison as a punishment and that this punishment must be limited to the deprivation of liberty.”
1. Invoking Article 3 of the Convention, the applicant complains of the conditions of his detention.
2. The applicant complains in particular of the restrictions placed on his family visits. He also complains that his correspondence is subject to censorship. He alleges a violation of Article 8 of the Convention.
3. The applicant also complains that he has no effective remedy to challenge the censorship of his correspondence or the decrees prolonging the special prison regime.
The application was introduced on 22 December 1993 and registered on 27 October 1994.
On 25 February 1997, the Commission decided to give notice of the application to the Government, and to invite them to make written observations on the admissibility and merits of the application.
The Government submitted their observations on 15 May 1997, after an extension of the time allowed, and the applicant replied on 8 June 1997.
The Government submitted additional observations on 3 April 1998 and the applicant replied on 22 June 1998.
Since the entry into force of Protocol No. 11 to the Convention, on 1 November 1998, the application has been examined by the Court, pursuant to Article 5 § 2 of that Protocol.
1. The applicant complained first of the conditions of his detention. He relied on Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The Government argued in the first place that the special prison regime contemplated in the second paragraph of section 41 bis was exceptional and was, for that reason, temporary: it could not be extended beyond 1999. It had been introduced after the Mafia had murdered two high-ranking judges and their escort in May 1992.
In addition, it had legitimate aims, that is the protection of public safety and order from a danger emanating from both inside and outside prisons. The special regime was aimed at breaking the links between the person concerned and the criminal environment from which he had originated and made it possible to conduct an effective campaign against organised crime, in particular the Mafia. This regime was applied to persons who had committed one of the offences listed in section 4 bis, and who, according to the information obtained by the police and judicial authorities, played an important role in the criminal organisation, either because they appeared to have maintained their contacts with it or because there was a risk that they might be used by it. On a number of occasions Mafia bosses had continued to communicate with the outside and to transmit orders even when imprisoned. The special regime was currently one of the main instruments available to the Italian authorities in their fight against the Mafia.
The Government noted that the Constitutional Court had found the regime under section 41 bis to be in accordance with the Constitution, provided that the restrictions ordered by the administrative authorities concerned only the prison regime and not the sentence or the personal liberty of the person concerned and that they were already provided for in the Prison Administration Act. In addition, any measure adopted by the administration was open to review in the competent courts.
The fact that this regime had been extended for periods of not more than six months at a time indicated the Italian authorities’ concern to take into account changes in a prisoner’s current situation.
The Government concluded that the regime laid down by section 41 bis did not constitute treatment contrary to Article 3 of the Convention.
The applicant disagreed. He challenged the Government’s argument that the limited duration of each extension of the special regime gave prisoners an additional guarantee, asserting that the special regime was systematically renewed and each decree was based on the same grounds. He submitted that the way in which the special regime was extended – for only six months each time, with the aim of frustrating the use of legal remedies – was vexatious. He emphasised that he had been subject to the special regime for a very long time.
The applicant further argued that, taken as a whole, the restrictions under which he had been placed made his life in prison very difficult. He complained that he had not been able to receive foodstuffs requiring cooking, although the quality and quantity of the food supplied by the prison canteen were unsatisfactory. He complained that he had been unable to participate in recreational and sporting activities and had had only limited access to exercise, without any plausible justification.
The Court notes that 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, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and the context of the treatment as well as its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the person concerned (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162, and the Tyrer v. the United Kingdom judgment of 25 April 1978, Series A no. 26, pp. 14-15, §§ 29-30). From this point of view, it is not enough for certain aspects of the treatment to be unpleasant (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 40, § 107).
The Court notes that complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Dhoest v. Belgium, application no. 10448/83, report of the Commission of 14 May 1987, Decisions and Reports (DR) 55, p. 20, § 117; Hauschildt v. Denmark, application no. 10486/83, decision of the Commission of 9 October 1986, DR 49, p. 97; Kröcher and Möller v. Switzerland, application no. 8463/78, report of the Commission of 16 December 1982, DR 34, pp. 52-53, § 60; McFeeley and Others v. the United Kingdom, application no. 8317/78, decision of the Commission of 15 May 1980, DR 20, p. 82, § 50).
The Court notes firstly that the applicant was not subjected to sensory isolation or total social isolation. On the other hand, he was subjected to a relative social isolation, having been prevented from meeting prisoners subject to different prison regimes, receiving visits from persons other than family members and making telephone calls. However, although his opportunities for contact were therefore limited, one could not speak of isolation in this context.
It is true that all recreational and sporting activities involving contact with other prisoners were prohibited, as was handicraft work in his cell, that access to outdoor exercise was limited and that the right to receive certain foods and objects from the outside was also withdrawn.
The Court notes that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in its report published on 4 December 1997, expressed doubts as to the need for some of the restrictions imposed by these rules (namely, “the total suspension of participation in cultural, recreational and sporting activities; suspension of work; restrictions on ... access to outdoor exercise”) in relation to the aims pursued.
