CASES OF MESSINA No. 2, GANCI AND BIFULCO AGAINST ITALY

Interim Resolution ResDH(2005)56
concerning the right to an effective remedy against monitoring of prisoners' correspondence and other restrictions imposed on prisoners' rights – general measures

in the cases of Messina No.2 (judgment of 28 September 2000, final on 28 December 2000), Ganci (judgment of 30 October 2003, final on 30 January 2004) and Bifulco (judgment of 8 February 2005,
final on 8 May 2005) against Italy

(Adopted by the Committee of Ministers on 5 July 2005
at the 933rd meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No; 11 (hereinafter referred to as “the Convention”);

Having regard to the judgments of the European Court of Human Rights delivered between September 2000 and February 2005 and transmitted to the Committee of Ministers once they had become final under Articles 44 and 46 of the Convention;

Recalling that the case originated in three applications (Nos. 25498/94, 41576/98 and 60915/00 respectively) lodged against Italy with either the European Commission of Human Rights under former Article 25 of the Convention or the European Court of Human Rights under Article 34 between 22 December 1993 and 25 November 1999 by three Italian nationals;

Recalling that these cases concern:

- a violation of Article 8 of the Convention (in the case of Messina No.2) on the grounds that the interference with correspondence was not “in accordance with the law” as the domestic legislation allowed too wide a latitude in imposing monitoring of correspondence and deciding its duration; and

- violations of Articles 13 or 6 due to the lack of effective domestic remedies or access to a court to challenge restrictions imposed, under Article 41bis of Law 354/1975, through derogations from the ordinary prison regime (such as restrictions to family visits, access to media, etc.);

Stressing that the obligation of all states to abide by the judgments of the European Court of Human Rights in accordance with Article 46, paragraph 1, of the Convention involves an obligation to adopt rapidly general measures to prevent the recurrence of violations similar to those found by the Court;

Recalling that the problem at the basis of the violation of the right to respect of correspondence as guaranteed by Article 8 of the Convention was remedied through a change of legislation in April 2004 (see Final Resolution ResDH(2005)55 concerning Calogero Diana against Italy and other cases);

Noting that the finding of violations of Articles 6 and 13 in the present cases have highlighted three main shortcomings of the effectiveness of the judicial review of the decisions imposing a special penitentiary regime or prolonging such regime or, since the aforementioned April 2004 reform, ordering monitoring of correspondence (see Final Resolution mentioned above):

-the systematic failure by domestic courts to comply with the statutory ten-day time-limit for rendering decisions on applications for judicial review;

-the fact that the Minister of Justice was not bound by any previous judicial decisions when prolonging restrictions;

-the case-law of domestic courts according to which applications for judicial review are inadmissible if the impugned restrictions have expired;

Noting the Court of Cassation's recent case-law (judgment 4599/2004) that affirmed prisoners' right to have their applications for judicial review decided upon even where the restrictions have expired;

Noting furthermore that Law 279/2002 provided that the Minister of Justice must give a specific justification for re-imposing the special penitentiary regime if his previous decision to that effect has been totally or partially quashed in judicial review proceedings;

Noting with satisfaction that these developments have gone a long way towards solving the problems identified by the European Court;

Noting nonetheless with concern that the problem of slowness of this judicial review remains and that the statutory ten-day time limit is systematically not respected by domestic courts, which usually take several months to decide on prisoners' complaints;

Considering that this situation impedes the effectiveness of domestic remedies and recalling, in this connection, the Court's finding that this systematic failure to comply with the statutory time-limit has practically nullified the impact of judicial review of the decisions imposing restrictions on prisoners' rights;

Stressing therefore the need to examine further solutions to this problem so as to prevent new violations of the Convention similar to those here at issue;

Bearing in mind the Committee's Declaration of 12 May 2004 on the long-term effectiveness of the European Court of Human Rights, not least by improving the execution of its judgments, the action plan adopted at the Council of Europe's Third Summit (Warsaw, 16-17 May 2005) and Recommendation Rec(2004)6 to member states on the improvement of domestic remedies;

