CASE OF MESSINA v. ITALY



      In the case of Messina v. Italy*,

      The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection

of Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court, as a Chamber

composed of the following judges:

      Mr  R. Bernhardt, President,

      Mr  Thór Vilhjálmsson,

      Mr  F. Matscher,

      Mr  L.-E. Pettiti,

      Mr  C. Russo,

      Mr  N. Valticos,

      Mr  S.K. Martens,

      Mrs E. Palm,

      Mr  F. Bigi,

and also of Mr M.-A. Eissen, Registrar,

      Having deliberated in private on 29 October 1992 and

2 February 1993,

      Delivers the following judgment, which was adopted on the

last-mentioned date:

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Notes by the Registrar

* The case is numbered 14/1992/359/433.  The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number).  The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

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PROCEDURE

1.    The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 13 April 1992,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention.  It originated

in an application (no. 13803/88) against the Italian Republic

lodged with the Commission under Article 25 (art. 25) by an

Italian national, Mr Antonio Messina, on 27 October 1987.  Before

the Commission the applicant was designated by the initial "M.",

but he subsequently consented to the disclosure of his identity.

      The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Italy

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46).  The object of the request was to obtain a decision

as to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 para. 1 and

Article 8 (art. 6-1, art. 8).

2.    In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings; the President of

the Court gave him leave to use the Italian language and to

present his own case (Rules 27 para. 3 and 30 para. 1, second

sentence).

3.    On 25 April 1992 the President of the Court decided that,

pursuant to Rule 21 para. 6 and in the interests of the proper

administration of justice, this case and the cases of Pizzetti,

De Micheli, F.M., Salesi, Trevisan and Billi v. Italy* should be

heard by the same Chamber.

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* Cases nos. 8/1992/353/427 to 13/1992/358/432.

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4.    The Chamber to be constituted for this purpose included

ex officio Mr C. Russo, the elected judge of Italian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)).  On the same day,

in the presence of the Registrar, the President drew by lot the

names of the other seven members, namely Mr Thór Vilhjálmsson,

Mr F. Matscher, Mr L.-E. Pettiti, Mr N. Valticos,

Mr S.K. Martens, Mrs E. Palm and Mr F. Bigi (Article 43 in fine

of the Convention and Rule 21 para. 4) (art. 43).

5.    Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Deputy Registrar, consulted

the Agent of the Italian Government ("the Government"), the

Delegate of the Commission and the applicant on the organisation

of the proceedings (Rules 37 para. 1 and 38).  Pursuant to the

order made in consequence, the Registrar received the applicant's

memorial on 3 July 1992.  By a letter of 23 July the Government

stated that they wished to refer the Court to their observations

before the Commission.  The Delegate of the Commission lodged his

written observations on 23 September.

6.    On 26 May the Chamber had decided to dispense with a

hearing, having found that the conditions for such a derogation

from the usual procedure were satisfied (Rules 26 and 38).

7.    On 3 September the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

8.    On 2 October 1992 the Government filed their observations

on the applicant's claims for just satisfaction (Article 50 of

the Convention) (art. 50).

9.    As Mr Ryssdal was unable to attend the deliberations on

29 October, he was replaced as President of the Chamber by

Mr R. Bernhardt, the Vice-President of the Court (Rule 21

para. 5, second sub-paragraph).

AS TO THE FACTS

I.    The particular circumstances of the case

    A.      The criminal proceedings brought against the

            applicant

10.   The applicant, who was charged, on the testimony of an

accused turned informer, with membership of a criminal

organisation of the mafia type and with drugs offences, was

arrested on 18 October 1985 under an arrest warrant issued the

previous day by the investigating judge attached to the Marsala

District Court, which also concerned seven other persons.  The

warrant mentioned two separate sets of proceedings.  According

to the applicant, an investigation was opened on 16 January 1980

in respect of proceedings registered under no. 35/80 and on

7 September 1984 for proceedings filed under no. 235/84.  In

their observations of 30 November 1988 before the Commission, the

Government indicated that the two sets of proceedings had been

joined because of the connection existing between them, but that

the applicant faced no charges in the second set of proceedings.

