Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31143/96

by Rosario INDELICATO

against Italy

The European Commission of Human Rights sitting in private on

15 September 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 February 1994

by Rosario INDELICATO against Italy and registered on 24 April 1996

under file No. 31143/96;

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 an Italian national born in 1959. Before the

Commission he is represented by his wife, Mrs. Rosa Maria Cirrotta.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 4 May 1992 the Palermo Judge for Preliminary Investigations

issued a warrant of arrest against the applicant.

The latter was arrested on 6 May 1992 on suspicion inter alia of

belonging to a mafia-type organisation and remanded in custody; he was

taken to Palermo prison.

On 20 July 1992 the applicant was transferred to Pianosa island

prison as a consequence of a series of anti-mafia measures introduced

by the Italian Government during the summer of 1992. He was held in the

high security section of Pianosa prison under Article 41-bis of Law

no. 354 of 26 July 1975, as amended by Law Decree no. 306 of 8 June

1992, converted into Law no. 356 of 7 August 1992.

On the night of his arrival in Pianosa, the applicant was

allegedly tortured and ill-treated by the prison guards. Thereafter,

he was often woken up and forced to take cold showers during the night,

subjected to arbitrary beatings with sticks, to repeated squeezing of

his testicles and to repeated threats and insults by the guards. He

submits that he now suffers from a serious medical condition as a

result of the beatings and of undernourishment; he also alleges that

he has lost four teeth.

He was not allowed any visits from his family for a month. His

wife was eventually permitted to visit him on 20 August 1992.

On 10 September 1992, the applicant's wife filed a criminal

complaint against the Pianosa Prison governor and guards before the

Livorno Public Prosecutor's Office on account of the ill-treatment

suffered by the applicant.

On the same day, the applicant filed with Palermo Public

Prosecutor's Office a request to be transferred from Pianosa to another

prison closer to Palermo as well as a request that a medical doctor

appointed by him be allowed to examine him in prison. These requests

were rejected at a date which has not been specified.

On 1 March 1993 the Marsala Judge for Preliminary Investigations

ordered that the applicant be remanded in custody.

The Judge for Preliminary Investigations was allegedly murdered

by "mafiosi" at a date which has not been specified.

At an unspecified date, the applicant was committed for trial

before the Marsala Court together with thirty co-accused.

On 23 September 1993, the applicant was transferred to Termini

Imerese prison (Palermo).

On 11 June 1994 the applicant applied to the Marsala Court

seeking an order for his release on the ground that the time-limit for

detention on remand had expired. This request was refused by decision

of 15 June 1994.

On 7 February 1995 the applicant renewed his application for

release to the Marsala Court, which rejected the request by a decision

of 11 February 1995, holding it to be essentially identical with the

earlier request which it had dismissed on 15 June 1994.

Following an appeal lodged by the applicant against the renewal

of the application of Rule 41-bis in his case, the Florence Execution

Court ("Tribunale di sorveglianza") by a decision of 7 February 1995

reduced the scope of application of Article 41-bis in the applicant's

case.

By a judgment of 26 May 1995, filed with the Registry on

24 October 1995, the Marsala Court convicted the applicant of belonging

to a criminal organisation and sentenced him to 12 years imprisonment.

The applicant appealed to the Palermo Court of Appeal.

The applicant was transferred back to Pianosa island prison.

Since September 1995, he has been held in solitary confinement.

On 7 June 1996, the applicant's wife requested to be informed

pursuant to Article 408 of the Code of Criminal Procedure of the

possible decision to dismiss her criminal complaint of 10 September

1992. By judgment of 16 April 1997, the Palermo Court of Appeal

acquitted the applicant.

COMPLAINTS

1. The applicant complains in the first place about the ill-

treatment to which he was allegedly subjected while he was held in the

high security section of Pianosa island prison. In particular, he

submits that he was undernourished and subjected to arbitrary beatings

with sticks, repeated threats and insults by the guards.

He further complains that he has since September 1995 been held

in solitary confinement without any legal basis therefor.

He alleges a violation of Article 3 of the Convention in these

respects.

2. The applicant further complains under Articles 5 para. 3 and 6

para. 1 of the Convention about the length of his detention on remand.

He also submits that his subjection to a high security regime

under Article 41-bis of Law no. 354 of 26 July 1975, as amended by Law

Decree no. 306 of 8 June 1992, converted into Law no. 356 of 7 August

1992, notwithstanding his clean record, violated the principle of

presumption of innocence provided for by Article 6 para. 2 of the

Convention.

3. The applicant alleges that his case has not been dealt with by

an impartial tribunal, in breach of Article 6 para. 1 of the

Convention, because of the tense political climate of that time and

particularly because of the murder by the mafia of the Marsala Judge

for Preliminary Investigations by the mafia.

