CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 janvier 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s6B505E72 { margin:0pt; padding-left:0pt } .sCAA154B1 { margin-left:33.01pt; padding-left:2.99pt; font-family:Arial } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sA68E35A7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt }     Communicated on 21 January 2016   FIRST SECTION Application no. 17710/15 Andrea CIOFFI against Italy lodged on 16 June 2015 STATEMENT OF FACTS 1.     The applicant, Mr Andrea Cioffi, is an Italian national who was born in 1972 and lives in Naples. He is represented before the Court by Mr   G.P.   Pezzuti, a lawyer practising in Naples. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant and as found by the domestic courts, may be summarised as follows. 1.     The events of 17 March 2001 3.     The Third Global Forum on Reinventing Government was held in Naples from 15   to   17 March 2001. 4.     As a reaction to the event, an “anti-globalisation” demonstration was planned to take place at the summit’s conclusion on 17 March 2001. This was a demonstration involving activists representing a broad coalition of environmentalist, anarchist and left wing protest groups, alongside representatives of the “No Global” movement, community centres, student collectives and pacifist groups. 5.     Security measures were put in place by the Italian authorities. The part of the city where the meeting was scheduled to take place (the city centre) was designated as a “red zone” and cordoned off. Law-enforcement officers from various branches of the police, including the State police, Carabinieri (national military police), Guardia di Finanza (revenue police) and Polizia Penitenziaria (prison police), were deployed to patrol and protect it. 6.     According to the information available to the authorities, the demonstrators were expected to assemble in Piazza Mancini, a square close to the train station, and they would then march along the city’s main streets and reconvene near the red zone. It was foreseen that the final event would be a gathering in front of it. 7.     At a certain point a group of hostile demonstrators attempted to knock down the cordon set up around the red zone. The law-enforcement officers charged against them in an attempt to prevent access to the protected area. Some members of the crowd reacted by throwing hard objects such as rocks, bolts and sticks at them. 8.     A large number of individuals were injured in the clashes, which led to a heavy flow of people to the emergency departments of different city hospitals. At approximately 12 noon ambulances started travelling back and forth from the demonstration to the different hospitals. Some injured people who did not manage to board the ambulances walked to the hospitals, while others were taken by local people who had not participated in the demonstrations (see first-instance judgment, page 4). 9.     At 12.30   p.m. the law-enforcement officers started the process of identifying the individuals in the emergency departments, including both the injured and those who were with them. Following the identification, all police patrols and officers in the hospitals received orders via radio instructing them to transfer the people being treated in the hospital emergency departments to the Virgilio Raniero police station. 10.     The deputy chief of police ( vice questore ) was entrusted with coordinating the police’s activities at the police station. He deployed thirteen officers to its entrance in order to guard the building, which was considered a “sensitive” location. He also designated the station’s break room as the place where the individuals taken into custody would be held. He delegated authority over the detainees to two senior officers, C.S. and F.C. 11.     Between 12.30 and 5.30   p.m. eighty-five individuals were taken to the Virgilio Raniero police station. They were released between 7.30 and 8   p.m. that evening. 12.     The applicant was among the individuals retrieved from one of the city hospitals, where he had accompanied an injured friend. He was transferred to the police station, where he claims he was subjected to various forms of abuse (see paragraph 16 below). 2.     Criminal proceedings against the law-enforcement officers 13.     Following a preliminary investigation, thirty-one law-enforcement officers of different ranks were charged with offences in connection with the events of 17 March 2001. These included kidnapping ( sequestro di persona ) with the aggravating factor that it had been carried out by State officials abusing their powers; unlawful personal searches and inspections ( perquisizione e ispezione personali arbitrarie ) carried out in a manner offensive to dignity; destruction and damage of property ( danneggiamento ); abuse of office; forgery committed by State officials in the drafting of public documents ( falsità ideologica commessa dal pubblico ufficiale in atti pubblici ); criminal coercion ( violenza privata ) (see paragraph 27 below) and causing bodily harm ( lesione personale ) with a number of aggravating factors, such as committing the offence while exercising a public function, operating in a number greater than five, taking advantage of the vulnerability of the injured, and using service batons to commit the offence. 