CEDH · PRESS;GCJUDGMENTS;ENG — 6 avril 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s4954B46 { margin-top:0pt; margin-bottom:0pt; text-indent:28.35pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s21B97EC1 { width:25.99pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sE0EA7154 { width:21.33pt; display:inline-block } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s9782B425 { width:22.01pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s5E15F1C8 { width:0.33pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     256   6.4.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF LABITA v. ITALY     In a judgment delivered at Strasbourg on 6 April 2000 in the case of Labita v. Italy, the European Court of Human Rights held:   by nine votes to eight that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights as regards the applicant’s allegations of ill-treatment in Pianosa Prison; unanimously that there had been a violation of Article 3 of the Convention in that no effective official investigation into those allegations was held; unanimously that there had been no violation of Article 3 of the Convention on account of the conditions of transfer from Pianosa Prison; unanimously that the applicant could claim to be a “victim” for the purposes of Article 34 of the Convention as regards the length of his pre-trial detention; unanimously that there had been a violation of Article 5 ( right to liberty and security) § 3 of the Convention on account of the length of detention pending trial; that there had been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention after 12.25 a.m. on 13 November 1994; unanimously that there had been a violation of Article 8 (right to respect for family life) of the Convention on account of the censorship of the applicant’s correspondence; unanimously that it was unnecessary to examine the issue of censorship of the applicant’s correspondence with his lawyers under Article 6 § 3 (right to a fair trial) of the Convention; unanimously that there had been a violation of Article 2 of Protocol No. 4 (freedom of movement) on account of the preventive measures imposed on the applicant; unanimously that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) on account of the applicant’s disenfranchisement;   Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant   75,000,000 Italian lire (ITL) for non-pecuniary damage and ITL 6,000,000 for legal costs and expenses incurred at the hearing before the Court.   1.   Principal facts   The applicant, Benedetto Labita, an Italian national, was born in 1955 and lives at Alcamo (Italy).   Mr Labita was arrested on 21 April 1992 on suspicion of being a member of the Mafia, following uncorroborated allegations by a former Mafioso who had decided to cooperate with the authorities. The applicant was held in detention pending trial for approximately two years and seven months, in Pianosa Prison in particular, where he alleged that he was subjected to ill-treatment that was, he said, systematically inflicted on prisoners. That allegation was supported in a report by a judge. A criminal investigation was opened but subsequently abandoned as it was impossible to identify those responsible for the ill-treatment. The applicant was subjected to a special regime entailing censorship of all his correspondence. He was later acquitted, the verdict being delivered late in the evening of 12 November 1994. However, he was not released until the following morning owing to the absence of the relevant prison official. Following his acquittal, preventive measures were imposed on him (curfew from 8 p.m. to 6 a.m., weekly reporting to the police) and he was deprived of his voting rights.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 10 April 1994. Having declared the application admissible, the Commission adopted a report on 29   October 1998 in which it expressed the opinion that there had been a violation of Articles   3, 8, and 5 §§ 3 and 1 of the Convention (unanimously), Article 2 of Protocol No. 4 to the Convention (21 votes to 7), and Article 3 of Protocol No. 1 (23 votes to 5). It referred the case to the Court on 6 March 1999. The Italian Government also brought the case before the Court on 31 March 1999. A hearing was held on 29 September 1999. Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Elisabeth Palm (Swedish), Antonio Pastor Ridruejo (Spanish), Luigi Ferrari Bravo [1] (Italian), Giovanni Bonello (Maltese), Jerzy Makarczyk (Polish), Pranas Kūris (Lithuanian), Jean-Paul Costa (French), Françoise Tulkens (Belgian), Viera Strážnická (Slovakian), Marc Fischbach (Luxemburger), Volodymyr Butkevych (Ukrainian), Josep Casadevall (Andorran), Hanne Sophie Greve (Norwegian), András Baka (Hungarian), Rait Maruste (Estonian), Snejana Botoucharova (Bulgarian), Judges ,   and also Paul Mahoney , Deputy Registrar .   3.   Summary of the judgment [2]   Complaints   The applicant complained of inhuman and degrading treatment allegedly suffered while in detention contrary to Article 3 of the European Convention on Human Rights; the length and lawfulness of his detention (Article 5 §§ 1 and 3); censorship of his private correspondence and correspondence with his lawyer (Articles 8 and 6 § 3); preventive measures that were imposed on him after his acquittal (Article 2 of Protocol   No. 4); and the loss of his voting rights as a result of the imposition of the preventive measures (Article 3 of Protocol No. 1).   