Resolution CM/ResDH(2010)201[1]
Execution of the judgment of the European Court of Human Rights
Bagarella against Italy
(Application No. 15625/04, judgment of 15 January 2008, final on 7 July 2008)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns the arbitrary monitoring of a prisoner’s correspondence up to 2004, deriving from a lack of a clear legal framewok (violation of Article 8) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and
DECIDES to close the examination of these cases.
Appendix to Resolution CM/ResDH(2010)201
Information on the measures taken to comply with the judgment in the case of
Bagarella against Italy
Introductory case summary
This case concerns the arbitrary monitoring of part of the applicant’s correspondence while in prison, up to 2004 (violation of Article 8). The applicant, subject to the special prison regime provided by Article 41bis of the Prisons Act applicable to prisoners convicted of offences linked with the Mafia, was subjected to restrictions inter alia with respect to correspondence.
The European Court found that the censorship of the applicant’s correspondence was not provided by the law in force at the material time, insofar as the law fixed neither the duration of the control of the correspondence nor the reasons required to justify it. In addition, the relevant regulation failed to indicate with sufficient clarity the extent and the terms of the exercise by the competent authorities of their power to evaluate. The Court noted the entry into force of Act No. 95/2004 (adding Article 18 ter to the Law on Prison Administration, see below), modifying the previous legislation and providing a clearer legal framework for the monitoring of correspondence: however, it observed that this law does not make it possible to remedy violations which occurred before it entered into force (§54 of the judgment).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
-
-
4 000 EUR
4 000 EUR
Paid on 19/12/2008
The just satisfaction has been paid in conditions apparently accepted by the applicant.
b) Individual measures
The European Court considered that the finding of a violation constituted sufficient just satisfaction in respect of the non-pecuniary damages suffered. Furthermore, the Court found no link between the violations and pecuniary damages claimed by the applicant (§59 of the judgment). As regards new, similar violations in respect of the applicant, reference should be made to the general measures adopted by the Italian authorities.
II.General measures
The legal problems found by the Court were remedied through the introduction in April 2004 of Article 18 ter of the Law on Prison Administration (see Resolution ResDH(2005)55 adopted on 05/07/2005, closing supervision of the cases of Calogero Diana and others). In particular, limits to the monitoring of detainees’ correspondence were introduced: the length of monitoring cannot go beyond a 6-month time limit (extendable by up to 3 months) and correspondence with lawyers and international organisations for the protection of human rights cannot be subject to monitoring. Furthermore, any limitations to correspondence are ordered by the judge with a motivated decree, which can be appealed (reclamo).
III.Conclusions of the respondent state
The government considers that no individual measure was required in these cases, apart from the payment of the just satisfaction awarded to the applicant by the Court, that the general measures adopted will prevent similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.
[1] Adopted by the Committee of Ministers on 2 December 2010 at the 1100th meeting of the Ministers’ Deputies
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