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THE FACTS

The applicant, Mr Salvatore Enea , is an Italian national who was born in 1938. At the time the application was lodged he was detained in the clinic of Naples Prison ( Secondigliano ). He was represented before the Court by Mr M. Vetrano and Mr M. Esposito, lawyer s practising in Naples .

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

The applicant has been in detention since 23 December 1993 . S everal sets of criminal proceedings were brought against him , as a result of which he was sentenced to terms of imprisonment. He is currently serving a thirty ‑ year prison sentence relating, in particular, to convictions for criminal association , drug trafficking and illegal possession of firearms . On 27 December 2001 the public prosecutor at the Milan Court of Appeal ordered that the applicant ’ s sentences be served consecutively .

The applicant ’ s health

The applicant has a number of health problems which oblige him to use a wheelchair.

Since 18 June 2000 he has been serving his sentence in the section of the clinic of Naples Prison ( Secondigliano ) reserved for prisoners subject to the regime provided for by section 41 bis of the Prison Administration Act (“Law no. 354 of 1975”) .

On an unspecified date the applicant applied for a stay of execution of his sentence under Articles 146 and 147 of the Criminal Code. On 18 January 2001 the Naples court responsible for the execution of sentences , on the basis of a medical report prepared by the prison clinic, rejected the application on the ground that the applicant was being held in the section of the clinic set aside for prisoners subject to the section 41 bis regime and was receiving the assistance he required.

On an unspecified date the applicant applied for a stay of execution of his sentence on health grounds. In a decision of 22 March 2002 the judge responsible for the execution of sentences rejected the application. He took the view that the applicant ’ s state of health was not incompatible with detention in the prison clinic; on the contrary, the latter possessed the appropriate facilities. On 18 February 2002 the applicant lodged an appeal with the court responsible for the execution of sentences. In a decision of 2 July 2002 the latter dismissed the appeal, finding that the clinic was a suitable setting in view of the applicant ’ s health problems.

According to t he reports drawn up by the Naples P rison social workers , the applicant, since being detained in the prison clinic, has never taken part in an individually tailored rehabilitation programme, having had no opportunity of do ing so. Under section 13 of Law no. 354 of 1975 , however, the treatment to which a prisoner is subjected must respect the needs of 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 .

Application of the special prison regime to the applicant

The applicant has been detained in several Italian prisons ( including Palermo , Catania , Ucciardone , Pisa and Naples ).

On 10 August 1994 , 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 provided for in the second paragraph of section 41 bis of Law no. 354 of 1975 . This provision, amended by Law no. 279 of 2002, 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:

- restrictions on visits by family members (a maximum of a single one ‑ hour visit per month);

- no visits by t hird parties;

- prohibition on using the telephone ;

- no sums of money above a fixed amount to be received or sent out;

- no more than two parcels to be received per month, but possibility of receiving two parcels per year containing clothing;

- ban on organising 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;

- no more than two hours ’ outdoor exercise per day .

The application of the special regime was extended on sixteen occasions for successive periods of one year or six months until June 2004; the most recent decision communicated to the Court was dated 25 December 2003. However, the restrictions were eased to allow the applicant one hour-long telephone conversation monthly with members of his family, in the absence of a visit by the latter; the restriction on the time spent in outdoor exercise and the prohibition on purchasing food requiring cooking were also lifted .

Each decree covered a limited period, as follows:

10 August 1994 – 9 August 1995 ( decree no. 1)

5 August 1995 – 5 February 1996 ( decree no. 2)

2 February 1996 – 2 August 1996 ( decree no. 3)

31 July 1996 – 31 January 1997 ( decree no. 4)

4 February 1997 – 4 August 1997 ( decree no. 5)

31 July 1997 – 31 January 1998 ( decree no. 6)

4 February 1998 – 4 August 1998 ( decree no. 7)

3 0 July 1998 – 30 January 1999 ( decree no. 8)

27 January 1999 – 27 July 1999 ( decree no. 9)

22 July 1999 – 31 December 1999 ( decree no. 10)

23 December 1999 – 23 June 2000 ( decree no. 11)

22 June 2000 – 31 December 2000 ( decree no. 12)

21 December 2000 – 21 June 2001 ( decree no. 13)

18 June 2001 – 18 December 2001 ( decree no. 14)

The applicant stated that he had been subject to the same regime during the subsequent period, but furnished only the following decrees :

28 December 2002 – 22 December 2003 ( decree no. 15)

25 December 2003 – ... ( decree no. 16).

It is clear from the case file that the applicant continues to be subject to the special regime.

The applicant appealed against some of these decrees before the Naples court responsible for the execution of sentences. He submitted the following facts.

1. Decree no. 3

On 7 February 1996 the applicant lodged an appeal against this decree . In an order of 26 March 1996, deposited with the registry on 30 March 1996 and served on the applicant on 30 April 1996, the court declared the appeal inadmissible in accordance with the restrictive case-law followed at the time to the effect that the court hearing the case did not have power to examine the merits of the restrictions imposed .