11.   On 28 June 1990 the public prosecutor at the Marsala

District Court filed his final submissions in regard to the other

accused, but did not express an opinion concerning the applicant.

12.   The investigation has been closed since 8 July 1992; the

case is apparently still pending in the Marsala District Court.

    B.      The applicant's detention and the inspection of his

            correspondence

13.   Mr Messina remained in detention on remand until

25 May 1987.  The investigating judge questioned him

on 23 October 1985 and then at the end of February 1986.

14.   On 18 April 1987 the judge ordered that he be released, as

the maximum permitted period of detention on remand had been

exceeded.  Under his order the applicant was required to lodge

a security of fifty million Italian lire, to reside at Sciacca

(Sicily) and to report every day at 5 p.m. to the police station

to sign the register.

15.   As the applicant had stated that he did not have the sum

demanded, the ensuing verifications resulted in his detention

being extended for one month.  He was released on 25 May 1987.

The requirement concerning the security was lifted.  The other

two conditions remained in force at first, but the investigating

judge revoked them on 30 November 1987 (compulsory residence

order) and 15 October 1988 (daily reporting to the police).

16.   During his detention, Mr Messina had encountered some

problems in connection with the forwarding of his mail.

17.   According to the applicant, he never received the

correspondence which had been sent to him in prison, with the

exception of a letter from his lawyer; this letter was posted in

December 1985, but did not reach him until March 1986.  The

correspondence which had been intercepted allegedly included a

telegram from his wife, which had been sent in April 1987.  The

applicant had, he maintained, on several occasions asked the

investigating judge for his mail to be delivered, but to no

avail.

18.   The Government replied that the applicant's correspondence

had been subject to inspection by the investigating judge from

4 November 1985 onwards.  Without being able to provide further

details, they stressed that the applicant had been officially

informed of this, at the latest, when the first duly approved

letter reached him.

      According to the Government, nine letters addressed to the

applicant or sent by him were submitted for inspection: six

whilst he was in detention at Caltanissetta and three during his

imprisonment at Trapani.

19.   The Commission declared admissible the complaints

concerning the following five items, whose dates do not appear

in the file:

      (a) a letter to the applicant (no. 17655), submitted to

the Marsala investigating judge for approval on 10 November 1985,

approved on a date not recorded in the accompanying document

provided by the Italian Government and returned to Caltanissetta

prison on 29 November;

      (b) a letter to the applicant (no. 20356), submitted for

approval on 21 December 1985, approved on 28 December and

returned to Caltanissetta prison on 2 January 1986;

      (c) a letter to the applicant (no. 6158), submitted for

approval on 5 April 1986; it reached the judge on 10 April 1986,

was approved by him on 12 April and was returned to Caltanissetta

prison on 17 April;

      (d) a postcard addressed to the applicant (no. 9217),

submitted for approval on 2 April 1987; it reached the judge on

6 April, was approved by him on 16 May 1987 and was returned to

Trapani prison on 19 May;

      (e) a telegram to the applicant (no. 11381), submitted for

approval on 24 April 1987 and in respect of which it is not known

when, if at all, it was approved and then returned to Marsala

prison.

20.   The Government affirmed that all the mail submitted for

approval had been delivered to the applicant.  In their

observations of 27 October 1989 to the Commission, they conceded

that the applicant had on several occasions complained in writing

that he had not received the letters sent to him in prison.

II.   The relevant domestic law

21.   In its report the Commission gave a summary of the

legislation applicable in this area:

      "32.  Questions relating to prisoners' correspondence are

      governed by the Prison Rules Act of 26 July 1975

      (no. 354).

      33.   Section 18 of the Act permits prisoners to

      correspond with members of their families and others, even

      in order to transact legal business.

      34.   The correspondence of convicted persons may be

      subject to the approval of the prison governor, or of a

      prison officer designated by the governor, on the basis of

      a decision stating the reasons by the judge responsible

      for the execution of sentence (magistrato di

      sorveglianza).