He also alleges a violation of Article 6 para. 3 (b) of the

Convention in that his detention in Pianosa during the preliminary

investigations, while the trial took place in Sicily, prevented him

from meeting his lawyer as often as it would have been necessary for

the purposes of an adequate defence.

4. The applicant also complains that under Article 41-bis of Law

no. 354/1975 he is allowed to meet his relatives only once a month for

a period of an hour, and that he is always separated from them by a

glass and can only communicate through an interphone. He alleges a

violation of Article 8 of the Convention in this respect.

5. The applicant finally complains that he is prevented from

attending Mass on Sundays. He alleges a violation of Article 9 of the

Convention.

THE LAW

1. The applicant complains in the first place that he was ill-

treated by the prison guards while held in Pianosa prison. Furthermore,

he complains that he has since September 1995 been held in solitary

confinement without any legal basis therefor. He alleges a violation

of Article 3 (Art. 3) of the Convention.

The applicant further alleges a violation of Article 8 (Art. 8)

of the Convention on account of the circumstances of his meetings with

his family.

The applicant also complains that during his detention on remand

on Pianosa island he has been prevented from attending Mass on Sundays.

He alleges a violation of Article 9 (Art. 9) of the Convention.

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 b) of the Rules

of Procedure, to give notice of this part of the application to the

respondent Government.

2. The applicant further complains that he was detained on remand

for three years, between his arrest on 6 May 1992 and his conviction

and sentence by the Marsala Court on 26 May 1995. He alleges a

violation of Article 5 para. 3 (Art. 5-3) of the Convention which

provides that "everyone arrested or detained on remand (...) shall be

entitled to trial within a reasonable time or to release pending trial

(...)."

However, the Commission is not required to decide whether or not

this complaint discloses any appearance of a violation of the

Convention, as, pursuant to Article 26 (Art. 26) of the Convention, it

can only deal with a matter after all domestic remedies have been

exhausted.

The Commission observes that in the present case the applicant

applied twice, on 11 June 1994 and 7 February 1995, to the Marsala

Court seeking an order for his release on grounds that the time-limits

for detention on remand had expired. However, the Commission notes that

the applicant has failed to appeal on points of law against the

decisions of 15 June 1994 and 11 February 1995, rejecting his requests.

It follows that the applicant has failed to avail himself of the

remedy which was at his disposal under domestic law. The Commission

furthermore considers that there are no special circumstances in the

present case that could absolve the applicant from exhausting this

remedy.

It follows that this complaint must be rejected under Article 27

para. 3 (Art. 27-3) of the Convention.

3. The applicant also alleges that his detention on remand subject

to a high security regime notwithstanding his clean record was in

breach of Article 6 para. 2 (Art. 6-2) of the Convention, according to

which "everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law".

The Commission observes that the principle of presumption of

innocence cannot be understood as forbidding detention pending trial,

which is permitted under Article 5 paras. 1 (c) and 3

(Art. 5-1-c, 5-3) of the Convention, or restrictions during such

detention.

On the other hand, the Commission recalls that, until conviction,

the accused must be presumed innocent, and the purpose of Article 5

para. 3 (Art. 5-3) of the Convention is essentially to require his

provisional release once his continuing detention ceases to be

reasonable (cf. Eur Court HR, Neumeister v. Austria judgment of 27 June

1969, series A no. 8, p. 37, para. 4).

In the light of its above conclusion in respect of the

applicant's complaint under Article 5 para. 3 (Art. 5-3) of the

Convention, the Commission considers that no separate issue arises

under Article 6 para. 2 (Art. 6-2) of the Convention in the present

case.

4. The applicant further submits that his case has not been dealt

with by an impartial tribunal because of the tense political climate

of that time and particularly because of the murder by the mafia of the

Marsala Judge for Preliminary Investigations.

He also submits that, given that the island of Pianosa has very

poor connections with the mainland, particularly in case of bad

weather, and is in any event very far from Sicily where the trial took

place, he could not meet his defence lawyer as often as necessary

during the preliminary investigations.

He alleges a breach of Article 6 paras. 1 and 3 (b)

(Art. 6-1, 6-3-b) of the Convention in this respect.

The Commission observes however that in the present case the

applicant was acquitted by the Palermo Court of Appeal on 16 April 1997

and that the relevant proceedings appear to be still pending.

The Commission considers therefore that the applicant cannot

claim to be a victim within the meaning of Article 25 (Art. 25) of the

Convention at this stage of the proceedings. This part of the

application is therefore manifestly ill-founded and must be rejected

under Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECIDES TO ADJOURN the examination of the applicant's

complaints concerning the alleged ill-treatment, the

conditions of detention, the circumstances of his meetings

with his family and the impossibility of attending Mass;

DECLARES INADMISSIBLE the remainder of the application.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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INDELICATO v. ITALY

INDELICATO v. ITALY

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