CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 janvier 2005

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THE FACTS The applicant, Mr Giovanni Bastone, is an Italian national, born in 1943 and currently detained in Sulmona Prison. He was represented before the Court by Mr A. Gaito, a lawyer practising in Rome. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The criminal proceedings On 19 June 1993 the applicant was sentenced by the Trapani Assize Court to twenty-five years and six months’ imprisonment for, among other things, complicity in a homicide in relation to the murder of F.D on 30 July 1981. The public prosecutor and the applicant appealed against the decision. On 3 March 1995 the Palermo Assize Court of Appeal sentenced the applicant to life imprisonment. On 6 December 1995 the Court of Cassation allowed the appeals of the public prosecutor and the applicant, quashed the Assize Court of Appeal’s judgment and referred the case to the Second Section of the Palermo Assize Court of Appeal. In a judgment of 27 September 1997, having held a further hearing and admitted fresh evidence, the court dismissed the applicant’s appeal, allowed the appeal of the public prosecutor in its near entirety and upheld the sentence of life imprisonment. On an appeal by the public prosecutor and the applicant, the Court of Cassation quashed the Assize Court of Appeal’s judgment, chiefly on the ground of lack of reasoning regarding the motive for the crime, the evaluation of certain pieces of evidence and the application of mitigating circumstances. In a judgment of 31 May 2000, after partially reopening the proceedings, admitting fresh evidence and rejecting the applicant’s request for application of the shortened form of procedure ( rito abbreviato ) as being out of time, the Palermo Assize Court of Appeal upheld the sentence of life imprisonment. It held that the applicant’s criminal liability had been proven and that no mitigating circumstances applied. The applicant appealed on points of law, challenging among other things the increase in the sentence and the jurisdiction of the court to which the case had been referred with regard to the reopening of the proceedings. In a judgment of 2 February 2001, deposited with the registry on 19 April 2002, the Court of Cassation dismissed the appeal on the grounds that the Assize Court of Appeal had allowed the appeal of the public prosecutor regarding the question of mitigating circumstances, with the result that an increase in sentence was possible, and that, under settled case-law, the court to which the case had been referred had the same decision-making powers as the court whose decision had been overturned.   2.     Application of the special prison regime The applicant had previously been sentenced by the Turin Assize Court of Appeal to fourteen years’ imprisonment for attempted homicide against the person of F.D. in March 1981. On 29 April 1993, in view of the danger posed by the applicant, the Minister of Justice issued a decree ordering that he be subject for one year to the special prison regime laid down in the second paragraph of section 41 bis of the Prison Administration Act (Law no. 354 of 26 July 1975). This provision, amended by Law no. 356 of 7 August 1992, allows application of the ordinary prison regime to be suspended in whole or in part for reasons of public order and security.   The decree imposed the following restrictions: – limits on visits by family members (a maximum of a single one-hour visit per month); – no meetings with third parties; –     no access to a telephone; –     no sums of money above a fixed amount to be received or sent out; –     only parcels containing clothing to be sent in from outside prison; –     no organisation of cultural, recreational or sports activities; –     no right to vote in elections for prisoners’ representatives or to be elected as a representative; –     no craft activities; –     no food requiring cooking to be purchased; –     a maximum of two hours’ outdoor exercise per day. In judgment no. 376 of 26 November - 5 December 1997 the Constitutional Court reaffirmed that section 41 bis was compatible with the Constitution, while changing and clarifying the interpretation to be given to it. It held, inter alia , that decrees imposing the special regime had to be based on genuine public-order and security grounds, and that decisions to extend application of the regime also had to be based on sufficient grounds which were independent of those which had justified the imposition of the rules in the first place. The Constitutional Court held that the special regime must not amount to inhuman treatment or hinder the prisoner’s rehabilitation, which would be contrary to Article 27 of the Constitution. It also stated that at no time did section 13 of the Prison Administration Act cease to apply, under which the treatment to which a prisoner was subjected must respect his personality and a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner’s personality and with his cooperation. On 20 February 1998, in accordance with the principles laid down by the Constitutional Court in judgment no. 376/1997, the Prison Administration Department of the Ministry of Justice sent a circular letter to prison governors concerning the organisation of the wings where prisoners subject to the special regime