SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 40719/98

by Antonio DI SOMMA [Note1]

against Italy [Note2]

The European Court of Human Rights ( Second Section) sitting on 26 January 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, S ection 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 10 December 1997 by Antonio DI SOMMA [Note3] against Italy and registered on 8 April 1998 under file No. 40719/98;

Having regard to the report 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 1967 and currently residing in Naples. He is represented before the Court by Mr Vittorio Trupiano , a lawyer practising in Naples.

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

A. The particular circumstances of the case

On 10 November 1997 the police arrested red-handed two persons who were carrying out a robbery at a bank in Terni . A third accomplice had escaped.

On 28 November 1997 the Public Prosecutor attached to the Terni District Court requested that the applicant be remanded in custody on grounds that there was a serious indication of his guilt, the applicant having been identified on the basis of a video filmed during the robbery and recognised by two police officers and by some others witnesses. Moreover, there was a significant risk that he would commit other similar offences, tamper with evidence, interfere with witnesses or abscond.

On 29 November 1997 the Judge for Preliminary Investigations of Terni issued a warrant of arrest against the applicant.

The applicant was arrested and remanded in custody on 29 November 1997.

On 10 December 1997 the applicant requested the Judge for Preliminary Investigations to revoke the decision to detain him on remand , arguing that there was no serious indication of guilt. The evidence submitted by the applicant included declarations from three of his colleagues stating that on the day of the robbery he was at work, transporting goods on behalf of his employer, together with invoices and tacograph print-outs.

On 13 December 1997 the Judge for Preliminary Investigations rejected the application. Having found out that the tacograph of the truck was not functioning properly and the invoices had not been signed by the applicant, the Judge considered that the evidence submitted by the latter was not sufficient to eliminate the serious suspicion against him. Moreover, custody was the only way of preventing the risk of tampering with evidence or absconding.

On 17 December 1997 the applicant lodged an appeal with the Perugia District Court against the decision of the Judge for Preliminary Investigations. The outcome of these proceedings is not known.

On 23 December 1997, the two persons charged together with the applicant made a statement to the effect that the applicant was innocent and implicated another person.

On 24 December 1997 the Judge of Preliminary Investigation revoked the remand in custody and the applicant was accordingly released, since further investigations had led to the implication of another suspect.

On 12 January 1998, following the guilty plea of the latter, the Judge of Preliminary Investigations dismissed the charge against the applicant.

On 6 February 1998 the applicant filed a criminal complaint against the police officers who had recognised him “beyond any doubt” as the third person participating in the robbery and against the Public Prosecutor and the Judge of Preliminary Investigations who had remanded him in custody.

B. Relevant domestic law and practice

Articles 273 and 280 of the Code of  Criminal Procedure set out the conditions of applicability of preventive measures, namely the existence of serious indications of guilt (“ gravi indizi di colpevolezza ”) in respect of a crime punishable with life imprisonment or detention for more than three years.

Article 274 of the Code of Criminal Procedure sets out the grounds for preventive measures namely : prevention of interference with the course of justice (Article 274.a), danger of flight (274.b) and prevention of crime (274.c)

Under Article 314 § 1 and § 3 of the Code of Criminal Procedure, a person who has been detained in remand during a criminal prosecution is entitled to compensation if prosecution is discontinued or the accused is acquitted.

Under Article 314 § 2 of the Code of Criminal Procedure, a person whose detention on remand has been found, in a final decision, to have been ordered or maintained in breach of Articles 273 or 280 of the Code of Criminal Procedure is entitled to compensation. In a judgement of 20 December 1993, no. 21, the Court of Cassation sitting in Plenary held that, when an applicant is released while his appeal against the decision to put him in detention on remand is still pending, he still has an interest to pursue the appeal in order to obtain a final determination that his detention on remand was unlawful, and this for the purpose of obtaining compensation in pursuance of Article 314 § 2 of the Code of Criminal Procedure.

COMPLAINT

The applicant complains that he was detained on remand without there being any reasonable grounds on which to suspect him of having committed an offence. He alleges that unlawfulness of his detention on remand is confirmed by  the dismissal of the charge against him.

The applicant does not invoke any specific provision of the Convention.

THE LAW

The Court recalls that it falls first to the national authorities to the national authorities to redress any alleged violation of the Convention. In many cases the violation itself can not be wiped out with retroactive effect ; only reparation is possible. Such a reparation may then constitute a means whereby a State can redress the alleged violation of the Convention (Eur. Comm. HR, No 10668/83, dec. 13.5.87, D.R. 52, p. 177 ).

In the present case, the Judge of Preliminary Investigation revoked his decision to detain the applicant on remand, the applicant was released and the charge against him was dismissed. Italian law appears to allow for compensation after final acquittal or in case the prosecution decides to discontinue prosecution. Furthermore, the outcome of the appeal lodged with the Perugia District Court is not known.

The Court need not examine whether all domestic remedies have been exhausted, pursuant to Article 35 § 1 of the Convention, by the applicant as his application is, in any event, inadmissible for the following reasons.

The Court recalls that Article 5 § 1 (c) authorises arrest or detention for the purpose of bringing “before the competent legal authority” on the mere grounds of the existence of “reasonable suspicion” that the person arrested “has committed an offence” and it is clear that the persistence of such suspicion is a condition for the validity of the continued detention of the person concerned (see Eur. Court HR, Stögmuller v. Austria judgment of 10 November 1969, Series A no.9, p. 40, § 4 ; Brogan and others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 29, § 51-53).

The Court recalls that having a “reasonable suspicion” presupposes the existence of facts which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will depend upon all the circumstances (Eur. Court HR, Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32) .

In the present case, the Court notes that the applicant was arrested and remanded in custody having been identified through a number of converging evidence as one of the three participants to the robbery and in conformity with the relevant provisions of the Code of Criminal Procedure. Furthermore, it appears that the Judge for Preliminary Investigations based his decision to maintain the applicant in detention on remand on the consistent finding that there were serious indication of the applicant’s guilt and that the discharging evidence submitted by the applicant were not sufficient to eliminate the serious suspicion againts him.

The Court considers that these facts suffice to satisfy the requirement of a “reasonable suspicion” in the sense of Article 5 § 1 (c) of the Convention. In this respect, the Court stresses that there can be no question of regarding arrest or detention on remand as being justified only when the reality and the nature of the offences charged have been proved, this being the purpose of the preliminary investigations and the trial which detention intends to facilitate (see Eur. Court HR, Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, § 55). Consequently, the facts as submitted do not disclose any appearance of a violation of the Convention.

It follows that the application is manifestly ill-founded and must be rejected under Article 35 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Erik Fribergh Christos Rozakis Registrar President

[Note1] Please check if public or not. If not, put initials only. Name and, in capital letters, surname ; corporative name in capital letters ; no translation of collective names.

[Note2] First letter in capital letters plus the article according to normal speech.

[Note3] In small letters.