      35.   For prisoners awaiting trial the decision whether

      to submit their correspondence for approval is a matter

      for the magistrato di sorveglianza in the case of those

      already committed for trial, or the investigating judge

      dealing with the case where the investigation has not been

      completed.

      36.   Under Article 36 of the Act's implementing

      regulation (Presidential Decree no. 431 of 29 April 1976),

      sealed correspondence is subject to inspection designed to

      detect the presence of money or prohibited articles.  This

      inspection must be carried out in such a way that there

      can be no scrutiny of the written content of the

      correspondence.

      37.   When the governor suspects the presence of

      prohibited articles he retains the unopened envelope and

      immediately informs the magistrato di sorveglianza or the

      prosecuting authority so that they can take the necessary

      steps.

      38.   Letters subject to approval, either on the

      initiative of the prison authorities or in accordance with

      the decisions of the competent judicial authorities, may

      be either retained by the judge or forwarded to the

      prisoner.

      39.   When correspondence sent by the prisoner is

      retained, the latter must be informed immediately.

      40.   In addition, under section 35 of the Act prisoners

      may lodge a complaint (reclamo) about the application of

      the rules in a sealed envelope with:

      a) the governor of the prison and/or the inspectors and

      the Director General of Prisons or the Minister of

      Justice,

      b) the magistrato di sorveglianza,

      c) visiting representatives of the judicial and health

      authorities,

      d) the president of the region,

      e) the Head of State."

PROCEEDINGS BEFORE THE COMMISSION

22.   The applicant lodged his application with the Commission

on 27 October 1987.  Relying on Article 5 para. 3, Article 6

para. 1 and Article 8 (art. 5-3, art. 6-1, art. 8) of the

Convention, he complained of the length of his detention on

remand and that of the criminal proceedings brought against him

and of interferences with his right to respect for his

correspondence.

23.   On 4 March 1991 the Commission declared inadmissible for

failure to comply with the six-month time-limit (Article 26

para. 1 in fine of the Convention) (art. 26-1):

      (a) the first complaint; and

      (b) the third complaint in so far as it related to the

decision of the investigating judge of 4 November 1985 ordering

the inspection of Mr Messina's correspondence (see paragraph 18

above) and the belated forwarding of the letter sent to him by

his lawyer in December 1985 (see paragraph 17 above).

      On the other hand, it found the second complaint and the

remainder of the third (see paragraph 19 above) admissible.  In

its report of 20 February 1992 (made under Article 31) (art. 31),

it expressed the unanimous opinion that there had been a

violation of Article 6 para. 1 and of Article 8 (art. 6-1,

art. 8).  The full text of the Commission's report is reproduced

as an annex to this judgment*.

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* Note by the Registrar: for practical reasons this annex will

appear only with the printed version of the judgment

(volume 257-H of Series A of the Publications of the Court), but

a copy of the Commission's report is available from the registry.

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AS TO THE LAW

I.    ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

24.   The applicant alleged that the criminal proceedings

brought against him had not been conducted within a "reasonable

time" as required by Article 6 para. 1 (art. 6-1) of the

Convention, according to which:

      "In the determination of ... any criminal charge against

      him, everyone is entitled to a ... hearing within a

      reasonable time by [a] ... tribunal ..."

      The Government contested this claim, whereas the

Commission accepted it.

25.   The period to be taken into consideration began on

18 October 1985, when Mr Messina was arrested.  It has not yet

ended as the proceedings are still pending in the Marsala

District Court.

26.   The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the

Court's case-law and in the light of the circumstances of the

case, which in this instance call for an overall assessment.

27.   The Government confined themselves to pleading the

complexity of the case, without providing any details on the

purpose, scale and result of the investigations undertaken by the

competent officials.

28.   In view of the nature of the charges preferred against the

applicant, the Court accepts that the judicial authorities must

have encountered some difficulties linked to the number of

persons to be questioned and the number of witnesses to be heard,

as well as to the need for evidence to be taken on commission.

