Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27220/95

by Gregorio CACCIOLA

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 10 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 16 November 1994

by Gregorio CACCIOLA against Italy and registered on 3 May 1995 under

file No. 27220/95;

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 1958 in Rosarno

(Reggio Calabria). He is currently detained in Palmi (Reggio Calabria).

Before the Commission, he is represented by Mr. Ettore Palmieri, a

lawyer practising in Rome.

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

summarised as follows.

The applicant was arrested and placed in detention on remand in

Palmi pursuant to a warrant of arrest issued on 12 January 1994 by the

Milan investigating judge. The applicant was charged with being a

member of the Mafia, murder and unlawful possession of weapons.

The applicant lodged an appeal ("richiesta di riesame") before

the Milan Court against the warrant of arrest ; in a decision of

11 February 1994, filed with the registry on 14 February 1994, the

Court quashed the impugned measure and ordered the release of the

applicant.

On 14 February 1994 the Milan Public Prosecutor issued against

the applicant an order of provisional arrest ("fermo") under

Article 384 of the Code of Criminal Procedure. The Prosecutor

considered that it was reasonable to assume that the applicant, if

released, might abscond. He had regard in particular to the contacts

which the applicant allegedly still had with powerful criminal

organisations and to the serious nature of the charges pending against

him, to a large extent confirmed by the statements made by a former

member of the Mafia currently co-operating with the judicial

authorities ("pentito"). The order was served on the applicant in

prison immediately after service of the decision of 11 February 1994

ordering his release. Thus, the applicant did not leave the prison.

On 17 February 1994, the applicant appeared before the Reggio

Calabria investigating judge for the confirmation of the order of

provisional arrest ("convalida del fermo"). He was questioned in

accordance with the procedure provided for in Articles 64 and 65 of the

Criminal Procedure Code, but declared he intended to avail himself of

the right to remain silent. The applicant's lawyer pleaded for his

client's immediate release, arguing that, according to Article 302 of

the Code of Criminal Procedure, after the decision of 11 February 1994

quashing the previous warrant of arrest, the adoption of a new

restrictive measure was not possible until the prisoner had been

effectively released and questioned once released. The applicant's

lawyer referred on this point to established case-law of the Court of

Cassation.

In an order of 17 February 1994, the Reggio Calabria

investigating judge confirmed the order of provisional arrest, placed

the applicant in detention on remand (Articles 272, 273 and 274 of the

Code of Criminal Procedure) and decided that the case should be sent

to the Milan Public Prosecutor for reasons of territorial competence.

As to the objections raised by the applicant's lawyer, the

investigating judge observed that the case-law of the Court of

Cassation was not well-established on the subject. In fact, several

judgments had held that the adoption of a new restrictive measure was

subject only to the condition that the accused be questioned,

irrespective of whether he had or had not been effectively released.

The judge noted that, before being placed on detention on remand for

the second time, the applicant had been lawfully questioned by him in

accordance with the relevant provisions of the Code of Criminal

Procedure.

Pursuant to the Milan Public Prosecutor's request, on 4 March

1994 the Milan investigating judge issued a new order of detention on

remand against the applicant. Raising objections similar to those

raised on 17 February 1994, the applicant lodged an appeal ("richiesta

di riesame") before the Milan Court.

This appeal was rejected in a decision of 5 April 1994. The Milan

Court observed in particular that the ratio legis of Article 302 was

to avoid a new restrictive measure being issued without a re-

examination of the evidence in the presence of the accused. The court

further noted that the applicant had, at the hearing of 17 February

1994, been given an opportunity to comment on the merits of the charges

pending against him, the fact that he was still detained when

questioned being of little consequence. As to the merits of the

impugned measure, the court recalled the reliability and seriousness

of the statements made against the applicant and, having regard to his

personality, to his criminal record and to the contacts related to his

criminal background, considered that the deprivation of liberty was

necessary to prevent the applicant from committing other offenses and

from absconding.

The applicant lodged an appeal on points of law against this

decision. In a judgment of 6 July 1994, filed with the registry on

12 September 1994, the Court of Cassation dismissed the applicant's

appeal. The Court first noted that Article 302 of the Code of Criminal

Procedure does not require the accused is be questioned while at

liberty, but prohibits questioning the accused only during the de facto

unlawful extension of a warrant of arrest previously quashed, and that

in the present case, on 14 February 1994, a new order of provisional

arrest had been issued against the applicant. The Court added that,

even assuming that the said new order was unlawful, this irregularity

would not have affected the lawfulness of the applicant's examination

on 17 February 1994, which had been validly performed, giving the

applicant the possibility to defend himself before the pronouncement

of the investigating judge's decision.

Relevant domestic law

Article 302 of the Italian Code of Criminal Procedure provides

as follows :

(Original)

"La custodia cautelare disposta nel corso delle indagini

preliminari perde immediatamente efficacia se il giudice non procede

all'interrogatorio (...). Dopo la liberazione, la misura può essere

nuovamente disposta dal giudice (...), previo interrogatorio, allorchè,

valutati i risultati di questo, sussistono le condizioni indicate negli

articoli 273, 274 e 275."