14.     On 13 July 2004 they were committed to the Naples District Court for trial.   The applicant joined the proceedings as a civil party alongside nineteen other individuals.   (a)     Proceedings before the Naples District Court 15.     The Naples District Court’s judgment was issued on 23 January 2010. Its findings may be summarised as follows. 16.     With respect to the offences of aggravated bodily harm, criminal coercion, unlawful personal searches and inspections and destruction of property, the court decided that the proceedings had to be discontinued because the applicable statutory limitation periods had expired. As the prosecution of these offences was time-barred, the court provided only a general overview of the facts it considered to be established in connection with the offences under scrutiny, and of the “egregious conduct” ( gravissime condotte ) of the law-enforcement officers at the Virgilio Raniero police station to the detriment of individuals in their custody, which included the applicant (first-instance judgment, page 12). The court found that the evidence gathered during the investigation and produced at trial demonstrated that the events had occurred in the manner described by the victims   and that it allowed for a reconstruction of the facts with sufficient clarity (page 11). In particular, the court found it established that upon their arrival at the police station, the individuals taken into custody had been made to walk through a hallway surrounded by law-enforcement officers who took turns slapping, kicking, tripping, spitting on and verbally abusing them; that they were forced to kneel with their hands behind their heads and remain in an uncomfortable position, even those who were visibly injured or disabled; that they had to undergo searches while standing naked and barefoot on a floor covered in blood and urine, for a time exceeding that required for searches, while simultaneously undergoing physical and verbal abuse; that they had to remain silent at all times and were not allowed to communicate with their lawyers, some of whom had shown up at the police station, or inform their family members of their being taken into custody; that they were not allowed to use mobile or public telephones in order to communicate their whereabouts, with mobile telephones being seized and in certain cases damaged; that they were beaten and subjected to various form of physical abuse; that they were subjected to threats as well as verbal abuse about their sexual, religious and political preferences (pages 12-14). In the court’s view, this information could clearly have fallen under the scope of the offences the officers had been charged with, had an examination on the merits not been precluded by the expiry of the statutory limitation period (page 14). With specific regard to the applicant, it emerged in the proceedings that he was subjected to several beatings ( ibid. ). It further emerged that he was forced to kneel on the floor with his face to the wall and his hands behind his head while waiting to be searched, alongside other individuals who had been taken into custody. The court found that this treatment persisted notwithstanding repeated requests by the victims to know why they were being detained, as well as requests to contact lawyers and family members. He was not allowed to use a telephone in order to communicate his whereabouts and his mobile phone was damaged. When the applicant identified himself as a trainee lawyer and asked the officers to explain why he was being detained, given that he had not been formally arrested or stopped and had already been identified at the hospital, he was subjected to further physical abuse, which the court described as “very violent treatment”, as well as verbal abuse (pages 98-100). The court also considered that the applicant had become a “designated target” for the law-enforcement officers, who deliberately attempted to instill fear in him by threatening him, stating that they knew where he lived and could get to him at any moment (page 99). The applicant was given two searches in the police station toilets shortly after his arrival (see paragraph 12 above). They were carried out violently and in a manner described as “offensive to dignity” (first-instance judgment, pages 15 and 16). The search was carried out by the same police officers who had retrieved him from the hospital. Despite his protests, he signed a search record which stated that a dangerous item, identified as a “keychain”, had been found in his possession. However, prior to his release, he was supplied with a different search record, which stated that he had been searched by an officer he had not seen before, at 5.30   p.m. (pages 50, 51, and 54). 17.     With respect to the offence of aggravated kidnapping, the court convicted ten law-enforcement officers, including C.S. and F.C.   