      It cannot however regard as "reasonable" in this instance

a lapse of time which is already more than seven years for

proceedings which have still to be completed.

      There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II.   ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

29.   Mr Messina complained of an interference with his right to

respect for his correspondence, guaranteed under Article 8

(art. 8), according to which:

      "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."

30.   Whether there was in fact "interference by a public

authority" -over and above the requirement of the investigating

judge's approval (see paragraph 23 above) - is a matter of

dispute in this case.  Mr Messina claimed that he had never

received the letters, the post card and the telegram in respect

of which the Commission found the complaint admissible (see

paragraph 19 above), whereas the Government maintained that they

had on the contrary been delivered.  In this regard the present

case is clearly distinguishable from the numerous cases

concerning restrictions on the correspondence of prison inmates

that the Court has had to examine in the past (see, inter alia,

the Silver and Others v. the United Kingdom judgment of

25 March 1983, and the Campbell v. the United Kingdom judgment

of 25 March 1992, Series A nos. 61 and 233).

31.   The Court is thus confronted with a dispute concerning the

exact circumstances of the case rather than a legal problem and

it must reach its decision on the basis of the available

evidence.  The information obtained led the Commission, to which

under the Convention system the establishment and verification

of the facts primarily falls (see, among other authorities, the

Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series

A no. 201, p. 29, para. 74), to give credence to the applicant's

allegations.  At the same time the Government acknowledged that

on several occasions Mr Messina had complained in writing of not

receiving his correspondence (see paragraph 20 above).

      As the Commission emphasised at paragraph 64 of its

report, a Contracting State cannot claim to have discharged its

obligations under Article 8 (art. 8) merely by supplying a record

of a prisoner's incoming mail.  In the absence of documents or

other evidence such as might establish the contrary, the Court

cannot be certain that the items in question reached their

addressee.

      It has accordingly to conclude that there has been a

violation of Article 8 (art. 8).

III.  APPLICATION OF ARTICLE 50 (art. 50)

32.   Under Article 50 (art. 50),

      "If the Court finds that a decision or a measure taken by

      a legal authority or any other authority of a High

      Contracting Party is completely or partially in conflict

      with the obligations arising from the ... Convention, and

      if the internal law of the said Party allows only partial

      reparation to be made for the consequences of this

      decision or measure, the decision of the Court shall, if

      necessary, afford just satisfaction to the injured party."

33.   The applicant claimed three thousand million Italian lire

for pecuniary and non-pecuniary damage.  He cited the

impossibility of leading a normal family life and the feelings

of bitterness and persecution which he had developed as a result

of his problems with the judicial system.

34.   Like the Government and the Commission, the Court observes

that Mr Messina has adduced no evidence of any pecuniary damage

deriving from the violation of Articles 6 para. 1 and 8

(art. 6-1, art. 8).

      It considers, on the other hand and notwithstanding the

contrary opinion of the Government, that the applicant suffered

some non-pecuniary damage, for which the conclusions set out in

paragraphs 28 and 31 above do not constitute sufficient

satisfaction.  It awards him 5,000,000 lire under this head.

35.   The applicant did not seek the reimbursement of costs and

expenses; according to the consistent case-law, this is not a

matter for the Court to examine of its own motion.

FOR THESE REASONS, THE COURT

1.    Holds unanimously that there has been a violation of

      Article 6 para. 1 (art. 6-1);

2.    Holds by seven votes to two that there has been a breach

      of Article 8 (art. 8);

3.    Holds unanimously that the respondent State is to pay to

      the applicant, within three months, 5,000,000 (five

      million) Italian lire for non-pecuniary damage;

4.    Dismisses unanimously the remainder of the claim for just

      satisfaction.

      Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

26 February 1993.

Signed: Rudolf BERNHARDT

        President

Signed: Marc-André EISSEN

        Registrar

      Judges Pettiti and Russo state their dissent with the

majority of the Court as regards point 2 of the operative

provisions of the judgment (Rule 53 para. 2 in fine of the Rules

of Court).

Initialled: R. B.

Initialled: M.-A. E.

 

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