Lungaggini della giustizia e diritti dei detenuti, nuovo sollecito all'Italia

Il Comitato dei Ministri prende atto dei miglioramenti ma li ritiene ancora insufficienti e non conformi all'impegno promesso da Roma. Ora vigilerà sull'esecuzione di alcune sentenze di Strasburgo

Gli sforzi italiani per risolvere il problema struttturale del sistema giudiziario, quello delle lungaggini insopportabili più volte condannate dai giudici di Strasburgo , vengono riconosciuti dal Consiglio d'Europa - che ha esaminato il quarto rapporto annuale inviato da Roma - ma non bastano a risolvere concretamente il problema, almeno per ora. E dunque occorrono sforzi supplementari per ottenere risultati più concludenti tali da dimostrare che l'Italia intende effettivamente mantenere gli impegni assunti in proposito. Intanto il Comitato dei Ministri del Consiglio d'Europa ha adottato due risoluzioni qui leggibili, in lingua inglese, come documenti correlati una interinale e l'altra finale relative all'esecuzione da parte dell'Italia di complessive dieci sentenze della Corte dei Diritti dell'uomo. Nel caso inerente tre pronunce su ricorsi giunti a Strasburgo e conclusi Bifulco, Ganci e Messina IIa viene ulteriormente sottolineata l'inefficacia della protezione giudiziaria sul controllo della corrispondenza dei detenuti, nonché altre avvenute violazioni dei loro diritti. Nella risoluzione finale, riguardante sette casi Diana, Di Giovine, Domenichini, Madonia, Messina IIIa, Natoli e Rinzivillo , viene definita la supervisione del Comitato, in conformità alla Convenzione europea per la salvaguardia dei Diritti dell'uomo e delle libertà fondamentali, sui provvedimenti necessari che lo Stato condannato dovrà adottare per garantire ai ricorrenti - le cui doglianze sono state riscontrate dalla Corte di Strasburgo - una riparazione adeguata delle violazioni subite e per prevenire il ripetersi di analoghe infrazioni. Tuttavia, nel ricordare che la sistematica violazione da parte dei Tribunali nazionali dei termini che la legge prevede per i ricorsi ha di fatto vanificato l'impatto del controllo giudiziario sui diritti dei detenuti, il Comitato ha preso nota con interesse della riflessione in corso in Italia, volta a trovare soluzioni conformi alle sentenze della Corte . Ed ha anche constatato le migliorie apportate dalla Legge 95/2004 relativamente alla chiarezza sulle circostanze di ammissibilità dei controlli sulla corrispondenza e sul fatto che tali misure devono prevedere un termine. Ma ha anche preso atto della difficoltà di valutare correttamente i progressi in effetti realizzati dall'Italia a causa di alcune incoerenze nelle statistiche fornite ed ha suggerito un monitoraggio più sistematico e chiaro dell'efficacia della giustizia interna. Quanto alle decisioni interne che impongono restrizioni ai diritti dei detenuti, il Comitato ha rivolto un appello all'Italia affinchè siano adottati nel più breve tempo possibile i necessari provvedimenti - di carattere legislativo e no - per assicurarne un controllo giudiziario rapido ed efficace. L'organo del Consiglio d'Europa ha inoltre raccomandato alle autorità italiane di assicurare una sempre maggiore efficacia diretta delle sentenze della Corte dei Diritti in modo da prevenire ulteriori violazioni della Cedu, adempiendo così gli obblighi che Roma ha assunto secondo l'articolo 46 della Convenzione stessa.