In assessing the seriousness of the accused’s conduct in this regard, the court observed that the events that unfolded in respect of this offence amounted to a “suspension of constitutional guarantees” (page 43). It found that the individuals detained at the police station had been deprived of their liberty against their will without any justification whatsoever, and that the deprivation had been carried out by means of “unacceptable operational practices” ( ibid .). The court drew a distinction between the offence of kidnapping and the lesser offence of unlawful arrest, concluding that the former provided the more suitable legal classification. It first considered that, in order to exercise powers of arrest, there must be a connection ( collegamento spazio-temporale ) between the person being deprived of his or her liberty and the commission of a crime. In the absence of such a connection, which would – albeit abstractly – justify the exercise of powers of arrest, no legal authority would exist for the deprivation of liberty. Turning to the facts of the case, the court highlighted that no such legal authority existed to justify the indiscriminate retrieval and transfer of every person being treated in the city’s emergency departments to the police station, without at least verifying the reasons why they were in hospital. The foregoing acts, which were described as a “sweep” ( rastrellamento ), were based on the false premise that every single person in the emergency departments had not only taken part in the demonstration, but had also been actively involved in the clashes with law enforcement and could be considered to have engaged in the commission of a criminal offence, and therefore had to be taken into custody for identification, photographing and search purposes (pages 35-38). To highlight the fallacious nature of this premise, the court observed that a number of individuals taken to the police station had had nothing to do with the demonstration, such as one man who had been in the emergency department because earlier that day he had been involved in a motorcycle accident. It also pointed out that if one of the alleged purposes of the retrieval had been to identify suspects, this was not credible as many individuals, including the applicant, had already been identified by law-enforcement officers in the city hospitals. Other individuals had been released from the station having been neither identified nor searched. The court concluded by excluding the applicability of legislation authorising arrests in “exceptional” and “urgent” situations, given that the impugned conduct on the part of the officers had not been carried out as an immediate consequence to the commission of an offence by demonstrators or even in the immediate aftermath of the demonstration. The court also focused on the accused’s awareness that they were engaging in the proscribed conduct. In this respect, it found it established “with absolute certainty” that the accused had been “fully aware” that no legal authority existed to justify their actions (page 43). The court relied, inter alia , on evidence to the effect that several officers had attempted to create ex post facto justifications for their conduct. 18.     Insofar as the offence of forgery committed by State officials is concerned, a number of officers were found criminally responsible for forging search records (see paragraph 16 above). However, the court noted that Law no. 251 of 5 December 2005, which amended the provisions of the Criminal Code regulating statutory limitation periods, had entered into force during the course of the proceedings and was applicable to the case at hand. Under the amendment, prosecution of the offence of forgery of public documents by State officials was time-barred and the proceedings in this connection had to be discontinued (first-instance judgment, pages 68 and 69). 19.     Three officers requested an express waiver of the statutory limitation period in their case ( rinuncia alla prescrizione ). Among them were R.M. and D.T., who had been charged alongside eleven other officers with aggravated bodily harm including, inter alia , causing the applicant contusions to the head and chest. However, the court found that they had not been at the station at around the time the physical abuse against the applicant had taken place and could not therefore be held responsible for the injuries. R.M. was however found responsible, amongst other things, for causing injuries to another individual taking part in the proceedings as a civil party. R.M. and D.T. had both been charged with the offence of criminal coercion. The court found that between 12.30 and 5.30   p.m. at the Virgilio Raniero police station, a number of law-enforcement officers engaged in unlawful conduct, which consisted of compelling the individuals in custody, by use of physical violence and threats, to obey unlawful orders and adopt behaviour that was not justified by reasons of public order or safety. The court added that such conduct was aimed at generating in the victims feelings of inferiority and could be defined as “inhuman and degrading treatment” (pages 100 and 101). The court concluded that while R.M. and D. T. could not be held responsible for specific episodes of abuse, aside from the one incident R.M. had been found responsible for above, they were perfectly aware of what was going on but did nothing to prevent it from happening. In particular, D. T. was found to have permitted the conduct of a colleague who had physically assaulted a number of individuals. This led the court to conclude that the officers were guilty of criminal coercion. 