SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25337/94 by Benedetto CRAXI against Italy

The European Court of Human Rights (Second Section) , sitting on 7 December 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr B. Conforti , Mr G. Bonello , Mrs V. Strážnická , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , judges , and Mr E. Fribergh , Sect ion Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 16 June 1994 and registered on 28 September 1994,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 14 October 1996,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, an Italian national born in 1934, was the general secretary of the Italian Socialist Party (PSI) from 1976 to 1993. From 1983 to 1987 he was Prime Minister of Italy. As of April 1994 (according to the applicant) or May 1994 (according to the Italian authorities), he lived in Hammamet (Tunisia) until his death on 19 January 2000.

He is represented before the Court by Mr Giannino Guiso and Mr Antonio Lo Giudice, lawyers in Milan. The respondent Government are represented by Mr Umberto Leanza, Agent, and by Mr Vitaliano Esposito, Coagent.

A. The circumstances of the case

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

1. The background.

The criminal proceedings to which this application relates were part of the criminal proceedings brought by the Milan public prosecutor’s office during the so-called “clean hands” ( mani pulite ) campaign.

Between January and October 1993, the Milan prosecutor issued twenty-six notices of prosecution ( avvisi di garanzia ) in respect of the applicant, in particular for corruption, dishonest receipt of money by a public officer, concealment of dishonest gain and offences against the legislation on the financing of political parties.

On 10 May, 10 September 1993 and 7 May 1994 the Rome Public Prosecutor also issued notices of prosecution in respect of the applicant for dishonest receipt of money by a public officer, offences against the legislation on the financing of political parties, corruption and misuse of public office.

The bringing of prosecutions against the applicant and other figures in politics, business and public institutions continued to receive attention from the media.

2. The telephone interceptions

Amongst the cases against the applicant was that of Metropolitana Milanese, which concerned payments of large sums of money made between 1983 and 1992 by a number of firms to the representatives of political parties and the influence the latter exerted on the board of directors of the Metropolitana Milanese company with a view to awarding contracts to those firms in connection with works on the Milan underground system.

On 8 June 1994 the Judge for the Preliminary Investigations committed the applicant and 89 co-defendants for trial at the Milan District Court. The applicant was charged, in particular, with interference with freedom of contract and corruption.

In a decision of 7 July 1995 the Milan District Court remanded the applicant in custody. On 12 July 1995 counsel for the applicant informed the Milan District Court that he had learned of that decision through the press and asked for a copy of it. On 20 July 1995 the Milan District Court declared the applicant to be latitante , that is to say deliberately evading a court order. In a decision of 25 September 1995 the Milan District Court dismissed the applicant’s appeal against the decision of 7 July 1995. The court noted that once the preliminary investigation was completed it was for the trial court to consider at trial whether there were substantial indications of guilt and whether in particular there was still a danger that the applicant would abscond. The court noted, in particular, that since 5 May 1994 it had been impossible to find the applicant in Italy and that in the various proceedings brought against him a number of coercive measures had been ordered that had not been possible to enforce. The court also noted that in judgments of 29 July 1994 and 7 December 1994 the applicant had been sentenced to terms of imprisonment. In its view, the applicant’s lengthy stay abroad demonstrated his determination to evade the coercive measures ordered against him in 1994.

On 17 and 19 July 1995 the Public Prosecutor sought an order under Articles 295 and 266 et seq. C.P.P. for the interception of the applicant’s telephone calls between Italy and his home in Hammamet. The interceptions were aimed at gathering information with a view to arresting the applicant.

In a decision of 21 July 1995 the Milan District Court allowed those applications pursuant to Article 295 § 3 C.P.P. with a view to facilitating the arrest of the applicant. The court noted that the interceptions had a legal basis, the applicant having been accused of an offence punishable with two to five years of imprisonment, and they were essential in order to supervise the applicant’s movements and personal relations, also on an international level, which had allowed him to continue to abscond. The interceptions, carried out by a specialist branch of the Italian police, began on 20 July 1995 and were concluded on 30 September 1995.

At the same time, the Public Prosecutor sought an order for the interception of the applicant’s telephone calls between Italy and his home in Hammamet in the context of the criminal proceedings for defamation which were pending against the applicant before the Milan Judge for the Preliminary Investigations. The latter allowed the interceptions with a view to gathering evidence against the applicant and to identifying the accomplices. The interceptions, carried out by a specialist branch of the Italian police, began on 1 August 1995. The prosecution applied for four extensions of the duration of the interceptions, which were allowed by the Judge for the Preliminary Investigations on 4 August, 12 August, 1 September and 14 September 1995. A request for a further extension was refused on 30 September 1995. The interceptions were thus concluded on 3 October 1995.

At the hearing on 29 September 1995 in the case of Metropolitana Milanese, the prosecution filed the transcripts of the telephone interceptions with the court’s registry and asked that they be admitted as evidence against the applicant pursuant to Article 507 C.P.P. The prosecution argued that they were necessary to assess the applicant’s personality with a view to determining the sentence if he were to be convicted, and that they could support the prosecution’s allegation that the applicant intended to continue to abscond. The prosecution subsequently read out in court certain extracts of interceptions with a view to proving: a) that the applicant could leave Hammamet; b) that the applicant had started or influenced two virulent press campaigns against a judge of the Milan District Court and against an Italian political party; c) that the applicant was collecting information concerning certain politicians and magistrates, with a view to damaging their reputation; d) that the applicant continued to show aggressiveness towards the magistrates who were investigating him. The Public Prosecutor compared the applicant’s conduct to that of a “major criminal” ( criminale matricolato ) who attacks all those who have done their job and have tried to do it well.

The court reserved its decision on the prosecution’s requests until the hearing of 19 October 1995.

Counsel for the applicant was provided with a copy of the telephone interceptions and afforded the possibility of making written submissions. He subsequently objected to the admission of the interceptions as evidence. He argued in particular that the court had failed, in breach of Article 268 C.P.P., to proceed prior to the trial hearing, in defence counsel’s and the prosecution’s presence, to the selection of the significant interceptions and the exclusion of those to be considered as illegal within the meaning of Article 191 C.P.P. Further, the prosecution had failed to apply for an extension of the fifteen-day duration of the telephone tapping, so that those interceptions which had been carried out after the first fifteen days were illegal and could not be used.

The content and the name of the interlocutors of certain telephone conversations were subsequently published in the press; amongst these were conversations which the applicant had had with his lawyer, with a former socialist senator and with a political supporter, and also a telephone conversation that his wife had had with the wife of the former Prime Minister Silvio Berlusconi. The Public Prosecutor granted the press a number of interviews on the matter; he declared he regretted having compared the applicant to a “major criminal”.

At the hearing of 19 October 1995, the Milan District Court found that the failure to hold a specific hearing prior to the trial in order to select the intercepted telephone conversations did not amount to a violation of Article 268 C.P.P. and therefore did not prevent the use at trial of the interceptions. The court however decided not to make use of the information yielded by the telephone interceptions made between 20 July and 3 August 1995, in that they were relevant but not “absolutely necessary” within the meaning of Article 507 C.P.P. in order to assess the applicant’s personality. The court further held that the interceptions made after 3 August 1995 could not be used as evidence, as no application had been made by the prosecutor for an extension of the duration of interception, nor could such authorisation be considered as having been implicitly granted for as long as the applicant would be absconding.

B. Relevant domestic law

Pursuant to Article 295 § 3 C.P.P., where the accused is deliberately evading a court order (“ latitante” ), the judge may order the interception of his telephone conversations with a view to facilitating his arrest. The conditions and modalities of the interceptions ordered in pursuance of this provision are the same as those set out in Articles 266 and 267 C.P.P. Articles 267 and following C.P.P. are applicable insofar as practicable.

Under Article 266 C.P.P., surveillance of telephone conversations may be ordered if, inter alia , the proceedings concern offences against the public administration which are punishable with a maximum term of imprisonment of not less than five years. Conversations which are held in private places can be monitored if there are reasonable grounds for believing that the above offences are being committed in these places.

Under Article 267 C.P.P., telephone tapping may be allowed by the Judge for the Preliminary Investigations through a motivated order ( decreto ) upon a request by the public prosecutor, when there is serious evidence of a crime and when the tapping is absolutely necessary for pursuing the investigations. The duration of the tapping operations cannot exceed fifteen days but may be extended by a decision of the judge.

Pursuant to Article 268 C.P.P., the intercepted conversations are recorded and minutes are drafted of the tapping operations, which must contain a description, at least summary, of the content of the conversations. The minutes are immediately forwarded to the Public Prosecutor. Within five days from the conclusion of the tapping operations, the minutes are deposited in the Prosecutor’s secretariat together with any decisions ordering, authorising, extending or ratifying the interceptions, and are kept there for the period of time fixed by the prosecutor, unless the judge decides to extend it. Defence counsel is immediately informed that, during that period of time, it is entitled to examine the minutes and to listen to the recordings. The judge subsequently admits those interceptions which are indicated by the parties and which do not appear to be manifestly irrelevant as evidence, and separates, also ex officio , the recordings and transcriptions which are to be considered illegal within the meaning of Article 191 C.P.P. (i.e. those which have been obtained in breach of the applicable legislation). The Public Prosecutor and defence counsel are entitled to participate in the selection and are given notice thereof at least twenty-four hours in advance.

The minutes and recordings are normally kept by the Public Prosecutor who ordered the interceptions until the end of the proceedings (Article 269 C.P.P.). The results of the interceptions which have been made in breach of the applicable legislation cannot be used as evidence and must be destroyed, unless they constitute body of evidence (Article 271 C.P.P.).