Council of Europe - Committee of ministers European Court of Human Rights Case of Calogero Diana and 6 other cases Resolution no 55/2005 5 July 2005 The Committee of Ministers, under the terms of former Article 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 46, paragraph 2 of the Convention as amended by Protocol No. 11 referred to hereinafter as the Convention Having regard to the judgments of the European Court of Human Rights, in the Calogero Diana case and six other cases see details in Appendix II transmitted to the Committee of Ministers under former Article 54 and Article 44 and 46 of the Convention Recalling that all these cases originated in applications lodged with either the European Commission of Human Rights under former Article 25 or the European Court of Human Rights under Article 34 against Italy and that the European Commission of Human Rights or the European Court of Human Rights declared admissible the applicants' complaints relating to violations by Italy of Article 8 and/or Articles 6, paragraph 3b or 13 of the Convention on account of non-respect of prisoners' right to respect for their correspondence and/or the lack of effective domestic remedies to challenge the monitoring of correspondence Recalling that the European Court held - that there had been violations of Article 8 of the Convention in all these cases due to shortcomings in the Italian Law No. 354/1975 on the administration of prisons which allowed too much latitude with regard to the imposition of monitoring of correspondence and decisions on its duration and did not explicitly prohibit the monitoring of correspondence with the Convention organs - that in two of these cases Calogero Diana and Domenichini there had been violations of Article 13 due to the lack of effective remedy against the decisions ordering monitoring of prisoners' correspondence - that in the Domenichini case there had been a violation of Article 6, paragraph 3b, on account of the monitoring of the applicant's correspondence with his defence counsel which adversely affected the applicant's defence rights Recalling that, in the Natoli case, the Court held that the respondent state was to pay the applicant's lawyers 4 000 000 Italian lira for costs and expenses, deducting from this sum 6,100 French francs which had been awarded as legal aid by the Council of Europe and that no just satisfaction was to be paid in the other cases Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention, as amended by Protocol No. 11, which are also applicable by decision of the Committee of Ministers to cases under former Article 54 Having invited the Government of Italy to inform it of the measures which had been taken in consequence of the European Court's judgments, having regard to Italy's obligation under Article 46, paragraph 1, of the Convention former Article 53 to abide by them Recalling its Interim Resolution ResDH 2001 178 of 5 December 2001 in which the Committee noted the legislative work begun in 1997 to give effect to the European Court's judgments and expressed its satisfaction at the interim measures taken awaiting the finalisation of this work Recalling that in that Interim Resolution, the Committee of Ministers also noted that the draft law could not be adopted before the change of legislature in April 2001 and consequently urged the authorities to resume the legislative work quickly so as to ensure that Italian law on monitoring prisoners' correspondence, including the right to an effective remedy, fully complied with the Convention Noting with concern the time taken before this legislative reform was brought to a conclusion, in April 2004, i.e. more than seven years from the Court's judgments Noting, however, with satisfaction the content of the reform as referred to by the Italian government and reproduced in Appendix I to this Resolution, including - the introduction into the legislation of clear grounds for imposing monitoring or restriction of prisoners' correspondence and of time-limits for such measures - legislative confirmation that correspondence with the Convention organs is exempt from monitoring - administrative measures to ensure effective implementation of the new legislative provisions - the extension of judicial review to cover the monitoring or restriction of prisoners' correspondence Having noted, however, that the effectiveness of this judicial review has recently been challenged in judgments of the Court and that the authorities are currently considering this new problem so as to ensure compliance with the Convention's requirements see Interim Resolution ResDH 2005 56 in Messina No. 2 against. Italy, judgment of 28 September 2000, Ganci against Italy, judgment of 30 October 2003 and Bifulco against Italy, judgment of 8 February 2005, final on 8 May 2005 and considering that examination of this issue is best pursued in the context of its control of the execution of these new judgments Recalling, in this context, the Committee's Declaration of 12 May 2004 on ensuring the long-term effectiveness of the European Court of Human Rights, not least by improving the execution of its judgments, and Recommendation Rec 2004 6 to member states on the improvement of domestic remedies Having satisfied itself that the just satisfaction awarded in the Natoli case was paid to the applicant's lawyers on 8 November 2001, that is, six months and twenty-nine days after the time-limit set but that the applicants waived their right to the minimal default interests involved Declares that it has exercised its functions under former Article 54 and Article 46, paragraph 2, of the Convention in these cases. Appendix I to Resolution ResDH 2005 55 Information provided by the Government of Italy concerning the general measures taken to comply with the European Court's judgments Introduction 1. Following these judgments of the European Court, in 1997 the Italian government engaged in legislative and regulatory reforms to prevent new violations similar to those found by the Court in these cases. In Interim Resolution ResDH 2001 178 of 5 December 2001, the Committee of Ministers took stock of the measures taken or planned by Italy to date and urged Italy rapidly to adopt the legislative reform required to ensure that domestic law complied fully with the Convention. Since the adoption of the Interim Resolution the following general measures have been adopted I. New legal framework for monitoring of correspondence a. General 2. In April 2004 the legislation on prison administration was amended by Law 95/2004 in force as from 15 April 2004 . 