2. Decree no. 5

The applicant lodged an appeal against this decree . In an order of 6 May 1997, deposited with the registry on 15 May 1997 and served on the applicant on 21 May 1997 , the court, while confirming the application of the special regime to the applicant, lifted the restriction on visits by family members (maximum of one hour-long visit per month).

3. Decree no. 6

The applicant lodged an appeal against this decree . In an order of 16 October 1997, deposited with the registry on 22 October 1997 and served on the applicant on 24 October 1997 , the court, while confirming the a pplication of the special regime to the applicant, again lifted the restriction on visits by family members (maximum of one hour-long visit per month).

4. Decree no. 7

The applicant lodged an appeal against this decree . In an order of 2 July 1998, deposited with the registry on 9 July 1998 and served on the applicant on 12 August 1998 , the court, finding that the restrictions were justified, dismissed the appeal.

5. Decree no. 8

The applicant lodged an appeal against this decree . In an order of 30 November 1998, deposited with the registry on 9 December 1998 and served on the applicant on 23 December 1998 , the court, finding that the restrictions were justified, dismissed the appeal.

6. Decree no. 9

The applicant lodged an appeal against this decree . In an order of 9 October 1999, deposited with the registry on 20 October 1999 and served on the applicant on an unspecified date, the court declared the appeal inadmissible. It observed that the period of validity of the decree had expired on 27 July 1999 and that, accordingly, the applicant no longer had any interest in having it examined.

7. Decree no. 11

On 28 December 1999 the applicant lodged an appeal against this decree . In an order of 11 May 2000, deposited with the registry on 23 May 2000 and served on the applicant on 21 July 2000, the court declared the appeal in admissible, taking the view that the applicant had withdrawn it.

8. Decree no. 15

On an unspecified date the applicant lodged an appeal against this decree . He requested a review by the Constitutional Court of the compatibility of section 41 bis , as amended by Law no. 279 of 2002, with several articles of the Constitution.

In an order of 3 March 2003, served on the applicant on 8 April 2003, the Naples District Court found that, in so far as Law no. 279 of 2002 did not lay down a clear requirement to give reasons for the decree s, an issue of constitutionality could arise . It considered that in the instant case the regime concerned had been applied to the applicant since 1996 and that the reasons for the decree s had always related to his ongoing links with his criminal environment , notwithstanding the special prison regime. Accordingly, the court ordered that the case file be transmitted to the Constitutional Court .

When the Court last received information on this subject (on 2 August 2004), the Constitutional Court had not yet given a ruling.

9. Decree no. 16

On an unspecified date the applicant lodged an appeal against this decree . He maintained that the special regime acted as a bar to the reintegration of prisoners , contrary to Article 27 of the Constitution. He considered that section 13 of Law no. 354 of 1975, which stipulated that the treatment to which the prisoner concerned was subjected must respect the needs of his personality and that a rehabilitation programme must be prepared and adapted on the basis of scientific observation of the prisoner ’ s personality and with his cooperation , had at no point ceased to apply . In that connection he requested that all the previous decree s be added to the case file with a view to comparing the reasons given.

When the Court last received information on this subject (on 2 August 2004), the court responsible for the execution of sentences had not yet given a ruling. The hearing was set down for 23 September 2004.

The applicant did not at any stage lodge an appeal on points of law against the orders issued by the court responsible for the execution of sentences. In his application form he maintained that the Court of Cassation would have dismissed such an appeal as being devoid of purpose , as the period of validity of the decree s in question had always expired previously.

The censoring of the applicant ’ s correspondence

It appears from the case file that the applicant ’ s correspondence is monitored by the prison authorities.

On 13 August 1997 and 28 February 1998 the Naples judge responsible for the execution of sentences ordered that the applicant ’ s correspondence be monitored for an unspecified period. On 7 May 1999 and 18 January 2000 the Milan public prosecutor ’ s office ordered the monitoring of the applicant ’ s corresponden ce for an unspecified period. On 7 February 2000 and 22 January 2001 the Naples judge responsible for the execution of sentences again ordered the monitoring of the applicant ’ s correspondence for an unspecified period.

The applicant alleged that his correspondence was still being monitored.

He furnished, inter alia , copies of the decisions referred to above and of two letters exchanged with his lawyer bearing a stamp showing that they had been checked by the prison authorities.

B. Relevant domestic law and practice

The Court has summarised the domestic law and practice relevant to the special prison regime applied in this case in Salvatore v. Italy ( dec .), no. 4 2285/98, 17 June 2004.

COMPLAINTS

1. Relying on Article 3 of the Convention, the applicant alleged that the prison regime to which he had been subject for many years amounted to inhuman and degrading treatment. He also complained of the fact that he had been made subject to a special regime in spite of his health problems.

2. The applicant alleged a violation of his right to respect for his family life on account of the restrictions and arrangements laid down regarding visits by his family. He also complained of a violation of his right to respect for his correspondence.