However, in the light of the explanations given by the Government, the Court cannot share these doubts in this case. The applicant was placed under the special regime because of the very serious offences of which he had been convicted or with which he had been charged, in particular crimes linked to the Mafia. He was prohibited from organising cultural, sporting or recreational activities since his encounters with the other prisoners could be used to re-establish contact with criminal organisations. The same was true of access to the exercise yard. The applicant has not established that the Italian authorities’ concerns were unfounded or unreasonable. The continuing danger that the applicant might re-establish contact with criminal organisations was moreover suggested by the fact that between November 1993 and May 1998, the period during which the applicant was subject to the special regime, he had been arrested on suspicion of the murder of a judge, had been sentenced to seventeen years’ imprisonment, and had other proceedings pending against him for membership of Mafia-type organisations.
The Court moreover recognises the practical difficulties arising from the separate organisation of such activities for only one category of prisoners in a prison, and indeed for each prisoner separately.
On the more specific point of the suspension of work, the Court notes that the special regime normally entails only the prohibition of handicrafts requiring the use of dangerous tools and that the applicant does not in fact claim to have been excluded from work altogether. It considers that this partial prohibition was justifiable, since the risks caused by the presence of dangerous tools in a prison’s high-security wing cannot be underestimated.
Moreover, the Court notes that from February 1998 onwards this special regime was eased pursuant to the Constitutional Court’s judgment of 26 November 1997. It emphasises that the circular of 6 February 1998 shows the care taken by the Italian authorities to strike a fair balance between the rights of prisoners subjected to the special regime and the practical problems of the prison authorities vis-à-vis changes to the special regime.
The Court accordingly considers that – in the light of the age and state of health of the applicant, who did not allege that he had suffered any physically or psychologically damaging effects, and as the fact that from 21 May 1998 the section 41 bis prison regime was no longer applied to him – the treatment the applicant complained of did not reach the minimum level of severity for it to fall within the scope of Article 3 of the Convention.
It follows that on this point the application is manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
2. The applicant complained in particular of the restrictions on visits from his family. He further complained that his correspondence was censored. He alleged a violation of Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and 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.”
The applicant complained that he was unable to maintain a satisfactory relationship with his family, that he was allowed to meet his children and grandchild only rarely and that he was separated from them by means of a glass partition, which made these meetings extremely difficult and distressing. He alleged that he had sometimes had to choose between being present at court hearings and meeting his family.
The Government argued that in the light of the considerations mentioned above in relation to Article 3, the regime prescribed by section 41 bis – including the restrictions on family visits – was in accordance with Article 8 of the Convention.
The applicant further alleged that there was no legal basis for the censorship of his correspondence.
The Government argued in the first place that the applicant frequently submitted unsealed letters to the prison authorities for them to be sent out to the addressees, thereby implicitly waiving their confidentiality. Moreover, not all of the applicant’s correspondence had been censored (see, for example, the applicant’s appeal of 21 November 1996 to the Florence court responsible for the execution of sentences).
As to the merits, the Government submitted that on 20 November 1996 the Directorate-General of Criminal Affairs at the Ministry of Justice had asked the Prison Administration Department to take steps to resolve the problem of the censorship of correspondence with the Commission. On 18 April 1997 this Department informed the Ministry of Justice that a proposal to amend section 35 of the Act had been presented with the aim of including the Strasbourg institutions among the authorities to which prisoners could send sealed correspondence.
The Court has examined the arguments of the parties. It finds that on these points the application raises complex questions of fact and law which cannot be resolved at this stage of the examination of the application but require an examination of the merits. Consequently, this part of the application cannot be declared manifestly ill-founded pursuant to Article 35 § 3 of the Convention. The Court notes, moreover, that this complaint is not inadmissible on any other grounds.
3. The applicant complained of the lack of effective remedies for him to challenge application of the section 41 bis regime and the censorship of his correspondence.
Article 13 of the Convention provides :
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The applicant complained in particular of the fact that his appeals against the decrees extending application of the special regime were not examined by the courts responsible for the execution of sentences until several months had elapsed since the dates on which the decrees were issued, although these were only valid for six months.
The applicant further emphasised that he had never obtained a decision from the Court of Cassation, as the decrees had always expired before it examined his appeals on points of law.
The applicant also argued that appeals to the court responsible for the execution of sentences were ineffective in that successive legislative decrees extending the special regime did not take into account previous decisions quashing some of the restrictions.
The Government considered that the applicant had had an effective remedy in the courts responsible for the execution of sentences, a remedy which he had, moreover, used on many occasions, sometimes successfully.
As to the appeals on points of law by the applicant, the Government accepted that these had been declared inadmissible as being devoid of purpose, since the ministerial decrees complained of had expired in the interim. They observed, however, that the right to lodge an appeal on points of law against the decision of the court responsible for the execution of sentences was an additional guarantee which was not essential for the purposes of Article 13 of the Convention.
The Court has examined the arguments of the parties. It finds that on these points the application raises complex questions of fact and law which cannot be resolved at this stage of the examination of the application but require an examination of the merits. Consequently, this part of the application cannot be declared manifestly ill-founded pursuant to Article 35 § 3 of the Convention.
The Court notes, moreover, that this complaint is not inadmissible on any other grounds.
For these reasons, the Court unanimously,
Declares inadmissible the complaint concerning the conditions of detention;
Declares the remainder of the application admissible, without prejudging the merits of the case.
messina v. italy DECISION
Messina v. Italy DECISION