The results of the interceptions can only be used in the context of the proceedings in which they have been authorised (Article 270 C.P.P.)

Under Article 507 C.P.P., after the completion of the admission of evidence, the judge can order that new evidence be sought if that proves to be absolutely necessary.

COMPLAINTS

The applicant complained under Article 8 of the Convention about the interception of his telephone calls and under Articles 8, 14 and 18 of the Convention about the release of their content into the public domain.

THE LAW

1. Whether the applicant’s heirs have a legitimate interest in pursuing the application

The Court observes that the applicant died on 19 January 2000. On 7 April 2000, his widow, Mrs Anna Maria Moncini Craxi, his daughter Ms Stefania Craxi and his son, Mr Vittorio Craxi, informed the Court that they intend to continue the proceedings.

The Court notes that the applicant’s and his family’s telephone conversations were intercepted by the Italian authorities and their content was made accessible to the public and divulged through the press. It considers that Mr Craxi’s widow and children have a legitimate interest in obtaining a ruling that the telephone interceptions and divulging through the press constituted a breach of the right to respect for private life and correspondence.

The Court considers therefore that Mrs Anna Maria Moncini Craxi, Ms Stefania Craxi and Mr Vittorio Craxi have standing to continue the present proceedings in the applicant’s stead.

2. Whether the applicant has exhausted the available domestic remedies

The Government contended that the applicant had not exhausted domestic remedies, in that he had failed to appeal against the decision of the Milan District Court concerning the admissibility of the telephone interceptions. Further, he had failed to appeal against the decision of the Milan District Court of 21 July 1995 allowing the telephone interceptions and had merely raised an objection as to their evidential value in the course of the trial.

The applicant underlined that he had first been on notice of the existence of the interceptions in the Metropolitana Milanese case on 29 September 1995. At that time, he had reserved his position as to their relevance to those proceedings. However, as of this date, the material had been deposited in the court’s registry and had thus become accessible to the public, without any distinction having been made between the material regarded by the prosecution as relevant to the proceedings and the conversations which concerned purely private matters of a personal, family or social nature, and conversations with lawyers representing the applicant in domestic proceedings. The applicant had subsequently objected to the inclusion of the interceptions as evidence and the district court had ruled that they were partly illegal and partly of no evidential value. In the light of the aforementioned, the applicant considered to have exhausted all available domestic remedies.

The Court observes that, as concerns the telephone interceptions, the applicant only learned of their existence at the trial and reacted timely, by challenging their legality and their probative value. The Milan District Court agreed with his contentions and refused to include the interceptions as evidence against him. The Court does not see why the applicant should have appealed against the court’s ruling, which was in his favour. It considers therefore that the applicant has made use of the procedural venues which were open to him in the circumstances.

As regards the release of the interceptions into the public domain, the Court observes that the Government have not indicated what remedies the applicant had at his disposal and failed to exhaust.

The Government’s objection must therefore be rejected.

3. As to the interception of the telephone conversations

The applicant complained in the first place about the interception of his telephone conversations and alleged a violation of Article 8 of the Convention which provides, so far as relevant, as follows:

“1. Everyone has the right to respect for his private … 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 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 Court notes that it is not disputed that the surveillance of the applicant’s telephone conversations in the present case amounted to an interference with his rights under Article 8 § 1 of the Convention (see, amongst others, the Klass and others v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, § 40; Amman v. Switzerland [GC], no. 27798/95, § 44, ECHR 2000-II). The principal issue is whether this interference was justified under Article 8 § 2, notably whether it was “in accordance with the law” and “necessary in a democratic society”, for one of the purposes enumerated in that paragraph.

(a) As regards the interceptions made between 20 July and 3 August 1995

The Government submitted that the telephone interceptions made between 20 July and 3 August 1995 had been “in accordance with the law” within the meaning of paragraph 2 of Article 8. They had been carried out in conformity with the applicable legislation which sets out, clearly and in detail, the cases in which the interceptions are possible, the duration and modalities of the interceptions and the rules as to the storing of the tapes, the transcripts of the interceptions of probative value and the destruction of the others. Further, the interceptions had been absolutely “necessary in a democratic society” for the prevention of crime, i.e. with a view to arresting the applicant. The latter had been absconding in Tunisia, and the interceptions had aimed at supervising his moves and his possible return to Italy or his possible moving to another country from which he might more easily be extradited.

The applicant argued that the actual necessity of such a serious interference with his rights under Article 8 of the Convention should have been more carefully indicated.

The Court recalls that the phrase “in accordance with the law” not only requires that the impugned measure should have some basis in domestic law, but also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Amman v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II).