(Translation)

"The detention on remand imposed during the investigation stage

becomes immediately null and void if the judge does not question the

accused [person] ... After release, the restrictive measure can be

ordered again by the judge ..., after having questioned the accused,

if, in view of the results thereof, the conditions laid down in

Articles 273, 274 and 275 are fulfilled."

COMPLAINTS

1. Invoking Article 5 para. 1 of the Convention, the applicant

complains in the first place about the decisions occasioning the

deprivation of his liberty. He alleges that the orders of 17 February

and 4 March 1994 were not issued "in accordance with a procedure

prescribed by law", particularly by Article 302 of the Italian Code of

Criminal Procedure. He further argues that there was no serious reason

to presume that, if released, he could have fled in order to avoid

trial.

2. The applicant also complains under Article 5 para. 5 of the

Convention that he did not receive compensation for his unlawful

detention.

THE LAW

1. Invoking Article 5 para. 1 (Art. 5-1) of the Convention, the

applicant complains about the decisions occasioning the deprivation of

his liberty.

In so far as relevant, Article 5 para. 1 (Art. 5-1) reads as

follows:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in

the following cases and in accordance with a procedure

prescribed by law:

...

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so; ..."

The applicant alleges that the orders of 17 February and 4 March

1994 were not issued "in accordance with a procedure prescribed by

law", particularly by Article 302 of the Italian Code of Criminal

Procedure. He notes further that his custody cannot be regarded as

"lawful", in so far as the national authorities did not have any

serious ground to presume that, if released, he could have tried to

flee in order to avoid trial.

The Commission recalls that when requiring that a detention be

"lawful" and in compliance with a "procedure prescribed by law" the

Convention essentially refers back to national law and states the

obligation to conform to the substantive and procedural rules thereof.

It further requires that any deprivation of liberty should be

consistent with the overall purpose of Article 5 (Art. 5), namely to

protect individuals from arbitrariness (see, e.g., Eur. Court HR, Van

der Leer v. the Netherlands judgment of 21 February 1990, Series A no.

170-A, p. 12, para. 22). If detention is to be "lawful", including the

observance of a procedure prescribed by law, it must essentially comply

with national law and the substantive and procedural rules thereof

(see, e.g. Eur. Court HR, Herczegfalvy v. Austria judgment

of 24 september 1992, Series A no. 244, p. 21, para. 63). It is in the

first place for the national authorities, in particular the courts, to

interpret and apply domestic law (see N° 28574/95, Dec. 25.11.96,

D.R. 87-A, pp. 118, 122). However, since under Article 5 para. 1

(Art. 5-1) failure to comply with domestic law entails a breach of the

Convention, the Convention organs can and should exercise a certain

power to review whether this law has been complied with.

As regards the present case, in so far as the applicant complains

that the national authorities did not respect the procedure "prescribed

by law", and particularly by Article 302 of the Code of Criminal

Procedure, the Commission points out that the applicant's detention on

remand was ordered by the competent judge after a hearing in the course

of which the accused was questioned in respect of all the guarantees

set forth in Italian law. As to the fact that the applicant was not

formally released before the adoption of the new restrictive measure,

the Commission observes that this condition is not expressly required

on pain of nullity by the above-mentioned Article 302 and considers

that in interpreting this provision of the Code of Criminal Procedure,

the Italian judicial authorities did not exceed their margin of

appreciation. Moreover, the decisions contested by the applicant are

fully reasoned on this point and permit the risk of arbitrariness to

be excluded.

The Commission consequently considers that the applicant's

deprivation of liberty was ordered "in accordance with a procedure

prescribed by law".

The Commission will now turn to the question whether the measures

at issue were "lawful" within the meaning of Article 5 para. 1 (c)

(Art. 5-1-c) of the Convention. It first notes that under Articles 384

and 274 para. 1 (b) of the Code of Criminal Procedure, provisional

arrest and detention on remand can be imposed if specific elements

disclose a concrete risk of the accused fleeing after having committed

an offence. The Commission further observes that in evaluating the

existence of such a risk, the national authorities correctly took into

consideration all relevant elements at their disposal, such as the

reliability and seriousness of statements made against the applicant,

the personality of the accused, his continuing contacts with criminal

organisations and his criminal record.

In these circumstances, it does not appear that the applicant's

detention was ordered arbitrarily or that the approach adopted by the

Italian authorities was in any way inconsistent with the Convention.

The Commission does not consider therefore that the applicant's

detention was unlawful under domestic law and thus contrary to

Article 5 para. 1 (Art. 5-1) of the Convention.

It follows that this part of the application is manifestly ill-

founded and must be rejected under Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant complains under Article 5 para. 5 (Art. 5-5) of the

Convention that he did not receive compensation for his unlawful

detention.

However, the Commission has just found that the applicant's

complaint under Article 5 para. 1 (Art. 5-1) of the Convention of the

alleged unlawfulness of his detention is manifestly ill-founded.

Accordingly, Article 5 para. 5 (Art. 5-5) of the Convention does not

require that the applicant receive compensation for his detention (Eur.

Court HR, Benham v. the United Kingdom judgment of 10 June 1996, to be

published in Reports of Judgments and Decisions 1996-III, No. 10,

p. 755, para. 50).

It follows that this complaint is also manifestly ill-founded and

must be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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CACCIOLA v. ITALY

CACCIOLA v. ITALY

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