ITEMID: 001-57498
LANGUAGEISOCODE: ENG
RESPONDENT: ITA
BRANCH: CHAMBER
DATE: 1980
DOCNAME: CASE OF GUZZARDI v. ITALY
IMPORTANCE: 2
CONCLUSION: Preliminary objections dismissed;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Criminal charge);No violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
TEXT: 9. Mr. Guzzardi, an Italian citizen born in 1942, had left Palermo (Sicily) in 1966 to take up residence in Vigevano (in the province of Pavia). He was arrested on 8 February 1973, placed in detention on remand in Milan and then charged with conspiracy and being an accomplice to the abduction on 18 December 1972 of a businessman; the latter had been freed by his kidnappers on 7 February 1973 after payment of a substantial ransom.
The applicant was acquitted on 13 November 1976 by the Milan Regional Court (Tribunale di Milano) for lack of sufficient evidence, but convicted on 19 December 1979 by the Milan Court of Appeal which sentenced him to eighteen years’ imprisonment and a fine.
The criminal proceedings in question are not in issue, at least not in direct issue, in the present case.
10. Under Article 272 (first paragraph, item 2) of the Italian Code of Criminal Procedure, the applicant’s detention on remand – during which he married his fiancée by whom he shortly afterwards had a son - could not continue for more than two years; it thus had to terminate on 8 February 1975 at the latest.
11. On that date, Mr. Guzzardi was removed from Milan gaol and taken under police escort to the island of Asinara, which lies off Sardinia.
12. On 23 December 1974, the Milan Chief of Police (questore) had in fact sent to the Milan State prosecutor (procuratore della Repubblica) a report recommending that Mr. Guzzardi be subjected to the measure of "special supervision" provided for in section 3 of Act no. 1423 of 27 December 1956 ("the 1956 Act" - see paragraphs 45-51 below) and section 2 of Act no. 575 of 31 May 1965 ("the 1965 Act" - see paragraph 52 below). The report referred to indications that although the applicant claimed to be working in the building trade, he was actually engaged in illegal activities and belonged to a band (cosca) of mafiosi; it listed four convictions pronounced against him in 1965, 1967, 1969 and 1972 and described him as "one of the most dangerous" of individuals.
Following an application made in accordance with this recommendation by the State prosecutor on 14 January 1975, the Milan Regional Court (2nd Criminal Chamber) directed on 30 January that Mr. Guzzardi be placed under special supervision for three years, the measure to be combined with the obligation to reside "in the district (comune) of the island of Asinara", a locality that had been designated by the Ministry of the Interior. In its decision the Court further directed that the applicant should:
- start looking for work within a month, establish his residence in the prescribed locality, inform the supervisory authorities immediately of his address and not leave the place fixed without first notifying them;
- report to the supervisory authorities twice a day and whenever called upon to do so;
- lead an honest and law-abiding life and not give cause for suspicion;
- not associate with persons convicted of criminal offences and subjected to preventive or security measures;
- not return to his residence later than 10 p.m. and not go out before 7 a.m., except in case of necessity and after having given notice in due time to supervisory authorities;
- not keep or carry any arms;
- not frequent bars or night-clubs and not take part in public meetings;
- inform the supervisory authorities in advance of the telephone number and name of the person telephoned or telephoning each time he wished to make or receive a long-distance call.
13. Mr. Guzzardi appealed to the Milan Court of Appeal; his appeal had no suspensive effect (section 4, sixth paragraph, of the 1956 Act) and so did not prevent the contested decision from being put into effect.
In a memorial of 10 February 1975, his lawyer, Mr. Catalano, challenged the decision on a number of grounds, alleging that it was invalid and unjustified. He submitted, in particular, that on Asinara his client could neither find employment nor live together with his wife and child; there was thus an inconsistency between the reasoning and the operative provisions of the decision of 30 January. In addition, the decision referred to a non-existent district since in point of fact the island was no more than a sub-division of the district of Porto Torres (Sardinia). Mr. Catalano requested the Court of Appeal, in the first place, to quash the decision in its entirety; in the alternative, to limit it to special supervision without an order for compulsory residence; in the further alternative, to designate a district in Northern Italy where the applicant might find work, live with his family, meet with his lawyer in order to prepare his defence in the criminal proceedings and attend, as and when necessary, an urological clinic to receive the treatment required by his state of health.
14. On 12 February, the Court of Appeal (1st Criminal Chamber), by way of a preliminary ruling on submissions to the same effect by the public prosecutor, ordered that Mr. Guzzardi be transferred to the urological clinic of Sassari hospital (Sardinia); it also instructed its registry to seek information from the carabinieri in Sassari on the possibility of finding accommodation for three people and work on the island of Asinara.
However, on 14 February the prosecuting authorities requested the Court of Appeal to revoke or suspend the aforesaid order. They pointed out that during his detention on remand Mr. Guzzardi had refused to submit to analyses in the University of Milan urological clinic; that experts considered that he was probably not suffering from any serious illness; that his covert intention was to use hospitalisation as a means of escape; that section 3 of the 1956 Act did not prohibit an order for compulsory residence in a given locality within a district; that the Court of Cassation had so held in two judgments, one of which concerned precisely the island of Asinara, which was, besides, "potentially" one of the best places in Italy for tourism.