are held. This circular included, inter alia , the following instructions: –     outdoor exercise time was to be increased to four hours per day, but care was to be taken to ensure that outdoor exercise did not become an opportunity for meeting or making contact with other persons presumed to be members of the Mafia; –     one or more rooms for social, cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons; –     on the question of work, where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons, with measures in place to exclude any opportunity of meeting or making contact with other persons presumed to be members of the Mafia; –     visits by children under sixteen years of age could take place without a glass partition; if the visit took place in the presence of other persons, partition-free access was to be authorised for the children only and was not to exceed one-sixth of the total duration of the visit. Application of the special regime was extended for successive six-month periods until 4 September 2003. However, the restrictions were relaxed, first on 3 June 1997, when a monthly hour-long telephone call to family members was authorised in place of a visit. Then, on 8 June 1998, the Minister of Justice lifted the restriction on outdoor exercise time. The restriction was, however, reintroduced on 28 December 2002, albeit in a less stringent form, with the Minister limiting the amount of time spent outside the cells to four hours a day, two of which could be spent outdoors. The case-file shows that this regime was applied to the applicant from 29 April 1993 to 4 September 2003. ... COMPLAINTS 1.     The applicant complained under Article 3 of the Convention that, as a result of the application of the special prison regime, he had been subject for a long time to punishment that was inhuman and degrading and in excess of that laid down by the law at the time the offences had been committed. 2.     The applicant complained under Article 8 of the Convention about the continuous restrictions on his right to respect for his family life and his correspondence as a result of the application of the special regime. THE LAW 1.     The applicant argued that the extended application of the special regime under section 41 bis of the Prison Administration Act had resulted in a violation of Article 3 of the Convention, which provides: “No one shall be subjected to ... inhuman or degrading treatment or punishment.” According to the Government, in view of the number of offences of which the applicant had been convicted, the prison administration, in the exercise of its discretionary powers, had deemed it necessary to suspend certain ordinary rules relating in particular to the prisoner’s social contacts, and to restrict visits and telephone calls with his family. The fact that execution of the sentence involved a more restrictive prison regime was justified, they maintained, by the need to maintain order and security and by the level of danger posed by the prisoner. The Government asserted that the restrictions imposed under section 41 bis of the Prison Administration Act were not sufficient to constitute inhuman treatment which, quite rightly, was prohibited under the Italian Constitution, or, in any case, to result in unwarranted limitations on the prisoner’s personal freedom. The applicant, meanwhile, argued that judgments implementing the special regime were extended automatically and without regard to the individual prisoner’s conduct; this amounted to inhuman and degrading treatment within the meaning of Article 3 of the Convention. The Court reiterates that, to fall within the scope of Article 3, the treatment in question must attain a minimum level of severity. The assessment of that minimum level is, in the nature of things, relative, and depends on all the circumstances of the case, and in particular on the nature and context of the treatment, how long it lasted, the physical and mental effects and, in some cases, on the sex, age and state of health of the person concerned (see Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no. 25, p. 65, § 162), and Tyrer v. the United Kingdom , judgment of 25 April 1978, Series A no. 26, pp. 14-15, §§ 29-30). On this basis, it is not sufficient for the treatment to include some unpleasant aspects (see Guzzardi v. Italy , judgment of 6 November 1980, Series A no. 39, p. 40, §   107). The Court reiterates that it has already had occasion to rule on the subject of compatibility of the special regime with Article 3 of the Convention (see Indelicato v. Italy (dec.), no. 31143/96, 6 July 2000). In the instant case, it observes that the applicant was not subjected, as part of the special regime provided for by section 41 bis , to sensory isolation or to complete social isolation. Instead, he was placed in relative social isolation, in that he was not allowed any contact with prisoners being held under a different regime and was prohibited from receiving visits from non-family members and from making telephone calls. While his opportunities for contact were limited, it is not true to say that he was isolated. The Court reiterates that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or for any other reason. However, prohibiting contacts with other prisoners for reasons relating to security, discipline and protection does not in itself amount to a form