Decision of the Court   Article 3 of the Convention   (a)   Allegations of ill-treatment   The Court noted that the applicant had not produced any conclusive evidence or supplied a detailed account of the abuse to which the warders at Pianosa Prison had allegedly subjected him. While recognising that it could prove difficult for prisoners to obtain evidence of ill-treatment by their prison warders, the Court observed that the applicant – who had not suggested, for example, that he had ever been refused permission to see a doctor – had taken more than a year to complain about his treatment, without offering any plausible explanation for that delay and notwithstanding the fact that he had made several applications through his lawyers to the judicial authorities shortly after the ill-treatment concerned had diminished or ceased. Consequently, despite the existence of objective evidence regarding the general conditions in Pianosa Prison at the material time, the Court considered that the material it had before it regarding the applicant’s assertion that he had been subjected to physical and mental ill-treatment in Pianosa Prison did not constitute sufficient evidence to support that conclusion. There had therefore been no violation of Article 3 on that account.   (b)   The investigations into the allegations of ill-treatment   The Court observed that, when taken together, the statements made by the applicant to the authorities had given reasonable cause for suspecting that he had been subjected to improper treatment in Pianosa Prison, especially as that the conditions of detention at Pianosa had been the centre of media attention during the period concerned and other prisoners had complained of treatment similar to that described by the applicant. The investigations were, however, very slow and not sufficiently effective: it took the authorities fourteen months to obtain photocopies (not prints) of photographs of the warders who had worked at Pianosa. Throughout that period the applicant remained a prisoner there. Moreover, although the applicant had twice said that he would be able to recognise the warders concerned if he could see them in person, nothing was done to enable him to do so and, just nine days later, the public prosecutor’s office had sought and been granted an order for the case to be filed away on the ground not that there was no basis to the allegations but that those responsible had not been identified. In those circumstances, having regard to the lack of a thorough and effective investigation into the credible allegation made by the applicant that he had been ill-treated by warders while detained at Pianosa Prison, the Court held that there had been a violation of Article 3 of the Convention.   (c)   The transfers from Pianosa   As the applicant had not supplied detailed information regarding the number of times he had been transferred from Pianosa or the dates and precise conditions of such transfers, and as he had not complained about the conditions of transfer to the relevant authorities, the Court considered that there was insufficient evidence for it to conclude that there had been a violation of Article 3 on that account.   Article 5 § 3 of the Convention   (a)   Whether the applicant had standing as a victim   The applicant had been awarded compensation by the domestic courts on account of the time he had spent in detention pending trial; however, he had been entitled to that compensation automatically, as a result of his acquittal. While it was true that the length of the applicant’s detention pending trial had been taken into account in calculating the amount of reparation, there had been no acknowledgement, either express or implied, that it had been excessive. The applicant could accordingly still claim to be a “victim” within the meaning of Article 34 of the Convention of a violation of Article 5 § 3.   (b)   Length of the detention   The period of detention pending trial was two years and seven months. The relevant authorities had examined whether the applicant should remain in detention on three occasions and, in refusing to release him, had relied simultaneously on the existence of serious evidence of his guilt, the danger of pressure being brought to bear on witnesses and the risk of evidence being tampered with. They had also relied on the presumption created by Article 275 § 3 of the Code of Criminal Procedure. In the case before it, the allegations against the applicant had come from a single source, a pentito who had stated that he had learned indirectly that the applicant was a member of the Mafia.   The Court was conscious of the fact that the cooperation of pentiti was a very important weapon in the Italian authorities’ fight against the Mafia. However, the use of statements by pentiti gave rise to difficult problems as, by their very nature, such statements were open to manipulation and could be made purely in order to obtain the advantages which Italian law afforded to pentiti , or for personal revenge.   For those reasons, as the domestic courts recognised, such statements had to be corroborated by other evidence. Furthermore, hearsay had to be supported by objective evidence especially when a decision was being made whether to prolong detention pending trial. The Court noted that, as confirmed by the decisions acquitting the applicant, there had been no evidence to corroborate the hearsay evidence of the pentito . On the contrary, the main source had died before the trial and had, in turn, obtained it on hearsay from another person who had also been killed before he could be questioned. Furthermore, the pentito ’s statements had already been contradicted during the course of the investigation by other pentiti who had said that they did not recognise the applicant.   Furthermore, the grounds relied on: risk of pressure being brought to bear on witnesses and of evidence being tampered with, the fact that the accused were dangerous, the complexity of the case and the requirements of the investigation, though initially credible, were of a very general nature. The judicial authorities had referred to the prisoners as a whole and made no more than an abstract mention of the nature of the offence. They had not pointed to any factor capable of showing that the risks relied on actually existed and had failed to establish that the applicant posed a danger. No account had been taken of the fact that the accusations against the applicant had been based on evidence which, with time, had become weaker rather than stronger. The grounds stated in the impugned decisions were not sufficient to justify the applicant’s being kept in detention for two years and seven months. The detention in issue had therefore infringed Article 5 § 3 of the Convention.   Article 5 § 1 of the Convention   The applicant remained in detention for twelve hours after his acquittal. The delay in his release was only partly attributable to the need for the relevant administrative formalities to be carried out. The additional delay in releasing the applicant between 12.25 a.m. and the morning of 13 November 1993 had been caused by the registration officer’s absence. That did not amount to a first step in the execution of the order for his release and therefore did not come within sub-paragraph 1(c), or any other sub-paragraph, of Article 5. Accordingly, there had been a violation of Article 5 § 1 on that account.   Article 8 of the Convention   The applicant’s correspondence with his family and lawyer was censored by the authorities at Pianosa Prison. The censorship was initially based on section 18 of Law no. 354 of 1975, which as the Court had held in previous decisions and as the Government acknowledged did not indicate with sufficient clarity the extent of the relevant authorities’ discretion in that sphere or provide guidance on how it was to be exercised. Subsequently, the censorship was based on an order of the Minister of Justice made pursuant to section 41 bis of Law no. 354 of 1975. However, the Italian Court of Cassation had held that the Minister of Justice had no power to take measures concerning prisoners’ correspondence and had therefore acted ultra vires under Italian law. The censorship of the applicant’s correspondence during a still later period had no legal basis whatsoever. In conclusion, the various measures complained of by the applicant regarding the censorship of his correspondence had at no time been “in accordance with the law” within the meaning of Article 8 of the Convention. There had therefore been a violation of that Article.   Article 6 § 3 of the Convention   The Court considered that in the light of its conclusion regarding Article 8 of the Convention the complaint under Article 6 § 3 was absorbed by the preceding complaint.   Article 2 of Protocol No. 4 to the Convention   The applicant had been subjected for three years to very severe restrictions on his freedom of movement. Those measures were “in accordance with law” within the meaning of the third paragraph of Article 2 and had clearly pursued legitimate aims: “maintenance of ordre public ” and the “prevention of crime”. As regards the issue whether they were necessary “in a democratic society” the Court considered it legitimate for preventive measures, including special supervision, to be taken against persons suspected of being members of the Mafia, even prior to conviction, as they were intended to prevent crimes being committed. An acquittal did not necessarily deprive such measures of all foundation, as concrete evidence gathered at trial, though insufficient to secure a conviction, could nonetheless justify reasonable fears that the person concerned might in the future commit criminal offences. In the case before it, the decision to put the applicant under special supervision had been taken at the beginning of the proceedings at a time when there indeed existed some evidence that he was a member of the Mafia, but the measure was not put into effect until after he had been acquitted. The Court had examined the grounds relied on by the Italian courts for refusing to rescind the measure after the applicant’s acquittal and noted that the authorities had not found any concrete evidence to show that he was a member of the Mafia – or that there was a real risk that he would offend – during the preliminary investigation and trial. The restrictions on the applicant’s freedom of movement could not be regarded as having been “necessary in a democratic society”. There had therefore been a violation of Article 2 of Protocol No. 4.   Article 3 of Protocol No. 1 to the Convention   As someone who was subject to special police supervision because he was suspected of belonging to the Mafia, the applicant had automatically forfeited his civic rights and been struck off the electoral register. The Court had no doubt that temporarily suspending the voting rights of persons against whom there was evidence of Mafia membership pursued a legitimate aim. It observed, however, that although the special police-supervision measure against the applicant had in the instant case been imposed during the course of the trial, it had not been applied until the trial was over and the applicant acquitted on the ground that “he had not committed the offence”, the serious evidence of the applicant’s guilt having been rebutted during the trial. When his name was removed from the electoral register, therefore, there was no concrete evidence on which a “suspicion” that the applicant belonged to the Mafia could have been based. The Court could not regard that measure as proportionate. There had therefore been a violation of Article 3 of Protocol No. 1.   Article 41 of the Convention   Taking into account the fact that the applicant had previously obtained reparation from the national courts for any damage that he might have sustained by reason of his detention pending trial, the Court considered that, having regard to the seriousness and number of violations found in the case, the applicant should be awarded compensation for non-pecuniary damage. Ruling on an equitable basis, as provided for in Article 41 of the Convention, it decided to award ITL 75,000,000. As the applicant had not quantified his claim for costs and expenses or furnished any fee note, the Court awarded him only ITL   6,000,000 for costs incurred at the hearing before the Court.   Judges Pastor Ridruejo, Bonello, Makarczyk, Tulkens, Strážnická, Butkevych, Casadevall and Zupančič expressed a joint partly dissenting opinion and this are annexed to the judgment.   *** The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Judge elected in respect of San Marino. [2] This summary by the registry does not bind the Court.