Resolution CM/ResDH(2010)56[1]
Execution of the judgments of the European Court of Human Rights
Guidi and De Pace and Zara against Italy
(Application No. 28320/02, judgment of 27 March 2008, final on 27 June 2008
Application No. 22728/03, judgment of 17 July 2008, final on 1 December 2008
Application No. 24424/03, judgment of 20 January 2009, final on 6 July 2009)
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 judgments transmitted by the Court to the Committee once they had become final;
Recalling that the violations of the Convention found by the Court in these cases concern the arbitrary monitoring of prisoners’ correspondence up to February 2007, deriving from a lack of a clear legal framewok (until April 2004) and from non compliance with the new legislation (after April 2004) (violations 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, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgments (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)56
Information on the measures taken to comply with the judgments in the cases of
Guidi and De Pace and Zara against Italy
Introductory case summary
These cases concern the arbitrary monitoring of part of the correspondence of the applicants life prisoners, from January 2003 to May 2004 (De Pace), from October 2003 to June 2005 (Guidi) and from November 2002 to February 2007 (Zara) (violations of Article 8). The applicants, subject to the special prison regime provided by Article 41bis of the Prisons Act applicable to prisoners convicted of offences linked with the mafia, were subject to restrictions inter alia with respect to correspondence.
Letters sent by the applicants to the Court or which they received from the Court were in particular subject to arbitrary monitoring, as well as letters to lawyers and from relatives.
The European Court found that the censorship of the applicants’ correspondence before April 2004 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. As regards censorship after April 2004, the Court noted the entry into force of Act No. 95/2004 (adding Article 18 ter to the Law on Prison Administration), modifying the previous legislation and providing a clearer legal framework for the monitoring of correspondence. However, in the case of Guidi, the Court observed that “the modifications to the Law on Prison Administration do not make it possible to remedy violations which occurred before they entered into force and that moreover, despite their entry into force, the applicant’s correspondence with the Court has nonetheless been monitored” (§ 55 of the judgment). Furthermore, in the Zara case, the Court found that the monitoring of correspondence between the applicant and the lawyer representing him before the Court was not in compliance with national legislation, as modified in 2004, which prohibits censorship of this kind of correspondence (§ 34 of the judgment).
I.Payments of just satisfaction and individual measures
a) Details of just satisfaction
Name and application number
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
Guidi (28320/02)
-
-
-
-
-
De Pace (22728/03)
-
-
3 000 €
3 000 €
Paid on 06/02/2009
Zara (24424/03)
-
-
1 000 €
1 000 €
Paid on 22/09/2009
b) Individual measures
The European Court considered that the finding of a violation constituted 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 applicants (Guidi, §64; De Pace, §67, Zara, §42). As regards possible new, similar violations in respect of the applicants, reference should be made to the general measures adopted by the Italian authorities.
II.General measures
The legal problems found by the Court concerning the legislation prior to April 2004 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 is limited to 6 months (extensible 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).
Despite this new legislative framework, the continuation of censorship after April 2004 up to 2007 in some of these cases cast doubt on its proper application.
To raise awareness and prevent similar violations, the Ministry of Justice translated the judgment of the European Court in the Guidi case into Italian and sent it out to the competent courts. Furthermore, the Prison Administration Department sent several circulars to the directors of Italian prisons, recalling the basic rules on monitoring of correspondence and the need to comply with the legal framework provided by Act No. 95/2004. All the judgments have also been published in the database of the Court of Cassation on the case-law of the European Court of Human Rights (). This website is widely used by all those who practice law in Italy: civil servants, lawyers, prosecutors and judges alike.
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 applicants 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 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
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