Information Note on the Court’s case-law No. 71
January 2005
Musumeci v. Italy - 33695/96
Judgment 11.1.2005 [Section IV]
Article 6
Civil proceedings
Article 6-1
Access to court
Impossibility for a detainee to contest his placement under a strict monitoring regime (E.I.V.): violation
Civil rights and obligations
Opposition of a detainee to his placement under a strict monitoring regime (E.I.V): Article 6 applicable
Civil rights and obligations
Opposition to restrictive detention measures enforced under a special detention regime: Article 6 applicable
Access to court
Failure by court to comply with statutory time-limit to decide on appeals: violation
Article 8
Article 8-1
Respect for correspondence
Control of prisoner’s correspondence: violation
Facts: While the applicant was detained on remand, the Minister of Justice placed him under the special prison regime provided for in Article 41bis of the Judicial Administration Act, in view of a suspicion that he was at the head of a Mafia-type organisation. In application of that regime, the applicant was subject to restrictive measures, involving in particular the suppression or limitation of visits and contact with other prisoners or people outside the establishment, including members of his family, monitoring of his correspondence, and a series of prohibitions concerning his activities within the prison. Application of the regime was extended systematically at six-month intervals on the basis of ministerial decrees. The Act stated that appeals against those decrees did not have suspensive effect and were to be decided within ten days, but in this case the court pronounced its decisions after that time-limit. In addition, an appeal on points of law lodged by the applicant was dismissed on the ground that the decree’s period of application had expired and that, consequently, the applicant had lost any interest in examination of his appeal. The applicant was convicted of murder. The special prison regime was formally lifted more than four years after the first decree had been issued. The applicant was subsequently informed by his lawyer that he had been placed under the strict monitoring regime (Elevato Indice di Vigilanza: EIV) provided for in a circular of 9 July 1998. This regime was applicable to those prisoners classified as dangerous, on account, inter alia, of their involvement in terrorist crime, the nature or number of offences, escape attempts or acts of serious violence against other prisoners or prison wardens. Prisoners placed under this regime were separated from other prisoners and subject to particularly strict supervision. The applicant challenged the imposition of the EIV regime. The court dismissed his application on the ground that placement under the EIV regime did not amount to a decision to subject a prisoner to a special monitoring regime but was an instance of the authorities’ discretionary power in organising prison life.
Law: Article 6 § 1 right to a tribunal: Effectiveness of proceedings to challenge measures taken in application of the special prison regime – Article 6 § 1 was applicable to the complaints procedure against decrees issued by the Minister of Justice in the context of the special prison regime provided for in Article 41bis of the Judicial Administration Act. The applicant had been the subject of nine decrees and he had challenged each of them; none of the decisions on those appeals had been reached within the statutory time-limit of ten days, but had taken two or three months. Each decree was valid for a limited period of six months and the Minister of Justice was not bound by any decision the court may have taken to rescind all or part of the restrictions imposed by the previous decree. This meant that immediately after the expiry of the period of validity of one such decree he could issue a new decree, reintroducing the restrictions struck down by the court. The systematic failure to comply with the statutory ten-day time-limit had considerably reduced, and indeed practically nullified, the impact of judicial review of the decrees issued by the Minister of Justice. For example, the court had on four occasions rescinded the restrictions on family visits but the tardy nature of those decisions meant that the applicant had suffered those restrictions longer than necessary. In addition, on at least one occasion the Court of Cassation had dismissed the appeal on points of law on the ground that the period of application had expired and that, consequently, the applicant had lost any interest in examination of his appeal. In those circumstances, the action before the court did not constitute an effective remedy and the delay with which the courts had given their decisions had infringed the applicant’s right to have his case heard by a tribunal.
Conclusion: violation (unanimously).
Opportunity to contest the imposition of the strict monitoring regime (EIV) before a court – Article 6 § 1 was applicable to the proceedings through which the applicant had applied for removal of the above regime, in that the limitations on the applicant’s personal freedom arising from imposition of the EIV regime related to civil rights (see the decision in Musumeci v. Italy, no. 33695/96, 17 December 2002). With the exception of complaints concerning prisoners’ work and disciplinary matters, the legislation provided no legal remedy in respect of the prison administration’s actions in this matter. The applicant had not had an opportunity to contest his placement under the EIV regime.
Conclusion: violation (5 votes to 2).
Article 8 (right to respect for one’s correspondence) – Monitoring of the applicant’s correspondence on the basis of Article 18 of the Prison Administration Act was not “in accordance with the law” (see, for example, Messina v. Italy (no. 2), ECHR 2000-X).
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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