AS TO THE ADMISSIBILITY OF
The European Court of Human Rights (Second Section) sitting on 15 December 1998 as a Chamber composed of
Mr M. Fischbach, President,
Mr B. Conforti,
Mr G. Bonello,
Mrs V. Stráznická,
Mr P. Lorenzen
Mrs M. Tsatsa-Nikolovska,
Mr A.B. Baka, Judges,
and 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 28 April 1994 by N.C. against Italy and registered on 18 July 1994 under file no. 24952/94;
Having regard to the reports provided for in Rule 49 of the Rules of Court;
Having regard to the observations submitted by the respondent Government on 18 July 1997 and the observations in reply submitted by the applicant on 17 October 1997;
Decides as follows:
On an unspecified date, preliminary investigations were opened against the applicant on suspicion of abuse of power and corruption committed concurrently in the course of his functions in 1991. The applicant was suspected in particular of having commissioned Y, the head of urban planning of the Brindisi local authority, as chief engineer for the building of a road (“Strada dei Pittachi") and as co-director of works for the construction of the new district detention centre at Lecce. These appointments were alleged to be a “payment” from company X to Y for delivering false declarations in the approval procedure relating to the projects which company X had submitted for the road-works.
On 16 October 1993 the Public Prosecutor attached to the Brindisi District Court requested that the applicant be remanded in custody, on grounds that there was a serious indication of his guilt and that, given that he maintained his functions in company X, there was a risk that he would commit similar offences.
On 2 November 1993 the Judge for Preliminary Investigations of Brindisi issued a warrant of arrest against the applicant on the ground that, as indicated by the Public Prosecutor in his above request, the applicant had maintained his position as Technical Director of company X. In the order it was stated inter alia as follows: "The chaotic and unlivable character of Southern Italian cities is not caused solely by the pervasiveness of common crime but primarily stems from the urban growth pattern (general lack of any effective regulation and resultant lack of adequate public areas for parking, gardens and relief roads; this unease is tangibly felt in all parts of Brindisi). Abuses relating to management and spending of public funds like those committed in the Strada dei Pittachi project must be considered just as serious as possession of a firearm with its serial number removed or the conduct of a drug addict who robs a tobacconist of a few hundred thousand lire at gunpoint or with the help of accomplices, as often happens in Brindisi. Given the legislator's intention to counter the risk to society in such cases by the most stringent preventive measure, i.e. detention in prison, this is even more justifiable in the far more serious case under investigation and is to be considered appropriate and necessary albeit not peremptorily stipulated by Article 275, third paragraph of the Code of Criminal Procedure among the circumstances where detention is mandatory. Otherwise the difference in treatment would be unjustifiable, and therefore unjust”. The judge concluded that he thus was firmly convinced that in cases like the one under consideration, “where each act (a) is aimed at the pursuit of reprehensible private interests and (b) is committed by persons who do or should bear a high reputation because of the powers and/or responsibilities which they exercise, the measure of prison detention must be applied (not the measure of house arrest which is very convenient - especially for someone like the accused who is used to living indoors - but not sufficiently deterrent)."
The applicant was arrested on 3 November 1993.
On the same day the applicant filed with the Brindisi District Court an application for his release from detention or, failing that, house arrest, arguing that there was no "serious indication of guilt" within the meaning of Article 273 of the Code of Criminal Procedure, and that there were no grounds whatsoever for preventive measures.
On 9 November 1993, the applicant filed with the Brindisi District Court's Registry further grounds for his application; he reiterated that there was no evidence against him, and that there were no grounds for preventive measures: no need to prevent interferences with the course of justice, as the investigations had already been almost completed; no danger of flight, as the applicant had never showed any intention to abscond, and had on the contrary been very co-operative upon his arrest; and in particular no need for prevention of crime. In this respect, the applicant stressed that Article 274 (c) of the Code of Criminal Procedure requires that - by reasons of the particular circumstances of the case and of the personality of the accused - there be a concrete danger that the latter would commit further offences, whereas the grounds indicated by the judge for preliminary investigations were extremely vague and hypothetical. Furthermore, the applicant had a clean record.
Finally, the applicant inter alia drew the court's attention to the established case-law to the effect that, when a preventive measure is considered a significant period of time after the committal of the offence, account must be taken of the accused's conduct after the committal of the offence; insofar as he was concerned, in the two years that had elapsed after the offence of which he was accused, he had not been accused or charged with any similar or different offence.
Following a hearing on 11 November 1993, the court in a decision of 13 November 1993 held that there undoubtedly existed a "serious indication of guilt" against the applicant. It further held that “there undoubtedly was a danger of his committing further crimes within the meaning of Article 274 (c) of the Code of Criminal Procedure considering how the accused succeeded in unlawfully attaining the economic ends identified”; it thus rejected his application for release. However, given that the applicant had a clean record, the court upheld his subsidiary request and placed him under house arrest.
On 23 November 1993 the applicant appealed on points of law against the refusal to release him, on grounds that his detention on remand was in breach of Articles 273 and 274 (c) of the Code of Criminal Procedure. He stressed in particular that the Brindisi District Court had not given any reasons for the application of preventive measures within the meaning of Article 274 (c) of the Code of Criminal Procedure.