The Court of Appeal consequently suspended its order on the same day and directed that further hearings on the matter be held on 12 March 1975.
15. The officer commanding the criminal investigation department of the Milan carabinieri wrote, also on 14 February 1975, to the Court of appeal with the following information which had been supplied by the Sassari carabinieri:
- for those subjected to compulsory residence on Asinara, there were only two flats suitable for accommodating a family; they were occupied by the families in turn for periods of between thirty and sixty days;
- the island offered no possibility of permanent employment; there was just one firm which employed two residents in turn for short spaces of time;
- the police stationed on Asinara were in a position to effect the requisite supervision.
16. On 17 and 21 February 1975, Mr. Catalano filed memorials with the Court of Appeal challenging the "fanciful" statements of the prosecuting authorities and requesting that further enquiries be undertaken in the shape of an investigation on the spot (sopral-luogo). In his view, his client was physically and mentally a prisoner (carcerato) on Asinara; he was vegetating there in conditions worse than those of his detention on remand. The applicant himself, in a letter of 20 February, described the island as a "veritable concentration camp".
17. On 12 March 1975, the Milan Court of Appeal (1st Chamber) dismissed the appeal and confirmed the decision of 30 January. As regards Mr. Guzzardi’s health and the absence of violation of section 3 of the 1956 Act, the Court of Appeal relied in substance on the arguments that had already been invoked by the prosecuting authorities on 14 February (see paragraph 14 above, second sub-paragraph). It found no good reason for regarding Asinara as an unsuitable locality for compulsory residence. It emphasised that the contested measure was designed to separate the individual from his milieu and render his contacts with it more difficult. This requirement took precedence over other problems, such as the absence of regular employment and of adequate accommodation for a family; moreover, at the time of his marriage the applicant could not have hoped to live with his wife and son since he was then in detention on remand and under a serious charge. His criminal record, the most disquieting criminal activities in which he engaged under the cloak of honesty, his violent character and his exceptional cunning showed that he presented a marked danger to society (spiccata pericolosità sociale). Supervision of such an individual was sufficiently important to justify the curtailment of other individual legal interests taken into account by the law (l’affievolimento di alter situazioni giuridiche soggettive che la legge prende in considerazione).
18. Mr. Guzzardi appealed to the Court of Cassation. In a supplementary memorial of 3 April 1975, his lawyer put forward three grounds of appeal pursuant to Articles 475 par. 3 and 524 par. 1 and 3 of the Code of Criminal Procedure:
(i) It was not permissible under section 3 of the 1956 Act to make an order for a person’s compulsory residence - which amounted to subjecting him to a "judicial sanction" limiting his private and family liberty (libertà privata e famigliare) - on any scrap of land (qualunque pezzo di terra), such as Asinara, regardless of its area (quali che siano i metri quadrati entro cui si deve osservare il soggiorno), rather than on the whole of the territory of a district. The contrary interpretation adopted by the Court of Appeal was "restrictive and aberrant" and disregarded a man’s right to private and family life (alla vita privata e famigliare) which was guaranteed by the European Convention and the Italian Constitution. If the Court of Cassation were nevertheless inclined to follow that interpretation, it should refer the matter to the Constitutional Court.
(ii) The Court of Appeal’s statement that Mr. Guzzardi did not need any particular medical treatment was a misrepresentation of the facts (travisamento dei fatti).
The law did not permit any curtailment of legal interests which it protected, conferred and made mandatory (non consent[iva] veruno affievolimento di situazioni giuridiche tutelate, volute e pretese proprio dalla legge). It followed that the Court of Appeal had applied the law incorrectly (errata applicazione della legge) when it held that the necessity for special supervision justified such curtailment.
(iii) Finally, the reasoning was contradictory (contraddittorietà) in various respects. Thus, the Court of Appeal had - without an investigation on the spot - deemed Asinara to be suitable for the execution of the measure complained of although the applicant would not there be able to comply with the directives contained in the Milan Regional Court’s decision.
Mr. Catalano therefore requested the Court of Cassation to quash the judgment of 12 March 1975 after transmitting the file to the Constitutional Court for the purpose of obtaining a ruling that section 3 of the 1956 Act, as interpreted by the Court of Appeal, was incompatible with Article 13, fourth paragraph, and Article 27, second and third paragraphs, of the Constitution.
Article 13 concerns "personal liberty": the fourth paragraph provides that "the infliction of any physical or mental violence on persons subjected to any form of restriction on their liberty shall be a punishable offence". The second paragraph of Article 27 enshrines the presumption of innocence; the third paragraph stipulates that "punishment may not take the form of treatment repugnant to feelings of humanity and must be aimed at re-education of the convicted person".
19. The Court of Cassation gave judgment on 6 October 1975. It accepted the submissions of the public prosecutor attached to the Court of Cassation and dismissed the appeal as being devoid of foundation.
As regards the first ground of appeal, the Court of Cassation pointed out that its settled case-law established that under certain conditions, which were satisfied in the present case, an order for compulsory residence could refer to a given locality within a district. Likewise, the "curtailment" of, and the "undoubted limitations" on, "various rights of the individual concerned" stemmed directly from the application of measures which had on numerous occasions been recognised to be in conformity with the Constitution, for example in a judgment delivered by the Constitutional Court on 15 June 1972.
As regards the second ground, the Court of Cassation held that in the particular circumstances the Court of Appeal had been right in turning down the argument concerning Mr. Guzzardi’s state of health.
As regards the third ground, the Court of Cassation perceived no contradiction since the intended object was to remove the applicant from Milan and to separate him from the members of the mafia who carried on their activities there without hindrance.
The Court also declared the question of constitutionality raised by the applicant to be manifestly ill-founded. There again, the public prosecutor had cited the above-mentioned judgment of 15 June 1972; he had in addition referred to the administrative nature of the decision designating the locality (natura amministrativa della determinazione del luogo).
20. On 14 November 1975, Mr. Catalano made two applications to the Milan Regional Court.
The first application was addressed to the President of the 2nd Criminal Chamber in his capacity of judge supervising the execution of sentences (giudice di sorveglianza). It requested him to cancel (abolire) the compulsory residence order, maintaining that if the President, or someone designated by him for the purpose, were to visit Asinara, he would be left in no doubt that the obligation to live there was contrary to the law, the legislation, justice and individual human rights.
The second application invited the 2nd Chamber to substitute for Asinara a district where Mr. Guzzardi could work, not come into contact with suspects (indiziati) and live with his wife and son who had been obliged to leave the island since their permit to reside there had expired.
The lawyer referred to an Order of 27 October 1975 concerning an appeal by one Ignazio Pullarà; the Milan Court of Appeal had stated therein that it was for the judge supervising the execution of sentence to make an appraisal of living conditions on Asinara.
The 2nd Criminal Chamber gave its decision on 20 January 1976. First of all, it affirmed that the implementation of preventive measures was a matter within the competence of the police authorities (pubblica sicurezza) and not of the judge supervising the execution of sentences. It added that exigencies of the protection of society justified the special form of isolation undergone by those sent to Asinara, namely individuals who were extremely dangerous. However, those exigencies necessitated neither separating those concerned from their families nor depriving them of regular employment. Accordingly, the Regional Court, whilst rejecting both applications, directed that the text of its decision be communicated to the Minister of the Interior and to the Sassari questore.
21. On 21 July 1976, the Milan questore requested the Milan Regional Court to order Mr. Guzzardi’s transfer to the district of Force, in the province of Ascoli Piceno, on the Italian mainland. The reason advanced was that the simultaneous presence on Asinara of the applicant and of his co-accused (coimputato), Ignazio Pullarà, who was also in the process of "serving" (scontare) a compulsory residence measure, might have unfortunate repercussions on the ensuing stages of the criminal proceedings and, above all, on security on the island.
The Regional Court (vacation Chamber) gave a decision to that effect, and for the same reasons, on the following day; it specified that the remainder of its decision of 30 January 1975 (see paragraph 12 above) was to continue in force.
22. Mr. Guzzardi had to remain at Force until 8 February 1978, on which date the three-year period fixed by the last-mentioned decision expired.
23. Asinara lies off the north-west tip of Sardinia. The island, which is long and narrow with a rugged terrain, measures about 20 km. at its greatest length. Whilst the island as a whole covers 50 sq. km., the area reserved for persons in compulsory residence represented a fraction of not more than 2.5 sq. km. This area was bordered by the sea, roads and a cemetery; there was no fence to mark out the perimeter. About nine-tenths of the island was occupied by a prison.
24. Administratively, the island forms an integral part of the district of Porto Torres, a small Sardinian coastal town one hour away by boat. The southernmost point of the island can also be reached in fifteen minutes if one embarks at Stintino, to the north of Porto Torres. Sea communications are interrupted during very bad weather.
25. The principal settlement on the island, Cala d’Oliva, houses nearly all of the island’s permanent population - approximately two hundred people; this population comprises the prison staff and their families, schoolteachers, a priest, the post office employees and a few tradesmen.
The persons in compulsory residence were lodged in the hamlet of Cala Reale which consists mainly of a former medical establishment and certain other buildings including a school, a chapel and a carabinieri station where the applicant had to report twice a day (see paragraph 12 above).
26. The Government maintained before the Commission that one could circulate at will within Cala Reale. According to Mr. Guzzardi on the other hand, an instruction issued by the officer in charge of the carabinieri restricted movement for persons in compulsory residence to a radius of about 800 metres.
27. Persons in compulsory residence had no access to the prison zone or to Cala d’Oliva. The inhabitants of the latter village could, in contrast, visit Cala Reale whenever they pleased, whereas outsiders - such as tourists - were in principle not allowed to go there.
28. Persons in compulsory residence could apply for authorisation to visit Sardinia or the Italian mainland if they had good reasons, such as medical treatment, family grounds or compliance with an order of the judicial authorities.
The Government stated that authorisation was "normally" given on production of the appropriate documents of following a brief police enquiry, but according to the applicant it was very difficult to obtain. Even in the case of urgent medical treatment, so he contended, there was a long delay, sometimes as much as a whole month. In any event, such trips were made under the strict supervision of the carabinieri.
29. There existed the additional possibility of going in turn to Porto Torres to buy provisions, likewise after authorisation and under supervision. The frequency of the crossings as well as the number of participants were the subject of dispute. The Government spoke of four persons per week, whereas for Mr. Guzzardi it was just one; he claimed that he had had to wait six months before receiving the necessary permission.
30. Most of the persons in compulsory residence were housed in two buildings belonging to the former medical establishment; these buildings were fairly large and consisted principally, so it seems, of bedrooms with one or two beds.
A third building, a small construction known as the "Pagodina", was allocated to "residents" (soggiornanti) who were accompanied by their families. The "Pagodina" contained two flats each comprising a bedroom and a kitchen.
The applicant lived in one of the main buildings or in the "Pagodina", depending upon whether he was alone or with his family. He could not go out between 10 p.m. and 7 a.m., except in case of necessity and after having notified the authorities in due time (see paragraph 12 above).
31. These various buildings were somewhat dilapidated. According to Mr. Guzzardi, their state of disrepair was such as to render them almost uninhabitable. For the Government, on the contrary, the condition of the buildings was "acceptable" up to the time when some of their occupants committed acts of vandalism, an occurrence not denied by the applicant.
32. The medical service at Cala Reale was provided by the prison doctor. He lived at Cala d’Oliva but could be reached by telephone and be on hand within the space of about thirty minutes.
Before the Commission, the Government submitted that there was a dispensary at Cala Reale, with a male nurse in attendance; the applicant disputed the presence of any nurse.
When persons in compulsory residence needed to be hospitalised or to consult a specialist, they were sent to the State hospital and university clinics in Sassari. Such journeys required authorisation from the competent court - the Milan Regional Court in the applicant’s case (see also paragraph 28 above).
33. The Government medical officer for Sassari province was responsible for supervising health and sanitary conditions at Cala Reale. While the Government considered the level of the conditions to be good, in Mr. Guzzardi’s view they left much to be desired. In particular, he complained of the lack of any arrangements for removing rubbish (see also paragraph 42 below).
34. Persons in compulsory residence could apply to the administrative authority for permission to have their nearest relations join them on the island and stay with them either in the "Pagodina" (see paragraph 30 above) or, failing that, in the rather confined bedroom - 4 metres by 4 metres - allocated to each of them.
The Government stressed before the Commission that the shortage of water on Asinara, which had neither a spring nor an aqueduct and was supplied periodically by navy tankers, made is necessary to limit the number of persons authorised to stay there.
35. Initially, the applicant’s wife and son and also, from time to time, his parents-in-law and nephew lived together with him.
On 9 October 1975, the members of his family were ordered to leave the island; their residence permits had expired on 28 August and he had not applied for their renewal. They were, however, able to return at the beginning of December and stayed with him until his departure for Force (see paragraph 21 above).
36. There is a chapel at Cala Real. According to Mr. Guzzardi, it remained closed except for religious services at Christmas and Easter. The Government submitted in reply that the religious authorities - there was a priest living at Cala d’Oliva – would willingly have opened the chapel for services at any time had they been asked to do so, but that no one had ever made such a request.
37. The applicant also claimed that a mass was celebrated every Sunday by the prison chaplain, but on premises situated outside the area in which persons in compulsory residence could move freely (see paragraph 26 above).
38. For persons in compulsory residence, the prospects of employment were limited to the openings offered by a firm at Cala Reale, Massidda-Costruzioni edili, which were somewhat modest – four persons in 1975 and eleven in 1976. The Government submitted that Mr. Guzzardi had shown no interest at all in this possible source of work. Mr Guzzardi did, however, produce a certificate from Massidda showing that he had worked for the company from October 1975 to May 1976 and had subsequently made repeated and pressing requests for employment, but without success.
39. Persons in compulsory residence could obtain books and newspapers at Porto Torres, either themselves or through other people who went there. They had the use of one television set according to the applicant, several sets according to the Government. The existence of communal canteen and recreation facilities was also the subject of dispute before the Commission.
40. Mr. Guzzardi had to give to the authorities prior notice of the name and number of the person telephoned or telephoning whenever he wished to make or receive a call (see paragraph 12 above). On the other hand, his correspondence in the form of letters and telegrams was not monitored.
41. On 11 August 1975, the applicant sent a letter to the Porto Torres pretore in which he confessed that he had not discharged certain of the obligations imposed on him by the Milan Regional Court on 30 January (see paragraph 12 above), namely seeking employment, looking for a fixed residence and not associating with other "residents" and criminal elements. He stated that he had tried in vain to comply with these directives and that the officer in charge of the carabinieri on Asinara had never raised any objection despite section 12 of Act no. 1423 of 27 December 1956 (see paragraph 51 below). No action was taken on his letter.
42. In addition, on 9 January 1976 all the persons in compulsory residence addressed a collective protest to the Sassari questore. They claimed (a) the allocation of a suitable house to each of them; (b) permanent access to Cala Reale by members of their families; (c) work opportunities capable of providing maintenance for them and their families, the subsidy of 45,000 or 46,500 Lire paid by the Ministry not being sufficient for the purpose; (d) the mooring at Cala Reale, instead of Porto Torres, of the boat used for transporting them; (e) the right to go individually and at least once a week to Porto Torres to purchase food supplies; (f) the reopening of the post office at Cala Reale; (g) the improvement of the health and sanitary conditions in the inhabited zones and adjoining areas; (h) on-the-spot medical assistance and the possibility of consulting specialists without delay; (i) more humane treatment from the bodies coming under the authority of the police headquarters; (j) proper upkeep of the premises; (k) installation of a second telephone.
The Government asserted that they thereupon took certain steps to satisfy some of these requests, in particular as regards items (a), (b), (d) and (f).
43. The situation of the "residents" at Cala Reale was also criticised in the press. The administrative authorities investigated possible remedial measures but, in the face of the expense involved and time needed, did not pursue the matter. In consequence, the Ministry of the Interior decided in August 1977 to strike (depennare) the island out of the list of places for compulsory residence. By that date Mr. Guzzardi had been living at Force for more than a year (see paragraph 21 above); however, two of the documents filed show that his application to the Commission was not unconnected with the Ministry’s decision. The last individuals in compulsory residence left Asinara on 17 November 1977.
44. The treatment complained of by the applicant was based on Act no. 1423 of 27 December 1956 and Act no. 575 of 31 May 1965.
45. This Act makes provision for a variety of preventive measures which can be taken against "persons presenting a danger for security and public morality" (misure di prevenzione nei confronti delle persone pericolose per la sicurezza e per la pubblica moralità).
46. Under section 1, the Act applies to, amongst others, "idlers" and "habitual vagrants who are fit for work" (gli oziosi e i vagabondi abituali, validi al lavoro), "anyone who is regularly and notoriously involved in illicit dealings" (che sono abitualmente e notoriamente dediti a traffici illeciti) and individuals who, by reason of their behaviour and style of life (tenore di vita), must be considered as habitually living, even in part, on the proceeds of crime or on the rewards of complicity therein (con il favoreggiamento), or whose outward conduct gives good reason to believe that they have criminal tendencies (che, per le manifestazioni cui abbiano dato luogo, diano fondato motivo di ritenere che siano proclivi a delinquere).
The Chief of Police may send to such persons a warning (diffida) in which he will call on them to mend their ways and notify them that, if not, the measures mentioned in the subsequent sections will be put into effect.
A report by the Milan Chief of Police (see paragraph 12 above) indicates that Mr. Guzzardi received such a diffida in Palermo on 26 September 1967 that is well before the events prompting his application to the Commission.
47. In the case of individuals who present a danger for public security or morality and are found elsewhere than at their place of residence, the Chief of Police may also send them back to that place and forbid them to return without prior authorisation or until after the expiry of a period not exceeding three years to the district from which they are being excluded; non-compliance with such an order will render them liable to a penalty of "arrest" (arresto) of between one and six months (section 2).
48. If an individual presenting a danger to public security or morality has not mended his ways despite the warning, he may, under section 3, be placed under special police supervision (sorveglianza speciale della pubblica sicurezza); if need be, this may be combined either with a prohibition on residence in one or more given districts or provinces or, in the case of a particularly dangerous person (particolare pericolosità), with an order for compulsory residence in a specified district (obbligo del soggiorno in un determinato comune).
Only the Regional Court of the chief town of the province has power to order these measures; it will do so on the basis of a reasoned application by the Chief of Police to its President (section 4, first paragraph). The Regional Court must give a reasoned decision (provvedimento) in chambers within thirty days. It will first hear the public prosecutor’s department and the person concerned, the latter being entitled to submit written pleadings and to be assisted by a lawyer (section 4, second paragraph).
The prosecuting authorities and the person concerned may, within ten days, lodge an appeal which does not have suspensive effect; the Court of Appeal has to give a reasoned decision (decreto) in chambers within thirty days (section 4, fifth en sixth paragraphs). That decision may in turn and on the same conditions be the subject of a further appeal to the Court of Cassation which must give its ruling in chambers within thirty days (section 4, seventh paragraph).
49. When adopting one of the measures listed in section 3, the Regional Court will specify for how long it is to remain in force - not less than one and not more than five years (section 4, fourth paragraph) - and will give directives with which the person in question must comply (section 5, first paragraph).
In the case, as here, of an individual who has been placed under special supervision because he is suspected of living on the proceeds of crime, the Regional Court will direct him to look for work within an appropriate time, to establish his residence and advise the police authorities (autorità di pubblica sicurezza) thereof and not to leave it (allontanarsi) without first informing them (section 5, second paragraph; see paragraph 12 above).
In all cases, The Regional Court will order the individual to lead an honest and law-abiding life; not to give cause for suspicion; not to associate with persons convicted of criminal offences and subjected to preventive or security measures; not to return to his residence at night after, and not to go out in the morning before, a specified time, except in case of necessity and after having given notice in due time to the authorities; not to keep or carry any arms; not to frequent bars or night-clubs; not to take part in public meetings, etc. (section 5, third paragraph; see also the fourth paragraph of that section and paragraph 12 above).
Anyone who, like Mr. Guzzardi is subject to a compulsory residence order may also be directed not to leave (andare lontano) his house without notifying the supervisory authorities (autorità preposta alla sorveglianza) and to report to them on stated days and whenever called upon to do so (section 5, fifth paragraph; see paragraph 12 above). The person concerned will be issued with a card which he must carry with him and show to the police whenever so requested (section 5, sixth paragraph).
50. The Chief of Police is responsible for the implementation of these various measures (section 7, first paragraph). On application by the person concerned and after the police have been heard, the decision ordering the measures may be revoked or varied by the authority (dall’organo) which issued it, insofar as the grounds therefore no longer exist (section 7, second paragraph).
51. Any person who fails to abide by the obligations attaching to special supervision or by those specified in a compulsory residence order is liable to a penalty of "arrest" of three months to one year or six months to two years, respectively (section 9, first and second paragraphs, and section 12, first paragraph).
52. The 1965 Act completes this panoply of legal texts with provisions directed against the mafia (disposizioni contro la mafia). According to section 1, the Act is applicable to persons - such as Mr. Guzzardi - whom there are strong reasons to suspect of belonging to mafia-type associations (indiziati di appartenere ad associazioni mafiose). State prosecutors may propose that the preventive measures described above be taken against such persons, even if no prior warning has been given; the decision rests with the courts (section 2). Under section 5, wrongfully leaving the district of compulsory residence is punishable by "arrest" of six months to two years.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 3
6
8
9
NON_VIOLATED_PARAGRAPHS: 6-1
8-1
9-1


ITEMID: 001-91654
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: THE WALL STREET JOURNAL EUROPE SPRL v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
TEXT: The first applicant, Wall Street Journal Europe Sprl, is a corporation registered under Belgian law which publishes a daily newspaper in Europe, the “Wall Street Journal Europe”, which reports on developments in international business, politics and diplomacy. The second applicant, Frederick Kempe, is a United States national who was the editor and associate publisher of the newspaper. He was born in 1954 and lives in Belgium. The third applicant, James Dorsey, is a German national who was born in 1951, is a journalist and lives in the Netherlands. The fourth applicant, Glenn Simpson, is a United States national who was born in 1964, is a journalist and lives in Belgium. The fifth applicant, Raju Narisetti, is a United States national who was born in 1966, is the Managing Director of the newspaper and lives in Belgium. They were represented before the Court by Mr M. Stephens, a lawyer practising in London.
On 6 February 2002 the Wall Street Journal Europe (“WSJE”) published on its front page an article written by the third applicant and headed “Saudi officials monitor certain bank accounts” with a smaller sub-heading stating “focus is on those with potential terrorist ties”. The article reported, contrary to various other publications, that the Saudi Arabian Monetary Authority was in fact monitoring bank accounts associated with some prominent businessmen so as to prevent the funnelling of funds to terrorist organisations. It also stated that the monitoring had been requested by United States law enforcement agencies.
The article attributed the information to United States officials and Saudis. A number of companies and individuals were named, including the Jameel Group of Companies. The applicants submitted that the story had emerged through investigative journalism in Saudi Arabia, where access to information was particularly difficult for European newspapers. The third applicant was one of the very few Arabic-speaking Western reporters who had been able to obtain a visa for Saudi Arabia after the attacks in New York of 11 September 2001. The third applicant’s sources had been promised anonymity given that five of them were resident in Saudi Arabia, where the government would carry out brutal reprisals were they identified. The story was approved by senior staff in Washington, who had sought confirmation of it from their sources in the United States Treasury Department.
Mr Jameel, who was head of a group of companies, and one of the corporate entities forming part of the Jameel Group, sued the WSJE for libel. The WSJE denied that the article was defamatory. Given the importance of maintaining the confidentiality of its sources and the fact that evidence in support of the publication was inaccessible in Saudi Arabia, the WSJE did not seek to rely on the defence of justification in the proceedings.
On 7 October 2003 Eady J made two rulings as to the meaning of the words complained of and as to the admissibility and relevance of certain hearsay evidence. He concluded that the words complained of were not capable of bearing a lesser defamatory meaning than that of “reasonable grounds to suspect” the claimants of having terrorist ties and of funnelling funds to terrorist organisations. Moreover, he held that the claimants could submit evidence aiming to prove that the central allegation of the article was wrong. In an interlocutory appeal the Court of Appeal accepted on 26 November 2003 that the judge was correct in deciding that the evidence was properly adducible with regard to evaluating the plea of qualified privilege: undermining the correctness of the central allegation would make it more difficult for the jury to believe the journalists when they claimed that they were nevertheless clearly given this information. However, the Court of Appeal accepted that the article was capable of having lesser defamatory meanings or a non-defamatory meaning.
The action was tried before a jury between 1 and 19 December 2003. Counsel for each of the parties invited the judge to ask the jury what meaning the words in the article bore. The judge declined to do so. In his direction to the jury, he stated:
“First, if you decide that it is defamatory of one or both claimants, we must all proceed on the basis that any such defamatory allegation is untrue. ... The defendants would be entitled to prove the truth of the allegation they have made ...They have chosen not to do that in this case and, therefore, the claimants are entitled to that presumption of innocence. It is not for them to prove anything ... If it does reflect in any way in a defamatory sense upon either of them, and ... the article does in some way link one or other or both of them to the funding of terrorism, then we accept, as an absolute fundamental assumption in this case, that such allegation is untrue.”
On 18 December 2003 the jury decided that the article was defamatory and that, subject to the judge’s decision on qualified privilege, the appropriate sums to be awarded by way of damages were 30,000 United Kingdom pounds sterling (GBP) to Mr Jameel and GBP 10,000 to his company. They found that the newspaper had proved that the author had received the information he claimed from a Saudi businessman, but had not proved that he had received confirmation from his other four sources. The jury further found that the third applicant had telephoned the office of the Jameel Group on the evening of 5 February 2002 and had spoken to a representative of the Group who asked for publication to be postponed for 24 hours so that Mr. Jameel, who was in Japan for business, could be contacted but that the third applicant had declined the request.
On 19 December 2003 Eady J. rejected the applicants’ plea of qualified privilege. He gave his reasons for that ruling on 20 January 2004. He noted that “(t)here is a presumption that defamatory words are false, unless and until the relevant defendant proves them to be true. Here, because there is no plea of justification, the presumption will prevail.” As to the meaning of the impugned words, the judge had regard to the ruling in the interlocutory proceedings as to the possible range of meanings, the jury’s finding that the words were defamatory and the sums which the jury had specified as appropriate damages. He concluded that the words were defamatory in some sense and that at worst they suggested that there were “reasonable grounds to suspect” involvement in the funnelling of money to terrorists.
The judge found that the author could not have written the article in reliance on the claims of the Saudi businessman alone. Further, there was no urgency that required the publication to be made before Mr Jameel had been given a reasonable opportunity to comment on the matters alleged and it would have been sufficient not to name him and his company since it would be contrary to the public interest to publish the names of those being monitored.
On 3 February 2005 the Court of Appeal upheld the trial judge’s decision but on a more limited ground: that the newspaper had failed to delay publication of the claimants’ names to give them time to comment. The renewed application for leave to appeal concerning the presumption of falsity was rejected. While a defendant who wished to rely on the defence of qualified privilege under Reynolds v. Times Newspapers Ltd ([2001] 2 AC 127), might have to prove that it was reasonable for him to believe that a defamatory article was true, the applicants had implicitly accepted that if the article proved to have a defamatory meaning, they had no belief that it was true. As to the contention that the common law presumption of falsity infringed Articles 6 and 10 of the Convention, the court noted that it was too late for the applicants to raise this point as the parties had conducted the case on the premise that any defamatory meaning that the article bore was presumed to be untrue unless the publishers pleaded and proved justification. Accordingly, permission to advance this ground of appeal was also refused. With regard to the application of the presumption of falsity in the judge’s direction to the jury, the court noted the following:
“we do not consider that it was appropriate for the jury to apply the presumption of falsity when considering the issues of fact that were relevant to Reynolds privilege. When considering whether Reynolds privilege attaches to the publication of a potentially defamatory article it is necessary to decide whether the publishers acted as ‘responsible journalists’ in publishing the article. This question has to be addressed having regard to the position as it should have appeared to those responsible for the publication at the time of publication. Whether or not the article was true is not normally relevant to this question- see GKR Karate v. Yorkshire Post [2001]. What has to be considered is whether it was responsible to publish the article having regard to the risk that the defamatory imputation in the article might prove to be untrue ... It does not seem to us right that the jury should apply a presumption that the article was false”.
However, counsel for the applicants had not objected to the judge’s direction to the jury and had failed to raise this issue at the trial. In any event, the trial judge found the publishers’ conduct wanting in respect of each of the points of guidance set out in Reynolds v. Times Newspapers Ltd (cited above), and concluded that it was not in the public interest to publish the names of those subjected to monitoring and that the author was at fault in not permitting the claimants to comment. Accordingly, leave to appeal on this ground was also refused.
Lastly, as to the judge’s failure to obtain from the jury an indication on the meaning they attached to the article, it was noted that:
“The only issue is whether he should have required the jury to define precisely the gravity of the defamatory meaning of the article. It seems to us that the choice was between “reasonable grounds to suspect” and “grounds for investigating”. The difference between the two can be a narrow one. Had the issue of Reynolds been likely to turn on whether the words bore the more or the less serious meaning, it might have been necessary to invite the jury to choose between the two. But the judge plainly did not consider that the precise nature of the defamatory sting was capable of affecting the outcome. We share that view.”
On 4 May 2005 leave to appeal to the House of Lords was granted in respect of the scope of the Reynolds defence of qualified privilege and the presumption of damage which allowed recovery of damages by the plaintiff corporation without proof of specific losses. Leave to appeal on the jury reasons issue was refused. On 11 October 2006 the appeal was unanimously allowed by the House of Lords on the scope of the Reynolds privilege and the claimant’s action was dismissed (Lord Bingham, Lord Hoffmann, Lord Hope, Lord Scott and Baroness Hale). The principal issue for determination by the House of Lords was whether the newspaper had been entitled to the defence of publication in the public interest established in Reynolds v. Times Newspapers (cited above).
Lord Bingham of Cornhill noted that a publisher is protected by qualified privilege if he has taken such steps as a responsible journalist would take to try and ensure that what was published was accurate and fit for publication. He found that the Court of Appeal’s ruling “subverts the liberalising intention of the Reynolds decision.” The subject matter of the article was of great public interest, written by an experienced specialist reporter and approved by senior staff who themselves sought to verify its contents. The article was unsensational in tone and factual in content. The claimants’ response was sought and the paper’s inability to obtain a comment recorded. It was very unlikely that a comment would have been revealing. Overall, he concluded that “it might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect.”
Lord Hoffmann also considered that the trial judge and the Court of Appeal had given the Reynolds defence “too narrow a scope”. He observed that it was the material which was privileged and not the occasion on which it was published while the burden was upon the defendant to prove that the conditions under which the material was privileged were satisfied. The trial judge had misdirected the jury when he requested them to find whether the author’s sources had indeed confirmed the reported facts bearing in mind that the reported facts had been known to be untrue. He noted that:
“The fact that the defamatory statement is not established at the trial to have been true is not relevant to the Reynolds defence. It is a neutral circumstance. The elements of that defence are the public interest of the material and the conduct of the journalists at the time. In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true but there are cases (‘reportage’) in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth. In either case, the defence is not affected by the newspaper’s inability to prove the truth of the statement at the trial.”
