Information Note on the Court’s case-law 40

March 2002

Priebke v. Italy (dec.) - 48799/99

Decision 7.3.2002 [Section I]

Article 8

Article 8-1

Respect for correspondence

Control of correspondence of person detained with a view of extradition: inadmissible

From 1943 the applicant, who was a Nazi officer, was the head of the German police in Rome under the orders of his colonel. Following an attack by Italian resistance fighters which resulted in the death of thirty-two German soldiers, he directed the execution of three hundred and thirty-five civilians, ordered in retaliation by his colonel and Hitler, at a place known as the “Ardeatine Caves”. The applicant fled at the end of the war and emigrated to Argentina. In 1994 the Rome public prosecutor’s office sought his arrest for his part in the murder of three hundred and thirty-five civilians. He was extradited in 1995 and placed in detention on remand on his a rrival in Italy. In April 1996 he was committed for trial before a military court. The court discontinued the proceedings on the ground that the offence was time-barred, and ordered his immediate release. Immediately after the verdict was pronounced, there were demonstrations by protesters, whereupon the Minister for Justice informed them that since Germany had requested the applicant’s extradition, the decision to release him would not be enforced. On 3 August 1996 the Court of Appeal validated the applica nt’s arrest, noting that an arrest warrant had indeed been issued against him by a German court, and placed him in detention with a view to extradition. On 7 August 1996 the President of the same Court of Appeal ordered his correspondence to be censored in order to avoid any risk of his communicating information which might hinder the extradition proceedings. In October 1996 the Court of Cassation, ruling on an appeal by the military prosecution office, set aside the military court’s judgment. Following tha t judgment the applicant was remanded in custody and made the subject of a compulsory residence order from March 1997. After being tried a second time by the military court, he was sentenced to fifteen years’ imprisonment in July 1997, with ten years’ remi ssion. On 6 November 1997 the Court of Appeal dismissed an application for extradition lodged by the German authorities in August 1996 on the ground that the applicant was the subject of criminal proceedings in Italy. In the meantime the applicant and the military prosecution office had appealed against the judgment of the military court of July 1997. The Military Court of Appeal did not find any mitigating circumstances in favour of the applicant and sentenced him to life imprisonment. The applicant’s appe al on points of law against that judgment was dismissed.

Inadmissible under Article 8: The order of 7 August 1996 for censorship of the applicant’s correspondence had never been explicitly discharged. However, the order of 7 August 1996 explicitly referre d to the extradition request submitted by the German authorities and had been sent to the governor of the prison where the applicant was detained. In March 1997 the applicant was made the subject of a compulsory residence order and, accordingly, left Rome Prison, finding accommodation first in a convent, then in a military hospital and lastly at the private home of a person willing to accommodate him. Given that the above-mentioned order had given responsibility for the censorship of his correspondence to t he governor of the prison where the applicant had first been detained, it should have been clear to the applicant that the decision to make him the subject of a compulsory residence order marked the end of the censorship. Furthermore, his detention with a view to his extradition ended in March 1997 and the extradition proceedings themselves ended on 6 November 1997, when the Rome Court of Appeal declared the German authorities’ request inadmissible. The applicant, who had been assisted by at least one lawye r during the domestic proceedings, could and should have known that any measure ordered in connection with his detention with a view to extradition should be construed as being of no further effect from the time when that detention ended, which was - at th e latest - when the extradition request was finally rejected. With regard to the six-month period, the measure of which the applicant complained had to be considered as having ended on 6 November 1997 at the latest. As the present application had been lodg ed on 10 May 1999, that complaint was therefore out of time.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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