On 30 November 1993 the applicant filed a request with the Brindisi Judge for the Preliminary Hearing to revoke the order for his being kept under house arrest, as he had resigned from his office of technical director of company X.
This application was rejected by the Judge for Preliminary Investigations on 3 December 1993 on the grounds of the short period of time elapsed since the application of the measure, which moreover had been changed into a more lenient one, and of the seriousness of the accusation. The judge added that the applicant would have the possibility of benefiting from his professional skills either on behalf of another company or on his own.
On 6 December 1993, the applicant appealed to the Brindisi District Court against this decision. He underlined that the previous decisions had been based on the need for prevention of crime, and in particular on the circumstance that the applicant had maintained his position in company X; accordingly, now that he had resigned, such need did not exist any more.
In a decision of 20 December 1993 the court pointed out that all previous decisions of the applicant's remand detention were based on Article 274 (c). It held that, given that the applicant had resigned and in the light of the time already elapsed since the application of the measure and of the personality of the accused, there were no longer any grounds for his detention on remand and accordingly it ordered his immediate release.
On 28 February 1994 the applicant withdrew his appeal on points of law of 23 November 1993, which was acknowledged on 8 March 1994.
The proceedings are currently pending before the Brindisi District Court.
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.
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 and 280 of the Code of Criminal Procedure is entitled to compensation. The relevant request must be filed within eighteen months of the date when the decision has become final; the amount of compensation cannot exceed 100,000,000 Italian lire (Article 315 of the Code of Criminal Procedure).
In a judgment 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.
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). Article 274 (c) reads as follows : (preventive measures are ordered) “when, by reason of the particular modalities and circumstances of the case and of the personality of the suspect or accused, as gathered from his conduct or acts or record, there exists the real danger that he would commit (...) offences similar to that charged.” In the latter case, detention is only ordered if the offences are punishable with a maximum term of not less than four years.
Preventive detention ordered or maintained in breach of Article 274 does not give rise to a right to compensation under Articles 314 and 315 of the Code of Criminal Procedure.
In a judgment of 17 May 1993, no. 655, the Court of Cassation held that, when an applicant is released while his appeal against the decision to put him in detention on remand on grounds that his detention is in breach of Article 274 of the Code of Criminal Procedure is still pending, he does not have any interest in pursuing the appeal, given that he is not entitled to claim any compensation for a detention in breach of that provision.
The applicant claims that the detention on remand he suffered from 3 November to 20 December 1993 was in breach of Article 274 of the Code of Criminal Procedure, as there were no grounds for preventive measures, particularly danger of flight or prevention of crime. He complains that, although his detention was thus in breach of Articles 5 §§ 1 (c) and 3 of the Convention, he is not entitled to any compensation under Italian law within the meaning of § 5 of Article 5 of the Convention.
PROCEEDINGS BEFORE THE COURT
The application was introduced before the European Commission of Human Rights on 28 April 1994 and registered on 18 July 1994.
On 9 April 1997, the Commission decided to communicate the application to the respondent Government.
The Government's written observations were submitted on 18 July 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 15 October 1997.
On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.
The applicant complains that, although his detention on remand was unlawful within the meaning of § 1 of Article 5 of the Convention, he has no right to compensation therefor within the meaning of § 5 of the same Article.
Article 5 of the Convention, insofar as relevant, 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;
3. Everyone arrested or detained in accordance with the provisions of paragraph 1. c. of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
The Government - which concede that the applicant has exhausted all available domestic remedies - argue that the applicant's detention on remand was in accordance with Articles 272, 280, 285 and 274.c of the Code of Criminal Procedure as there existed reasonable and serious suspicion that the applicant was guilty and there existed a danger that the applicant would commit further crimes, as the applicant was still Technical Director of company x and the building works were still in progress. The remand order was only revoked after the applicant had resigned from his position as Technical Director, as the ground for the preventive measure then ceased to exist.
The Government consider that the applicant's detention was compatible with Article 5 § 1 (c) of the Convention. They submit that the application is manifestly ill-founded.
The applicant underlines that the only ground for keeping him in detention was the circumstance that he had maintained his functions, whereas no account was taken - contrary to the Italian legislation and case-law - of his clean record and of his conduct after he had allegedly committed the offence in question. Furthermore, the applicant maintains that the danger that he would commit further offences was merely hypothetical. He argues therefore that his detention was - during the whole period under consideration - in breach of Article 274 of the Code of Criminal Procedure and Article 5 §§ 1 (c) and 3. In particular, the applicant alleges that the content of the decision of 13 November 1993 by the District Court, shows how weak the grounds for keeping him in detention were and, furthermore, violated the principle of presumption of innocence provided for in Article 6 § 2 of the Convention. Given that there exists no possibility of claiming compensation for detention in breach of Article 274 under Italian law - which was not disputed by the Italian Government- the applicant alleges a breach of Article 5 § 5.
The Court considers that the application raises complex and serious issues which require determination on the merits. It follows that it cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the application inadmissible has been established.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.
Erik Fribergh Marc Fischbach
24952/94 - -
- - 24952/94