3. New Article 18-ter Restrictions and control of correspondence , added to Law 354/1975, has laid down clear substantive and time limitations to the monitoring or restriction of detainees' correspondence. Such measures may henceforth be imposed only if necessary for the investigation or prevention of felonies, or for reasons of security or order in the prison Article 18-ter, paragraph 1 . 4. According to the new provision, the duration of these measures may not exceed six months but may subsequently be extended for periods of up to three months. The following restrictions or control may take place a Restrictions of the correspondence by letter or telegrams and of receipt of press articles b Visas on all correspondence c Control of the content of envelopes received or sent without reading it. 5. These measures may be adopted by a reasoned judicial decree as already provided in the previous text at the request of a public prosecutor or following a proposal by the director of the penitentiary institution. This decree is issued by the supervising judge for persons detained pursuant to their conviction, or those already found guilty at first instance. The decree may be issued by the judge referred to in Article 279 of the Code of Criminal Procedure, for indicted persons, until the delivery of a judgment at first instance. If the judge is a member of the bench, the measure is adopted by the president of the court or of the assize court. The monitoring of correspondence may be delegated by these members of the judiciary to the director or a member of staff of the penitentiary institution designated by the director Article 18-ter, paragraphs 3-4 . 6. If, after a control visa, the judge deems that correspondence or newspapers should not be handed back or forwarded to the addressee, they should order their retention. In all these cases the detainee is informed accordingly Article 18-ter, paragraph 5 . 7. As regards the time taken to execute these judgments, the Government wishes to indicate that the question of ensuring rapid responses to violations found by the European Court is currently being studied, in particular by the Italian Parliament, and has so far led to the adoption of a resolution and the presentation of a Bill on the follow-up to judgments of the European Court. b. Exemption from monitoring of correspondence with defence counsel and the European Convention organs 8. Article 18-ter, paragraph 2, of the new Law confirms Article 38, paragraph 11, of presidential decree 230/2000, which exempted from monitoring or restriction the detainees' correspondence, inter alia, with the European Convention organs. 9. By express reference to Article 103 of the Code of Criminal Procedure, it also confirmed the exemption from monitoring of the correspondence with their defence counsel, provided that the correspondence is recognisable as such. This exemption, however, was already enshrined in Article 103 of the Code, in force since 1989, but was not effectively applied in practice, resulting in violations of the Convention violations of Article 8 in Natoli and Madonia . The Italian authorities therefore decided to adopt additional administrative measures to ensure that the newly adopted provisions were effectively implemented in practice see summary of Ministry of Justice circulars below . c. Implementation of the legislation by Ministry of Justice circulars 10. On 1 July 2004 the Prison Administration Department of the Ministry of Justice issued a circular entitled Visa controlling detainees' correspondence - Law No 95 of 8 April 2004 . This circular stressed that the main object of Article 18-ter of Law 95/2004 is to safeguard detainees' privacy, as well as to guarantee the efficient administration and organisation of prisons where order, security and discipline are necessary. Moreover, the circular laid down three basic rules regarding monitoring of correspondence 1 The envelope or cover of the correspondence should be examined with the aid of instruments or trained dogs 2 If a letter or parcel raises suspicions relating to the order or security of the prison, it should be set aside while authorisation is awaited for further inspection from the competent authority 3 Such correspondence should only be opened in the presence of the detainee as prescribed by Article 18-ter, paragraphs 1c and 7 of Law 95/2004 to whom it should be returned if it is cleared after inspection. 