LABITA v. ITALY JUDGMENT
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(i) the prison governor, prison inspectors, the director-general of penal
institutions and the Minister of Justice;
(ii) the judge responsible for the execution of sentences;
(iii) the judicial and health-care authorities who inspect the prison;
(iv) the president of the regional council;
(v) the President of the Republic.
D. The effect of section 41 bis of Law no. 354 of 1975 on the
censorship of correspondence
100. By section 41 bis of the Prison Administration Act, as amended by
Law no. 356 of 7 August 1992, the Minister of Justice is empowered to
suspend application of the ordinary prison regime – as laid down by
Law no. 354 of 1975 – in whole or in part if it fails to meet the standards
required to preserve public order and security. He must give reasons for so
doing and judicial review will lie. The provision may be applied only where
the prisoner has been prosecuted for or convicted of one of the offences set
out in section 4 bis of the statute. The offences concerned include those
linked to mafia activities. By Law no. 446 of 28 November 1999 that
provision is to remain in force until 31 December 2000.
101. Section 41 bis contains no list of the restrictions that may be
imposed. They must be determined by the Minister of Justice. When first
implemented, section 41 bis was construed as also empowering the Minister
of Justice to censor prisoners' correspondence.
102. In its judgments nos. 349 and 410 delivered in 1993, the Italian
Constitutional Court, which was examining whether that system was
consistent with the principle that the legislator's powers should not be
encroached upon, held that section 41 bis was compatible with the
Constitution. However, it stated that by virtue of Article 15 of the
Constitution a reasoned decision of the courts was required for any
restriction on correspondence to be imposed. The Minister of Justice was
accordingly not empowered to impose measures regarding prisoners'
correspondence.
E. Relevant provisions concerning preventive measures in individual
cases
103. The power to impose preventive measures was introduced by
Law no. 1423 of 27 December 1956. Such measures are intended to prevent
individuals regarded as a “danger to society” from committing offences.
The statute currently classifies three groups of people as a danger to society:
(a) anyone who on the basis of factual evidence must be regarded as being
an habitual offender; (b) anyone who on account of his conduct or life-style
must be regarded, on the basis of factual evidence, as habitually deriving his