of inhuman treatment or punishment (see, among others, Messina v. Italy (dec.), no. 25498/94, ECHR 1999-IV, and Dhoest v. Belgium , Decisions and Reports (DR) 55, § 116, p. 5, at p. 20). It is true that in this case the frequency of the applicant’s contacts with his family was also restricted, that he was prohibited from craft activities in his cell and from all recreational and sporting activities involving contact with other prisoners, that his outdoor exercise time was limited and that he was not permitted to receive certain types of food and other items from outside the prison. However, the Court would stress that the applicant was placed under the special regime on the basis of very serious offences, in particular Mafia-related crimes, of which he has already been convicted or still stands accused. He was prohibited from organising cultural, sporting or recreational activities because of concerns that meetings with other prisoners might be used to resume contact with criminal organisations. The same applies to his outdoor exercise rights. The applicant has failed to demonstrate that the Italian authorities’ concerns in this respect were groundless or unreasonable. The Court, moreover, recognises the practical difficulties caused by the organising of such activities for just one section of the prison population, or even for each prisoner individually. With more specific reference to the suspension of work, the Court notes that the ban on craft activities under the special regime normally applies only to activities which involve the use of dangerous tools; indeed, the applicant does not claim to have been subject to a complete ban on working. It considers that the partial ban imposed on him was justifiable in view of the very real risks associated with the presence of dangerous tools in the high-security wing of a prison. Furthermore, the Court notes that the regime was relaxed with effect from February 1998 following implementation of the judgment of the Constitutional Court of 26 November 1997. The circular letter of 20 February 1998 articulates the Italian authorities’ concern to strike a fair balance between the rights of prisoners subject to the special regime and the practical difficulties which changes to the regime present for the prison authorities. The circular letter was designed in particular to extend the amount of time prisoners could spend outside their cells, to increase the time spent in communal activities and to promote contacts with family members (see paragraph 2 of the circumstances of the case, above). Consequently, the Court considers that, in view of the age and state of health of the applicant, who does not claim to have suffered harmful physical or psychological effects, the regime provided for by section 41 bis , which ceased to apply to him on 4 September 2003, did not attain the minimum level of severity required for it to fall within the scope of Article 3 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected under Article 35 § 4 of the Convention. 2.   a)     The applicant complained that the ongoing application of the special prison regime constituted an infringement of his right to respect for his family life under Article 8 of the Convention, which provides: “1.     Everyone has the right to respect for his private and family life, his home and 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.” The Government asserted that measures taken by the Minister of Justice, giving reasons in accordance with section 41 bis, were adopted only after evidence had been heard from the competent judge and information obtained from the specialist investigating authorities. The measure was not renewed automatically; indeed, it had to be revoked once any possibility of further contact on the part of the prisoner with criminal, terrorist or anti-government associations was ruled out. The Government also submitted that the continued application of the special detention measures took account of the specific circumstances of each case. Hence, the authorities were obliged always to keep up to date with prisoners’ circumstances, relating not so much to the acts which had led to their conviction but to subsequent developments – in particular the maintenance of contacts with criminal organisations outside the prison – which were within the prisoner’s power to determine. The applicant, meanwhile, contended that the extended application of the special regime under section 41 bis of the Prison Administration Act had entailed serious sacrifices in terms of his family life, particularly since the regime had been based on the assumption that he continued to have links with the association to which he had belonged twelve or thirteen years previously, rather than on his good conduct during his long years in prison. The Court points out at the outset that any detention which is lawful for the purposes of Article 5 of the Convention is liable to entail restrictions on the private and family life of the person concerned. Moreover, the Convention does not grant prisoners the right to choose their place of detention, and the fact that prisoners are separated from their families, and at some distance from them, is an inevitable consequence of their imprisonment. Nevertheless, detaining an individual in a prison which is so far away from his or her family that visits are made very difficult or even impossible may in some circumstances amount to interference with family life, as the opportunity for family members to visit the prisoner is vital to maintaining family life (see Ospina Vargas v. Italy (dec.), no. 40750/98, 6 April 2000). It is therefore an essential part of prisoners’ right to respect for family life that the prison authorities assist them in maintaining contact with their close family (see Indelicato v. Italy , cited above). In this case the applicant was subject to a special prison regime which involved additional restrictions on the number of family visits (one per month) and imposed measures for the supervision of such visits (prisoners were normally separated from visitors by a glass partition). These restrictions undoubtedly constitute interference with the applicant’s right to respect for his family life, guaranteed by Article 8 § 1 of the Convention. Such interference is not in breach of the Convention if it is “in accordance with the law”, pursues one or more of the legitimate aims contemplated in paragraph 2 of Article 8 and may be regarded as a measure which is “necessary in a democratic society”. The Court notes that the security measures affecting the applicant were ordered under the second paragraph of section 41 bis of Law no. 354 of 1975 and were therefore “in accordance with the law”. They pursued legitimate aims, namely the protection of public safety and the prevention of disorder or crime.     As to the necessity of the interference with the applicant’s right to respect for his family life, the Court reiterates that to be necessary “in a democratic society” the interference must correspond to a pressing social need and, in particular, must remain proportionate to the legitimate aim pursued (see, among other authorities, McLeod v. the United Kingdom, judgment of 23 September 1998, Reports of Judgments and Decisions 1998, § 52, and Indelicato v. Italy , cited above). The Court notes that the regime laid down in section 41 bis is designed to cut the links between the prisoners concerned and their original criminal environment, in order to minimise the risk that they will maintain contact with criminal organisations. In particular, it notes that before the introduction of the special regime imprisoned Mafia members were able to maintain their positions within the criminal organisation, to exchange information with other prisoners and the outside world and to organise and procure the commission of serious crimes both inside and outside their prisons. In that context, the Court takes into account the specific nature of the phenomenon of organised crime, particularly of the Mafia type, in which family relations often play a crucial role. Moreover, numerous States party to the Convention have high-security regimes for dangerous prisoners. These regimes are also based on separation from the prison community, accompanied by tighter supervision. That being the case, the Court considers that the Italian legislature could reasonably consider, in the critical circumstances of the investigations of the Mafia being conducted by the Italian authorities, that the measures complained of were necessary in order to achieve the legitimate aim (see Messina v. Italy ( no. 2 ), no.   25498/94, §§ 66 and 67, ECHR 2000-X) .   The Court still has to consider whether the extended application of the special regime is compatible with the requirement of respect for the rights guaranteed by Article 8 of the Convention. The applicant was subject to that regime from 29 April 1993 to 4 September 2003 because of the very serious offences of which he had been convicted (attempted homicide and complicity in a homicide, which were Mafia-related crimes). The Government submitted that the necessity of extending application of the special regime was on each occasion assessed with the greatest care by the relevant authorities. Moreover, the Court is in no doubt of the necessity of applying the special regime: attempted homicide and complicity in a homicide clearly fall into the category of crimes which justify derogation from the normal conditions of detention within the meaning of paragraph 2 of section 41 bis of Law no. 354 of 1975. The Court notes that the applicant was not subject to the restrictions on family visits laid down by section 41 bis for the whole of the period during which the special regime was applied to him. By a decision of the Minister of Justice of 3 June 1997, the applicant was permitted to make a monthly hour-long telephone call to members of his family, failing a meeting with them. The special regime was subsequently revoked on 4 September 2003. The Court considers that these decisions attest to the Italian authorities’ concern to help the applicant maintain contact with his close family, in so far as that was possible, and thus to strike a fair balance between the applicant’s rights and the aims which the special regime sought to achieve.   In the light of the above considerations, the Court considers that the restrictions of the applicant’s right to respect for his family life did not go beyond what is necessary in a democratic society for the protection of public safety and the prevention of disorder or crime, within the meaning of Article 8 § 2 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously, Declares the remainder of the application inadmissible.