CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      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