20.     As to the sentences   imposed on the convicted individuals, eight law-enforcement officers convicted of kidnapping were given prison sentences ranging from two years and eight months to two years. R.M. and D.T., who were convicted of both kidnapping and criminal coercion, were sentenced to two years and six months and two years and two months respectively. As an ancillary penalty, the court suspended all of the convicted officers from the exercise of public functions for a period equivalent to the length of their principal sentence. However, the court found that four of the convicted officers, C.S, F.C, R.M. and D. T., could qualify for a full pardon ( indulto ) under Law no 241 of 29 July 2006 and their principal sentences were therefore cancelled ( condonate ) in their entirety. The remaining six officers were given suspended sentences, both with regard to the principal and ancillary sentences, and the court ordered that the conviction should not appear on their criminal record. 21.     The court further recognised the civil parties’ right to compensation, although it dismissed their application for provisional damages and instructed them to apply to the civil courts for quantification of the award. The convicted individuals were further ordered to pay the civil parties’ costs and expenses. (b)     Proceedings before the Naples Court of Appeal 22.     On an unspecified date fourteen law-enforcement officers lodged an appeal with the Naples Court of Appeal. At a hearing on 30 November 2010 the applicant requested that it refer to the Constitutional Court the question whether the amendments to the provisions regulating limitation periods, as introduced by Law no. 251 of 5   December 2005, were consistent with Article 3 of the Italian Constitution. 23.     By a decision of 9 January 2013 the Naples Court of Appeal partially modified the judgment of the District Court. The applicant’s request for a referral to the Constitutional Court was dismissed. 24.     With respect to the offence of kidnapping, the court rejected the arguments put forward by the officers who had been convicted at first instance to the effect that the court had erred in the legal classification of the offence. They contended, inter alia, that the offence better suited to describe the conduct in question ought to have been unlawful arrest rather than kidnapping. The court found that indiscriminately retrieving every person who was in emergency departments on the day of the demonstration and taking them and keeping them in custody at a police station was clearly unlawful conduct. It further found the order issued to that effect equally unlawful, as it was unreasonable to believe that everybody in the hospitals had taken part in the demonstration and had been, even hypothetically, responsible for crimes such as injuring law-enforcement officers. In the light of their rank and qualification, the accused law-enforcement officers were, in the court’s view, perfectly capable of appreciating the “blatant unlawfulness” of the order (appeal judgment, page 30). For the same reason, the officers could not claim to have merely erred in the interpretation and implementation of the order. Once again, in the light of the officers’ rank and qualification, the forcible transfer to the police station of individuals who were held in custody for a considerable amount of time, during which they were physically and verbally abused, could not have been interpreted as stemming from a lawful order. Based on the foregoing considerations, the Court of Appeal confirmed the first-instance court’s legal classification of the offence. The foregoing notwithstanding, it decided that the proceedings against the ten law-enforcement officers, who had been convicted by the District Court, had to be discontinued because of the statute of limitations. In view of this, the court quashed the ancillary sentence imposed by the District Court suspending them from public office (see paragraph 20 above). 25.     The Court of Appeal upheld the convictions of two officers, R.M. and D. T., with respect to the offence of criminal coercion but reduced their sentences to ten and six months respectively. The court then gave the two officers suspended sentences, both with regard to the principal sentence and the ancillary sentence suspending them from public office. It further ordered that the conviction should not appear on their criminal record. 26.     Finally, the court upheld the civil parties’ right to compensation, although it dismissed their application for provisional damages as it considered that it did not have sufficient information to allow it to quantify the amount of pecuniary and non-pecuniary damage suffered. (c)     Proceedings before the Court of Cassation 27.     Ten law-enforcement officers lodged appeals on points of law with the Court of Cassation, which were filed with the registry on 16 March 2015.   By a decision of 9 October 2015, they were dismissed by the Court of Cassation. B.     Relevant domestic law and practice 1.     The offence of criminal coercion 28.     Under Article 610 of the Criminal Code, a person commits the offence of criminal coercion when, by use of violence or threat, he or she compels a person to do or refrain from doing an act. 2.     