The Court observes that the applicant does not deny that the telephone interceptions at issue had a basis in Italian law - they are in fact governed by Article 295 § 3 and Articles 266 and following of the Code of Criminal Procedure. It further notes that the Italian legislation defines the scope of and procedures for the exercise of the judge’s power to order telephone tapping with sufficient precision as to protect the individual against arbitrary decisions. It also requires that the reasons for every measure of this kind to be duly set out. The Court therefore considers that such legislation satisfies the requirements of Article 8 § 2 of the Convention.

The Court further considers that the telephone tapping pursued the legitimate aim of prevention of crime.

As regards its necessity, the Court notes that the reasons for the tapping were duly set out in the decision allowing the interceptions. The Court has no reasons to believe, nor has the applicant demonstrated, that the measures of surveillance at issue went beyond what was strictly necessary in a democratic society for the prevention of crime.

In these circumstances, the Court finds that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to paragraph 4 of the same provision.

(b) As regards the interceptions made after 3 August 1995

The Government submitted that also the interceptions which were made after 3 August 1995 were “in accordance with the law”. They argued that, even though the prosecution had not sought the prorogation of the duration of the interceptions in respect of the Metropolitana Milanese case, the necessary authorisations had been granted by the Milan Judge for the Preliminary Investigation in respect of the proceedings for defamation. At any rate, the applicant benefited from the lack of the necessary prorogations, given that, as a result, the interceptions could not be used as evidence against him.

The applicant, relying on the decision of the Milan District Court of 19 October 1995, contended that the interceptions at issue had not been authorised in respect of the Metropolitana Milanese proceedings and were thus unlawful, contrary to the requirement of Article 8 § 2 of the Convention.

The Court observes that, upon the applicant’s objection, at the public hearing of 19 October 1995 the Milan District Court stated that the interceptions made after 3 August 1995 had been made in breach of the applicable legislation, in that the prosecution had failed to make an application for the extension of the duration of the interception operations. The text of this decision was deposited in the registry and became public.

As consequences of this ruling, the interceptions were not included as evidence against the applicant, and the tapes and written transcriptions were destroyed pursuant to Article 271 C.P.P.

In these circumstances, the Court considers that the applicant was granted appropriate redress for the alleged violation of Article 8 in respect of the telephone interceptions made after 3 August 1995 (see Eur. Comm. H.R., nos. 21858/93 and 21905/93, dec. 29.11.95, unreported).

It follows that in this respect the applicant can no longer claim to be a victim so that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

4. As to the release of the content of the intercepted telephone conversations into the public domain

The applicant further complained about the release into the public domain and the subsequent divulging through the press of the content of the intercepted telephone conversations. He argued in particular that the Public Prosecutor’s decision to deposit material in the court’s registry which he considered of no probative value and which had been collected unlawfully was contrary to Articles 8, 14 and 18 of the Convention.

The Government argued that the circumstance that the press had had access to the transcriptions of the telephone interceptions was in conformity with the applicable legislation as to the publicity of hearings and of non-classified trial documents. The prosecution had legitimately chosen to seek the inclusion of the interceptions as evidence at the public hearing, so that counsel for the applicant would have a full opportunity of challenging that request. The press had exercised their right, guaranteed by the Italian Constitution and by Article 10 of the Convention, to impart information about a matter of undoubted public interest. In these circumstances, the judicial authorities bore no responsibility in respect of the divulging of the content of the intercepted telephone conversations for which the prosecution had sought the inclusion as evidence against the accused.

As regards the remainder of the telephone interceptions (those whose admission as evidence had not been sought by the prosecution), the Government pointed out that they had been deposited in the Court’s registry in order to disclose them to counsel for the applicant and thus give him the opportunity of possibly making use of them. The fact that also the press had had access thereto did not entail any responsibility of the State. They further pointed out that, before the deposit in the registry, the transcripts had been duly kept confidential.

The applicant criticised that reference to certain interceptions had been made in open court at the hearing of 29 September 1995 in the presence of the press without imposing any reporting restrictions. At any rate, he considered that the source of the press information had not been the hearing, but mainly the deposit of the bulk of the transcriptions in the registry. In this respect, the applicant underlined that the Public Prosecutor had failed to distinguish, in the material which he deposited in the court’s registry, between material which he considered might be probative and the remaining interceptions. He could not have been unaware of the confidential and private contents of the material which he had examined and knew that its deposit in the registry would make it public. In the applicant’s view, nothing in Italian law required the deposit of all the interceptions in the registry, and nothing prevented the prosecution from providing the applicant with all or part of the interceptions before their deposit. The applicant concluded that by releasing the interceptions in the public domain the Italian authorities had failed to respect their positive obligations in respect of his rights under Article 8 of the Convention.

The Court considers, in the light of the parties’ submissions, that this part of the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It follows that this part of the application should be declared admissible.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint relating to the release into the public domain of the telephone interceptions ;

Declares inadmissible the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President