Noting with interest the Italian authorities' ongoing reflection on setting up reasonable time-limits for judicial review of prisoners' complaints in conformity with the Court's judgments and establishing appropriate procedures ensuring their strict respect by domestic courts;

Noting furthermore, with satisfaction, the government's encouragement of the development of the direct effect of the European Court's judgments in Italy with a view to preventing violations of the Convention,

CALLS UPON the Italian authorities rapidly to adopt the legislative and other measures necessary to ensure prompt and effective judicial review of decisions ordering derogations from the ordinary prison regime or ordering restrictions on prisoners' right to correspondence;

ENCOURAGES all Italian authorities, and in particular the courts, to grant direct effect to the European Court's judgments so as to prevent new violations of the Convention, thus contributing to fulfilling Italy's obligations under Article 46 of the Convention;

DECIDES to resume examination of these cases, within one year at the latest, in order to supervise the progress in implementation of the general measures necessary to comply with the present judgments.

Appendix to Interim Resolution ResDH(2005)56

concerning the right to an effective remedy against monitoring of prisoners' correspondence and other restrictions imposed on prisoners' rights – general measures

in the cases of Messina No.2 (judgment of 28 September 2000, final on 28 December 2000), Ganci (judgment of 30 October 2003, final on 30 January 2004) and Bifulco (judgment of 8 February 2005, final on 8 May 2005) against Italy

Information provided by the Italian Government concerning the appeals against decisions imposing the special penitentiary regime according to Article 41-bis of Law 354/1975 or monitoring of prisoners' correspondence

The government acknowledges the problem of systematic failure to respect of the statutory 10-day time-limit for judicial review of prisoners complaints against imposition of the special prison regime or monitoring of their correspondence.

The main stages of the procedure as it is currently conducted in practice are as follows:

1.The appeal must first be registered at the registry of the detention centre; it may not be lodged directly with the Sentence Execution Court.

2.Upon receipt of the appeal, the Court registry must create a file containing all documents relating to the case.

3.Then a hearing must be scheduled. In practice there must be a certain number of cases to be heard together in order to guarantee the presence of the appellants. As they are appellants in vinculis, either the judges with their assistants must be transported to the detention centre or the detainees must be transported from prison to court. In either case, this implies a burdensome and costly operation: prisoners need to be transported under special escort in secure vehicles. Even a video-conference system, which could replace the physical presence of the detainee, requires specialised equipment and personnel. In conclusion, given the large number of appeals, courts attempt to group hearings so as to satisfy the requirement of justice for all, even though the resources available are not sufficient. Moreover, as there is no time-limit for lodging such appeals, they may always be lodged anew, even if there is nothing new to be challenged.

4.After hearing date has been set, it must be notified to the detainee who must be given a reasonable time (no less than ten days) to prepare his defence.

5.In the course of the hearing, it may be necessary to collect other pieces of evidence, possibly at the initiative of the detainee.

6.Finally, decisions of Sentence Execution Courts must be in writing and reasoned, which naturally requires time.

The discrepancy between the present procedure and the statutory ten-day time-limit provided for by Law 354/1975 for judicial review is evident. This is also confirmed by recent (February 2005) statistics of four Sentence Execution Courts (Ancona, Bologna, Florence and Turin), according to which the duration of this judicial review, in practice, ranges from 45 days to four months.

The government is currently examining (particularly in the context of its general examination of the problem of excessive length of proceedings) different ways in which this problem could be solved. The authorities will seek a reasonable compromise between, on the one hand, the need to respect prisoners' procedural guarantees as described above, and on the other, the requirement of promptness imposed by the Convention. The government has been considering, in particular, setting more reasonable time-limits for judicial review of prisoners' complaints in conformity with the Court's judgments and establishing appropriate procedures to ensure their strict respect by domestic courts.

In the meantime, the Government has noted with great interest the efforts made by a number of courts which increasingly grant direct effect to the Convention and the European Court's judgments (see Final Resolution ResDH(2005)55 in Calogero Diana and other cases) and is confident that all courts will continue this development in accordance with Italy's obligations under the Convention to abide by the judgments (Article 46§1).

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