Communicated on 8 February 2021 Published on 1 March 2021

FIRST SECTION

Application no. 12592/20 Monica Ilaria CAMPEGGI against Italy lodged on 27 February 2020

SUBJECT MATTER OF THE CASE

The application concerns the applicant ’ s arrest and police custody performed in the framework of an identity check. After having criticised an on-going police operation, a police officer ordered the applicant to identify herself in order for him to file a request of prosecution against her for the offence of insulting an officer ( oltraggio a pubblico ufficiale ). Since the applicant did not provide identity papers, she was taken to the police station pursuant to Article 349 of the Code of Criminal Procedure (CCP) to verify her identity, including through photographing and fingerprinting, even though she had already stated her personal identification details and Italian law lays down no general duty to carry and/or provide identity papers. The applicant was held in custody for over six hours, five of which after an identification record was filled out, and about two and a half of which after photos and fingerprints were collected. The prosecutor has never been informed of her arrest, despite a legal duty to do so immediately.

After a few months of the filing of the request of prosecution against the applicant, competent judicial authorities dismissed the proceedings for the offence of insulting an officer, finding that the objective element of the offence had not been made out.

In parallel, proceedings for abuse of power were instituted against the police officers who had arrested the applicant. The Milan Tribunal convicted one officer, finding that: ( i ) the arrest had not been justified and had had a punitive purpose, given that there had not been sufficient grounds to believe that the applicant had stated false personal details and that no adequate reasons had been provided for the arrest; and (ii) the officer had violated his duty to immediately inform the prosecutor of the arrest. The Milan Court of Appeal, overturning the first-instance judgment, acquitted the officer, finding that: ( i ) the officer had been acting in accordance with his duties, considering that he followed the established practice that when suspects do not provide identity papers, they have to be taken to the police station for identity verification; and (ii) the officer ’ s omission to inform the prosecutor of the arrest, if at variance with the established practice, might have been due to an oversight, not to deliberate conduct. The Court of Cassation rejected the applicant ’ s remedy on points of law, concurring with the Court of Appeal ’ s conclusion. The Court of Cassation validated the Court of Appeal ’ s findings that: ( i ) the sufficient grounds to believe that the applicant had stated false personal details resided “in the applicant ’ s conduct”; and (ii) the officer ’ s omission to inform the prosecutor did not univocally establish his intent to cause prejudice to the applicant.

QUESTIONS TO THE PARTIES

1. Has the applicant complied with the six-month time-limit laid down in Article 35 § 1 of the Convention, considering the applicant ’ s lawyer ’ s repeated requests to the Registry of the Court of Cassation to obtain information about the date at which the decision was finalised?

2. Was the applicant deprived of h er liberty in breach of Article 5 § 1 of the Convention?

2. ( a) Did the applicant ’ s detention conform to the substantive and procedural rules of national law ( Creangă v. Romania [GC], no. 29226/03, §§ 84, 101, 23 February 2012)? In particular, considering that, in cases in which Article 5 § 1 of the Convention is at stake the Court must exercise a certain power to review whether national law has been observed ( Creangă v. Romania [GC], no. 29226/03, § 101, 23 February 2012), did the detention last for a period no longer than strictly required to perform the identity check (Article 349 § 4 CCP)? Did authorities follow the procedure prescribed by Article 349 § 5 CCP, notably by immediately informing the prosecutor of the applicant ’ s arrest and detention (see Voskuil v. the Netherlands , no. 64752/01, § 83, 22 November 2007)?

2. (b) Was the applicant ’ s detention authorised under sub-paragraph (b) of Article 5 § 1 of the Convention ( Vasileva v. Denmark , no. 52792/99, §§ 36-43, 25 September 2003; S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, §§ 80-82, 22 October 2018)?

2. (c ) Was the applicant ’ s detention arbitrary ( S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 76, 22 October 2018)? In particular, was the restriction necessary or justified, that is, based on relevant and sufficient reasons and proportionate to the pursuit of the aims or grounds for which it is authorised ( Merabishvili v. Georgia [GC], no. 72508/13, § 302, 28 November 2017; James, Wells and Lee v. the United Kingdom , nos. 25119/09 and 2 others, §§ 193, 195, 18 September 2012)?

2. (d) The Government are invited to provide a detailed hour-by-hour report on what happened in the police station in question and to account for the time spent there by the applicant (see Creangă v. Romania [GC], no. 29226/03, § 90, 23 February 2012).

3. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her detention before a “court” ( Ali Osman Özmen v. Turkey , no. 42969/04, § 87, 5 July 2016 ), as required by Article 5 § 4 of the Convention?

4. Did the applicant have an effective and enforceable right to compensation for her detention in alleged contravention of Article 5 §§ 1 and 4, as required by Article 5 § 5 of the Convention?