SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40457/98

by Francesco CUZZILLA

against Italy

The European Court of Human Rights ( Second Section) sitting on 2 February 1999 as a Chamber composed of

Mr C. Rozakis, President ,

Mr M. Fischbach,

Mr B. Conforti,

Mr G. Bonello,

Mrs V. Strážnická,

Mr P. Lorenzen,

Mrs M. Tsatsa-Nikolovska, Judges ,

with Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 December 1997 by Francesco CUZZILLA against Italy and registered on 26 March 1998 under file no. 40457/98;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1939 and currently residing in Rome.

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

Criminal proceedings brought against the applicant

On 12 December 1991 D.N.R. filed a criminal complaint against the applicant and S.C. for extortion.

On the same day S.C. was arrested in the process of committing the offence. Shortly after, the applicant’s house was searched by some police officers without a previous warrant issued by the judicial authorities. It results from the documents that the police officers were looking for two cheques. However, they did not find them in the applicant’s house.

On the same day, following the search, the applicant was taken to the police station, where he was kept for some hours. It results from the documents that during this period the police officers prepared the verbatim record of the house search according to which the latter had been carried out pursuant to Article 352 of the Criminal Procedure Code, that is while the applicant was in a situation of flagrante delicto . The applicant signed the verbatim record.

On 13 December 1991, the Public Prosecutor attached to the Rome District Court validated the search.

On 16 December 1991, the Public Prosecutor requested that the applicant be remanded in custody. On the same day the Judge for Preliminary Investigations issued a warrant of arrest.

The applicant was detained from 7 January 1992 to 31 March 1992.

On 31 March 1992 the applicant and his co-accused were committed for trial before the Rome District Court.

The first hearing was set for 11 May 1993.

The following hearing took place on 7 October 1993. The applicant’s lawyer requested a postponement of the proceedings, which was granted by the Court.

New hearings were set for 18, 19 and 23 October 1993.

On 18 June 1996, the Rome District Court replaced the original charge of extortion by one of fraud. Therefore, the Court ruled that the proceedings be discontinued, as the requisite formal criminal complaint ( querela ) had not been lodged by D.N.R..

On 18 October 1996 the judgement was filed with the Court’s registry.

On 23 December 1996 the applicant filed an appeal against the judgement.

On 24 March 1998 the Court of Appeal acquitted the applicant.

On 29 June 1998 the judgement became final.

Criminal proceedings instituted by the applicant

On 1 March 1995 the applicant filed a criminal complaint against the Public Prosecutor who had validated the house search, requested the remand in custody and committed him for trial, together with the police officers who had carried out the search and kept him at the police station for a few hours.

On 20 June 1997 the case was dismissed by the Judge of Preliminary Investigations.

It results in particular from this decision that the requirements for a conviction of trespass (violazione di domicilio, Article 614 of the criminal code) were not met, as the requisite intention to offend was missing and as the house owner’s lack of consent had not been expressed, the applicant having signed the verbatim record of the events. Moreover, the only remedy available under Italian law to challenge the lawfulness of a search - that is the compliance with the procedural formalities (Article 352 of the Code of criminal procedure) was an essentially procedural sanction consisting in the judge being prevented from using the evidence found during the search, and, possibly, disciplinary proceedings instituted against the police officers.

COMPLAINTS

1. The applicant complains about the length of the criminal proceedings brought against him. He invokes Article 6 of the Convention.

2. The applicant complains about the unlawfulness of the deprivation of his liberty on 12 December 1991. He invokes Article 5 of the Convention.

3. The applicant complains, under Article 8 of the Convention, about the unlawfulness of the house search carried out by the police officers on 12 December 1991, without a previous warrant issued by the Public Prosecutor and while he was not in a situation of “flagrante delicto”, the only situation which entitles police officers without warrant to carry out a search.

4. The applicant complains, under Article 6 of the Convention, about the lack of fairness of criminal proceedings instituted by him against third parties.

THE LAW

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

Article 6 § 1 of the Convention provides:

“ In the determination ... 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 ...”.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 b) of the Rules of Procedure, to give notice of it to the respondent Government.

2. The applicant complains, under Article 5, that he was unlawfully deprived of his liberty for a period of time after the home search on 12 December 1991.

Even assuming that the period of time spent by the applicant at the police station can be regarded as a deprivation of liberty within the meaning of Article 5, the Court finds it unnecessary to determine whether or not it was in accordance with Article 5 of the Convention.

According to Article 35 § 1 of the Convention, the Court “may only deal with the matter after all domestic remedies have been exhausted ... and within a period of six months from the date on which the final decision was taken”.

The Court considers that from the moment a detainee has been released Article 5 ceases to apply and accordingly the six-month’s period provided for in Article 35 § 1 of the Convention begins to run from that date (Eur. Comm. HR, No 9990/82, dec. 15.5.84, D.R. 39, pp. 119, 142)

The Court notes that the alleged deprivation of liberty took place on 12 December 1991. The applicant was released on the same day.

The Court considers then that the six months’ period begins to run on 12 December 1991, while the application was introduced on 4 December 1997, which is more than six months later.

It follows that this complaint must be rejected under Article 35 as being introduced out of time.

3. The applicant complains, under Article 8, about the lawfulness of the search carried out by the police officers in his home

Article 8 of the Convention provides as follows :

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authorities with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of rights and freedoms of others.”

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 b) of the Rules of Procedure, to give notice of it to the respondent Government.

4. The applicant complains about the lack of fairness of the criminal proceedings he instituted against third parties. He alleges a breach of Article 6 of the Convention.

The Court considers that the criminal proceedings instituted by the applicant do not concern “the determination of his civil rights and obligations or of any criminal charge against him”. Consequently, they do not fall within the scope of Article 6 (Eur. Comm.. HR, No. 20948/92, Dec. 22.5.95, D.R. 81, pp. 35, 41).

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention and must therefore be rejected under Article 35.

For these reasons, the Court

DECIDES TO ADJOURN the examination of the applicant’s complaints concerning the length of the criminal proceedings brought against him and the allegedly unlawful house search

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President