Statute of limitations and limitation periods 29.     Under Article 39 of the Criminal Code, offences are essentially either indictable or summary, the former attracting more serious penalties than the latter. 30.     Articles 157 to 161 of the Criminal Code contain general provisions governing statutory limitation periods, as well as provisions for the beginning, suspension and interruption of such periods. The provisions regulating statutory limitation periods were amended by Law no. 251 of 5   December 2005. 31.     Article 157 § 1 states that the limitation period is calculated in accordance with the maximum penalty which can be incurred for the offence in question, provided that the period does not amount to less than six years for indictable offences and four years for summary offences. 32.     Article 157 §§ 2, 3 and 4 establish the criteria for calculating limitation periods. Under Article 157 § 6, limitation periods are doubled for specific offences (amongst others, kidnapping, membership of a mafia-type organisation, human trafficking). No limitation periods apply to offences punishable by life imprisonment. 33.   Under   Article 157 § 7 the limitation period can be expressly waived by an accused person. 34.     Article 158 § 1 provides that the limitation period starts to run from the day on which the offence was committed or, in the case of attempted or continuing offences, from the date on which the offender’s activity ceased. 35.     The limitation period may be suspended or interrupted in certain circumstances (Articles 159, 160 and 161). For example, it is interrupted by a judgment of conviction. Article 161 sets out the maximum duration of limitation periods affected by interruptions; when this term is reached, the proceedings must be stopped permanently. Under the same Article, with the exception of the prosecution of offences provided for in Article   51 § 3 (b) and (c) of the Code of Criminal Procedure, an interruption of the limitation period may extend the period by no more than a quarter of the maximum limitation period. 3.     General Pardon 36.     Law no. 241 of 29 July 2006 grants a general pardon with respect to offences committed prior to 2 May 2006 entailing custodial sentences not exceeding three years and pecuniary sanctions not exceeding 10,000 euros (EUR). 4.     Legislation introducing the offence of torture 37.     On 5   March 2014 the Senate adopted a bill for the introduction of torture as a crime in the Criminal Code. The Chamber of Deputies approved the bill, with amendments, on 9 April 2015. It has returned to the Senate for reconsideration. COMPLAINTS Relying on Articles 3, 5, 6, and 13 of the Convention the applicant complains that:   he was subjected to ill-treatment while in police custody at the Virgilio Raniero police station; he was unlawfully arrested and detained, was not brought before a judicial authority, did not have the possibility of informing a family member about his detention and was not given access to a lawyer; the national courts’ failure to conduct the proceedings against the law-enforcement officers in a timely manner resulted in the discontinuation of the proceedings because of the expiry of the statutory limitation periods, which in turn allowed for serious offences against him to go unpunished; and while his right to obtain compensation at the domestic level was recognised by the domestic courts, he was not awarded provisional damages and is required to apply to the civil courts for quantification.     QUESTIONS TO THE PARTIES 1.     Has the applicant been subjected to torture and/or inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?   2.     Having regard to the procedural protection from torture and inhuman or degrading treatment or punishment, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention ( Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, and Gäfgen v. Germany [GC], no. 22978/05, § 115-130, ECHR 2010)?   3.     Do Italian criminal-law provisions, including those regulating statutory limitation periods for criminal offences, ensure an adequate criminalisation of torture and inhuman or degrading treatment as required by Article 3 of the Convention ( Gäfgen , cited above, § 117)?   4.     Was the applicant deprived of his liberty in breach of Article 5 of the Convention?   5.     Did the applicant have at his disposal an effective domestic remedy for his Convention complaints under Article 3 and 5, as required by Article 13 of the Convention?   INFORMATION SOUGHT   The Government are invited to provide information on whether disciplinary sanctions were imposed on the law-enforcement officers charged with the offences in connection with the events of 17 March 2001 and, if so, which; whether, during the course of the criminal proceedings, the officers were suspended from duty and how their careers have evolved following the final domestic decision.   The applicant is invited to inform the Court whether he has applied to the civil courts for a quantification of damages and to submit relevant documents. He is also requested to provide copies of all written submissions and pertinent documentation he submitted to the domestic courts as a civil party in the criminal proceedings.