LABITA v. ITALY JUDGMENT
18
C. Provisions relevant to the censorship of correspondence
94. Section 18 of Law no. 354 of 26 July 1975, as amended by section 2
of Law no. 1 of 12 January 1977, provides that power to order censorship of
prisoners' correspondence vests in the judge dealing with the case – whether
the investigating judge or the trial judge – until the decision at first instance
and thereafter in the judge responsible for the execution of sentences. The
judge may order censorship of a prisoner's correspondence in a reasoned
decision; this provision does not, however, specify the circumstances in
which such orders may be made.
95. In practice, censorship entails all the prisoner's mail being
intercepted and read by either the judge that made the order or the prison
governor or prison staff designated by him; censored mail is stamped to
show that it has been inspected (see also Article 36 of the decree
implementing Law no. 354 referred to above – Presidential Decree no. 431
of 29 April 1976). Censorship cannot extend to deleting words or sentences,
but the judge may order that one or more letters shall not be delivered; in
such cases, the prisoner must be informed immediately. This latter measure
can also be ordered temporarily by the prison governor, who must, however,
notify the judge.
96. Article 103 CCP forbids the seizure or any form of censorship of
correspondence between a prisoner and his lawyer, provided that the
correspondence is identifiable as such and unless the judge has
well-founded reasons to believe that the correspondence constitutes the
substance of the offence.
97. Similarly, by Article 35 of the transitional provisions of the new
Code of Criminal Procedure the rules on the censorship of a prisoner's
correspondence laid down in Law no. 354 and Presidential Decree no. 431
do not apply to correspondence between a prisoner and his lawyer.
However, for such correspondence to escape censorship, the envelope must
be marked with the identity of both the accused and his lawyer, the fact that
the lawyer is acting in that capacity and the words “correspondence for the
purposes of court proceedings” (“corrispondenza par ragioni di giustizia”)
signed by the sender, who must also specify the proceedings to which the
letter relates. If the sender is the lawyer, his signature must be certified by
the head of the Bar Association or the latter's delegate.
98. As the censorship of correspondence is an administrative act and
does not affect the prisoner's personal liberty, no appeal lies to the Court of
Cassation in respect of it (Court of Cassation, judgments nos. 3141 of
14 February 1990 and 4687 of 4 February 1992).
99. Section 35 of the Prison Administration Act (Law no. 354 of 26 July
1975) provides that prisoners may send requests or complaints in a sealed
envelope to the following authorities: