AS TO THE AD MISSIBILITY OF

Application No. 35808/97

by Herbert Günter GIERLING

against Italy

The European Commission of Human Rights (First Chamber) sitting in private on 22 October 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

I. BÉKÉS

G. RESS

A. PERENIČ

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 June 1996 by Herbert Günter GIERLING against Italy and registered on 28 April 1997 under file No. 35808/97;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German national, born in 1952 and currently residing in Mijascostas (Spain).

The facts of the present case, as submitted by the applicant, may be summarized as follows.

The applicant is the owner and the master of a cargo-ship.

On 20 April 1993 the Public Prosecutor's Office attached to the Barcellona ( Messina ) District Court ordered that the applicant's ship be searched.

On 21 April 1993 the Italian police ( guardia di finanza ) searched the applicant's ship. No drug were found on board. On the same date the Public Prosecutor Office attached to the Barcellona District Court ordered the seizure of the ship and of its contents, including certain documents and 99,200,000 Italian lira. The applicant and the other five crew members were arrested.

On 24 April 1993 the Judge for Preliminary Investigation attached to the Barcellona District Court ordered that they be detained on remand. Grounds for the order were the serious circumstantial evidence against them - the applicant himself having stated, when the Public Prosecutor questioned him after his arrest, that he was involved in a hashish traffic between Morocco and Italy -, the seriousness of the offence of which they were suspected, the risk that the suspects would abscond and the risk that they would commit further crimes.

On 11 May 1993 the applicant, questioned by the Public Prosecutor in the presence of his lawyer and an interpreter, stated that he had loaded a certain amount of hashish on his ship in Morocco and that, on 18 April 1993, he had dropped it in the sea. In exchange for his cooperation with the investigating authorities the applicant was granted certain advantages ( forme assistenziali ).

On an unspecified date about six months later four crew members were released.

On an unspecified date the proceedings against the applicant and his co-accused were transferred to the preliminary investigation office attached to the Milan District Court.

By an act issued on 31 March 1994, the latter preliminary investigation office ordered that the fifth crew member be kept in detention on remand. It appears that he was released about one year later.

On 20 April 1994 the Judge for Preliminary Investigation ordered that the applicant be released, the one-year time-limit for his detention on remand having expired. The applicant was released on 23 April 1994. He settled down in an accommodation provided by the investigating authorities.

On 21 July 1994 the applicant, in the presence of two lawyers, stated that he had cooperated with the investigating authorities, i.e. he had confessed having participated in a drug trafficking operation, only on account of the privileges he had been offered in exchange.

On 18 August 1994 the public prosecutor office attached to the Antimafia Division of the Milan District Court ordered that the privileges which had been granted to the applicant for his cooperation be lifted and, in particular, that the applicant leave the apartment which had been assigned to him.

The applicant's ship and its contents are currently under seizure.

COMPLAINTS

1. The applicant complains, under Article 6 para. 1, about the length of the criminal proceedings brought against him.

2. The applicant also complains, under Article 1 of Protocol No. 1, about the prolonged seizure of his ship and its contents and in particular 92,200,000 Italian lira.

3. The applicant invokes also Article 13 insofar as his case has not (yet) been brought before a court.

4. The applicant also complains, under Article 5 paras. 4 and 5, about his detention.

5. The applicant further complains, under Article 3, that he was ill-treated by the police while in custody.

6. The applicant finally complains that he was treated like a criminal by the police and the investigating authorities. He invokes Article 6 paras. 1, 2, 3 (a) (b) (c) (d) (e).

THE LAW

1. The applicant complains, under Article 6 para. 1, about the length of the criminal proceedings brought against him.

He also complains, under Article 1 of Protocol No. 1, about the prolonged seizure of his ship and of its contents.

The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 48 para. 2 of the Rules of Procedure, to give notice of them to the respondent Government.

2. The applicant invokes also Article 13 insofar as his case has not (yet) been brought to court.

The Commission recalls that the requirements of Article 13 are less strict than those of Article 6 para. 1 (cf., inter alia , Eur. Court HR, Hentrich v. France judgment of 22 September 1994, Series A no. 296-A, p. 24, para. 65). The Commission observes that the applicant complains under Article 13 about the delay in examining his case, a matter which falls to be examined under Article 6 para. 1 of the Convention (see above). Therefore the Commission does not find it necessary to examine the applicant's complaint also under Article 13 of the Convention.

3. The applicant also complains, under Article 5 paras. 4 and 5, about his detention.

The applicant further complains, under Article 3, that he was ill-treated by the police while in custody.

However, the Commission is not required to decide whether or not the facts complained of disclose any appearance of a violation of the Convention for the following reasons.

The Commission recalls that, pursuant to Article 26 of the Convention, it can only deal with a matter within a period of six months from the date on which the final decision was taken.

To the extent that the applicant complains about his detention, the Commission observes that the applicant's detention ended on 23 April 1994. As regards the alleged ill-treatment, it dates back to the period of the applicant's detention, i.e. it ended prior to 23 April 1994. The Commission notes that the present application was introduced on 3 June 1996 which is more than six months later.

It follows that these complaints have been introduced out of time and must therefore be rejected under Article 27 para. 3 of the Convention.

4. The applicant finally complains that he was treated as a criminal by the police and the investigating authorities. He invokes Article 6 paras. 1, 2, 3 (a) (b) (c) (d) (e).

Article 6 of the Convention reads as follows:

"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence ;

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

d. to examine or have examined witnesses against him and to obtain the  attendance  and examination of witnesses  on

his behalf under the same conditions as witnesses against              him;

e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

The Commission first recalls that the guarantees of paragraph 3 of Article 6 are specific aspects of the general right to a fair trial set forth in paragraph 1 of the same article (cf. Eur. Court HR, Daud v. Portugal judgment of 21 April 1998, Reports of Judgments and Decisions 1998 - II, p.749, para. 33).

As regards paragraph 2 of Article 6, the Commission recalls the Court's case law according to which the presumption of innocence enshrined in this provision is one of the elements of the fair criminal trial that is required by paragraph 1 (cf. Eur. Court HR, Bernard v. France judgment of 23 April 1998, Reports of Judgments and Decisions 1998 - II, p. 879, para. 37, and Eur. Court HR, Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, p. 16, para. 35).

Accordingly the Commission will considers the applicant's complaint from the standpoint of these provisions (Article 6 paras. 1, 2 and 3) taken together. In doing so, it must consider the proceedings as a whole, that is to say once they have been concluded (cf., inter alia , Bernard v. France loc. cit., p. 879, para 37.

The Commission notes that in the instant case the proceedings are currently at the stage of the preliminary investigation and that the applicant has not been committed for trial.

The Commission recalls that it is not impossible that a particular element could be so decisive in itself that the fairness of the proceedings could be determined at an earlier stage (cf. No. 18892/91, Dec. 3.12.93, D.R. 76, p. 51). However the Commission considers that no such circumstances have been disclosed in the present case where the applicant generally complains about having been "treated like a criminal" by the investigating authorities.

The Commission considers that the applicant's complaints under Article 6 are premature and must therefore be rejected under Article 27 para. 2 of the Convention.

For these reasons, the Commission

DECIDES TO ADJOURN the examination of the applicant's complaints about the length of the criminal proceedings brought against him and about the seizure of his property;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary              President

   to the First Chamber                          of the First Chamber