Applying the criteria set out in Lord Nicholls’ speech in Reynolds, he concluded that the article “was a serious contribution in measured tone to a subject of very considerable importance”, the inclusion of the defamatory statements – the names of large and respectable Saudi businesses – was an important part of the story showing that the US Treasury’s request extended to the heartland of the Saudi business world, and the applicants had behaved “fairly and responsibly in gathering and publishing the information” in compliance with the “responsible journalism” test. As to the applicants’ refusal to delay publication Lord Hoffmann noted that the delay would not have made a difference to the article: in the circumstances Mr Jameel would have been asked whether he knew of any reason why anyone would want to monitor his account and the answer would most likely have been in the negative. Failure to wait was not enough to deprive the newspaper of the defence that they were reporting on a matter of public interest. Hence, there was no basis for rejecting the newspaper’s Reynolds defence.
Baroness Hale of Richmond concluded that “if the public interest defence does not succeed on the known facts of this case, it is hard to see it ever succeeding”.


ITEMID: 001-22598
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: KÖLL v. AUSTRIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Georg Ress
TEXT: The applicant is an Austrian national, born in 1958 and living in Innsbruck.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a lawyer practising in Innsbruck (Austria). On 25 September 1996 he filed a request with the Tyrol Regional Government Office (Amt der Landesregierung) requesting a declaration that he was not a member of the local Tourism Federation (Tourismusverband). According to the Regional Tourism Act (Tourismusgesetz), the applicant had been considered to be a compulsory member of the Innsbruck Tourism Federation and had therefore been obliged to pay an annual contribution to that Federation. The applicant submitted in his request that, as a practising lawyer, he had no direct or indirect interests in Tyrol tourism.
On 2 April 1997, as the Tyrol Government Office had not reacted to his request, the applicant filed an application for a transfer of jurisdiction (Devolutionsantrag) with the appeal board established under the Tourism Act. On 4 April 1997 the appeal board requested the applicant to supplement his request by stating for what reasons he considered that he had no interest whatsoever in Tyrol tourism. In his statement the applicant explained that most of his clients had nothing to do with the tourist industry.
On 12 May 1997 the appeal board found that the applicant was a member of the Tourism Federation. Referring to the case-law of the Constitutional Court and Administrative Court, according to which lawyers were deemed to benefit from tourists in certain regions because they created more business for them, the board found that the applicant had not shown that in his particular case he had not benefited at all from the tourism in the region.
On 25 June 1997 the applicant filed a complaint with the Constitutional Court claiming that the compulsory membership of the Tourism Federation violated his right not to be member of an association, as guaranteed by Article 11 of the Convention. On 27 November 1997 the Constitutional Court refused to deal with the complaint for lack of prospects of success and transferred the case to the Administrative Court. On 9 February 1998 the Administrative Court requested the applicant to supplement his complaint. On 26 May 1998 the Administrative Court discontinued the proceedings as the applicant had failed to comply with the court’s request.
The Tyrol Regional Tourism Act provides for the establishment of local Tourism Federations with the statement that “all entrepreneurs of a community form a Tourism Federation” (Section 1 § 1). Section 1 § 1 further provides that “Tourism Federations are public law institutions”. According to Section 2 § 1 of the Tyrol Tourism Act, compulsory members of a Tourism Federation are those entrepreneurs who are economically, directly or indirectly, interested in Tyrol tourism and who have a permanent establishment or place of business in the area of the Tourism Federation. This compulsory membership starts with the taking up of a business according to Section 2 § 1 and ends with its termination (Section 2 § 2). The Regional Government Office (Amt der Landesregierung) is competent to take a decision on the compulsory membership of an entrepreneur upon his request, that of the chairman (Obmann) of a Tourism Federation or ex officio (Section 2 § 3).
According to Section 30 § 1 members are liable to compulsory contributions, which are calculated on the basis of their taxable turnover. The amount of the contribution due is fixed by the Office of the Regional Government on the basis of the member’s turnover tax orders which are furnished by the Federal Tax Authorities. (Sections 36 and 37). The Office of the Regional Government, which collects the contributions, has to apply the Regional Tax Code (Section 38 § 1). Against contribution orders issued by the Office of the Regional Government an appeal lies with an appeals board (Section 38 § 2), which is composed of civil servants from the Office of the Regional Government, the Regional Chamber of Commerce, the Regional Chamber of Labour and the Regional Chamber for Agriculture.
The tasks of a Tourism Federation are the promotion of the interests of local tourism, inter alia, by developing forms of tourism linked to local specificity, by promoting the understanding of the economic importance of tourism, and by supporting and training the members of the Tourism Federation (Section 4).
Sections 39 to 42 provide for the control of the Tourism Federations by the Regional Government. The Regional Government may, inter alia, request any information from a Tourism Federation, inspect its files and accounts and send delegates to plenary sessions, to sessions of the supervisory board and to sessions of the management board (Section 39 § 2). The Regional Government may also quash any decision of a Tourism Federation that is contrary to the law (Section 39 § 4).