3. The applicant further complained under Articles 6 and 13 of the Convention of the delayed examination by the courts of his appeals against the decree s of the Minister of Justice. Referring in particular to Article 13 of the Convention, the applicant complained that he had not had an effective remedy in respect of the decisions extending application of the special prison regime. Accordingly, he considered that the proceedings before the court responsible for the execution of sentences had been unfair.

4. Relying on Article 6 § 3 (b) and (c) of the Convention, the applicant also alleged that the domestic authorities had attempted, by placing him under the special regime, to secure his cooperation with the judicial process . He maintained, in particular, that he had not had an y opportunity of defend ing himself in the proceedings before the court responsible for the execution of sentences.

5. Under Article 6 § 2, the applicant further complained of a violation of the principle of presumption of innocence on account of the application of the section 41 bis regime during his trial.

6. Relying on Article 9 of the Convention, the applicant complained that he was unable to manifest his religion.

THE LAW

The applicant alleged a violation of Article 3 of the Convention, which provides:

“No one shall be subjected to ... inhuman or degrading treatment or punishment.”

The applicant considered that the prison regime to which he had been subject for many years amounted to inhuman and degrading treatment. He further considered that the fact that he had been made subject to a special regime despite his health problems amounted to a violation of Article 3 . He maintained that, given his state of health, even the ordinary prison regime would have adverse effects on his health . The fact that he was in a wheelchair and had to live in the prison clinic was an aggravating factor in relation to his inhuman and degrading treatment.

As the case stands at present, the Court is not in a position to rule on the admissibility of this complaint and considers it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of its Rules of Court.

2. The applicant further contended that the continuing application of the special prison regime was in breach of his right to respect for his family life and his correspondence. Article 8 of the Convention provides:

“1. Everyone has the right to respect for his ... family life ... 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 ... for the prevention of disorder or crime ... ”

As regards the first aspect of this complaint, the applicant complained of the conditions in which his meetings with the members of his family took place and their infrequency. As to the second aspect, he complained also of a violation of his right to respect for his correspondence.

As the case currently stands, the Court is not in a position to rule on the admissibility of this part of the application and considers it necessary to give notice of it to the respondent Government in accordance with Rule 54 § 2 (b) of its Rules of Court.

3. The applicant also complained of the delayed examination by the domestic court of his appeal against the decree applying the special prison regime. He considered that he had not had an effective remedy in respect of the decisions extending application of the regime.

He relied on Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

In line with its recent practice (see Ganci v. Italy , no. 41576/98, §§ 19 ‑ 26, 30 October 2003), the Court is of the view that this complaint falls to be examined under Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The applicant alleged that the delay in setting down his appeal for hearing – combined with other delays on the part of the judicial and administrative authorities – had prevented him from obtaining a review of the decree of the Minister of Justice. The delay had also rendered any subsequent appeal on points of law fruitless as the latter would , on the basis of the existing case-law, have been declared inadmissible.

As the case stands at present, the Court is not in a position to rule on the admissibility of this complaint and considers it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of its Rules of Court.

4. The applicant further complained of a violation of Article 6 § 3 (b) and (c) of the Convention, which provide:

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ”

The applicant maintained that he had had no opportunity of defending himself in the proceedings before the court responsible for the execution of sentences.

The Court reiterates that the third paragraph of Article 6 applies only to criminal charges, whereas the impugned ministerial decree related to conditions of detention (see Ospina Vargas v. Italy ( dec .), no. 40750/98, 6 April 200 0).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention .

5. Relying on Article 6 § 2, the applicant also complained of a violation of the principle of presumption of innocence on account of the application of the regime provided for by section 41 bis during his trial.

Article 6 § 2 of the Convention provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court considers that there is no possible link between the degree of severity of a regime of detention pending trial and Article 6 § 2 of the Convention. It further reiterates that the principle of presumption of innocence cannot be construed as preventing the imposition of detention pending trial , which is provided for in Article 5 § 1 (c) of the Convention (see Musumeci v. Italy ( dec .), no. 33695/96, 17 December 2002).

Accordingly, it considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.

6. The applicant complained that he was unable to manifest his religion. He relied on Article 9 of the Convention, which provides:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

As the case currently stands, the Court is not in a position to rule on the admissibility of this complaint and considers it necessary to give notice of this part of the application to the respondent Government in accordance with Rule 54 § 2 (b) of its Rules of Court.

For these reasons, the Court unanimously,

Adjourns examination of the applicant ’ s complaints concerning the continuing application of section 41 bis , the compatibility of the regime in question with the applicant ’ s state of health, the censoring of his correspondence (Articles 3 and 8 of the Convention), the delay in setting a date for hearing his appeals before the court responsible for the execution of sentences (right of access to a court under Article 6 § 1 of the Convention), and his complaint under Article 9 of the Convention.

Declares the remainder of the application inadmissible.

Søren N ielsen C hristos R ozakis Registrar President