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
Full & Egal Universal Law Academy