11. On 3 May 2005 the Prison Administration Department of the Ministry of Justice issued a second circular, entitled Visa controlling correspondence - European Convention on Human Rights . This circular, aimed at bringing practice relating to correspondence monitoring fully into line with the judgments of the European Court of Human Rights, laid down or reiterated the following rules among others a the prison officer responsible for monitoring correspondence on arrival or on departure shall affix to the correspondence not only a stamp but also the date of control, so that the time of original control may be identified at any time b all prison directors should keep their monitoring register books updated, as prescribed by the circular of 14 March 1994 c as regards detainees subject to the special regime of Article 41 bis of Law 354/1975, the application to the judge for time extension of the decree authorising censorship of correspondence after the expiry of the initial six months, should be accompanied by the phrase for the three successive months , excluding, thus, any further continuation of the censorship. This will clarify the difference of duration between the regime of Article 41 bis and the censorship of correspondence under Article 18-ter. 12. In addition, this circular expressly referred to the European Court's judgments, including the one in the Domenichini case where a violation of Article 6, paragraph 3 b , was found on account of monitoring the applicant's correspondence with his defence counsel. The circular drew the competent authorities' attention to the fact that the modalities and limits of correspondence monitoring are now clearly set by Article 18-ter of Law 354/1975, introduced by Law 95/2004, in accordance, inter alia, with this judgment of the European Court. The circular reiterated that detainees' correspondence addressed to international organisations for the protection of human rights, including the European Court of Human Rights, is exempt from monitoring. II. Ensuring the existence of effective domestic remedies 13. In the Calogero Diana and Domenichini judgments, the impugned restrictions or monitoring of correspondence were already imposed by judicial authorities acting, however, in an administrative capacity see paragraphs 12 and 42 of the Domenichini judgment and the violation of Article 13 of the Convention was due to the impossibility of challenging the decisions before an independent authority. Following the Court's judgments, the government has engaged in legislative reform to set up, inter alia, domestic remedies to challenge such decisions, in line with the requirements of Article 13. In 1999 the government presented to Parliament a Bill amending Articles 18 and 35 of Law 354/1975 both circumscribing the power to monitor prisoners' correspondence and introducing domestic remedies. However, these amendments were not adopted due to the change of legislature in April 2001. 14. The Law 95/2004 mentioned above now explicitly allows judicial review of decisions imposing monitoring or restriction on prisoners' correspondence new Art. 18-ter, paragraph 6, of Law 354/1975, in conjunction with pre-existing Article 14-ter of Law 354/1975 . The complaints, which have no suspensive effect, may be lodged within a time-limit of 10 days from notification of the measure. The supervising court should issue an order within 10 days from receipt of the complaint. The judge responsible for issuing the impugned decision regarding monitoring of correspondence may not sit on the bench deciding on the complaint. 15. Examples of domestic courts granting prisoners' complaints and annulling restrictions on their correspondence by reference to the new law and to the European Court's judgments have been presented to the Committee of Ministers. As the most recent example, the Sentence Execution Court of Turin quashed a decision extending the monitoring of a prisoner's correspondence on the ground that the impugned decision lacked detailed reasoning as required by law, as well as by the established case-law of the European Court of Human Rights decision 1900/05 of 11 May 2005 . 16.The government finds that this decision is indicative of the increasing willingness of Italian courts to implement domestic law in the light of the Convention's requirements as set out in the European Court's judgments. The government strongly encourages these developments, which effectively contribute to fulfilling Italy's obligation to abide by the European Court's judgments. 17.While acknowledging that some problems still exist regarding length of proceedings, the government considers that the new remedy will prevent new violations of Article 13 of the Convention similar to those found in the present cases. In this context, the government will not fail to take into account the Committee of Ministers' Recommendation Rec 2004 6 on the improvement of domestic remedies. Appendix II to Resolution ResDH 2005 55 Details concerning applications, judgments and violations found by the European Court Case Application Date of judgment Diana Calogero 15211/89 15/11/1996 Domenichini Massimo 15943/90 15/11/1996 Rinzivillo Antonio 31543/96 21/12/2000 final on 21/03/2001 Natoli Vincenzo 26161/95 09/01/2001 Di Giovine Emilio 39920/98 26/07/2001 final on 26/10/2001 Madonia Antonio 55927/00 06/07/2001 final on 06/10/2001 Messina Antonio No 3 33993/96 24/10/2002 final on 21/05/2003

Council of Europe - Committee of ministers European Court of Human Rights Case of Messina and other cases Resolution no 56/2005 5 July 2005 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 The appeal must first be registered at the registry of the detention centre it may not be lodged directly with the Sentence Execution Court. Upon receipt of the appeal, the Court registry must create a file containing all documents relating to the case. 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. 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. In the course of the hearing, it may be necessary to collect other pieces of evidence, possibly at the initiative of the detainee. 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 . 4