ÎCCJ, decizie (scj.ro #86620)

ÎCCJ, decizie (scj.ro #86620) (Înalta Curte de Casație și Justiție)

COUR EUROP

É

ENE DES DROITS

DE L’HOMME

EUROPEAN COURT OF

HUMAN RIGHTS

SECOND SECTION

CASE OF

N.C.

v.

ITALY

(Application no.

24952/94)

JUDGMENT

STRASBOURG

11 January

2001

THIS CASE WAS REFERRED

TO THE GRAND CHAMBER,

WHICH DELIVERED

JUDGMENT IN THE CASE ON

…

This judgment will become final in the circumstances set out in

Article 44 § 2 of the Convention. It is subject to editorial revision

before its reproduction in final form.

In the case of N.C. v. Italy

,

The European Court of Human Rights (Second Section), sitting as

a Chamber composed of:

Mr      A.B.

Baka

,

President

,

Mr      B.

Conforti

,

Mr      G.

Bonello

,

Mrs    V.

Strážnická

,

Mr      P.

Lorenzen

,

Mr      M.

Fischbach

,

Mrs    M.

Tsatsa

-

Nikolovska

,

judges

,

and Mr E.

Fribergh

,

Section Registrar

,

Having deliberated in private on

15

December 1998

,

30 November 2000

and on

14

December 2000

,

Delivers the following judgment, which was adopted on the

last-mentioned date:

PROCEDURE

(no. 24952/94) against

Italy

lodged with the

European Commission of Human Rights (“the Commission”) under former

Article 25 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (“the Convention”) by an Italian national,

Mr

N.C.

(“the

applicant”), on

28 April 1994

.

Mr M. Manfreda, a lawyer practising in San Pietro Vernotico (

Brindisi

). The

Italian Government (“the Government”) were represented by their Agent,

Mr U. Leanza, and by their coagent, Mr V. Esposito. The

President of the Chamber, acceded to the applicant’s request not to have his

identity disclosed (Rule 47 § 3 of the Rules of Court).

he was not entitled to claim any compensation under Italian law for his

detention pending trial, which he maintained had not been in conformity with

Articles 5 §§ 1 (c) and 3 of the Convention.

1 November

1998

, when Protocol No. 11 to the Convention came into force

(Article 5 § 2 of Protocol No. 11).

Section of the Court (Rule 52 § 1 of the Rules of Court). Within

that Section, the Chamber called upon to examine the case

(Article 27 § 1 of the Convention) was constituted according to

the provision of Rule 26 § 1 of the Rules of Court.

15

December 1998

, the Court declared the application admissible.

AS TO THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

technical and economic adviser and special representative and agent of company

X.

were opened against the applicant on suspicion of abuse of power and corruption

committed in the course of his functions in 1991.

to the Brindisi District Court requested that the applicant be either remanded

in custody, or placed under house arrest, or prevented from exercising his

functions as director of company X, on the ground that there was a serious

indication of his guilt resulting from the statements of five witnesses and

from the result of an expert opinion carried out in the course of the

preliminary investigations. The content of the statements and of the expert

opinion had been corroborated by further documents. The applicant appeared to

have 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.

The Public Prosecutor further explained that, given that the

applicant maintained his functions in company X, there was a risk that he would

commit further similar offences.

2 November 1993

the Judge for

Preliminary Investigations of Brindisi issued a warrant of arrest against the

applicant on the ground that the indications of guilt which existed against

him, as indicated in the Public Prosecutor’s request of 16 October, were

serious.

As regards the grounds for precautionary measures, the judge

recalled that, as indicated by the Public Prosecutor in his above request, the

applicant had maintained his position as Technical Director of company X. The

judge considered

inter alia

that, in order to decide what precautionary

measure was more suitable in that case, he had to take into account the nature

of the conduct under examination. The worst aspects of the applicant’s conduct

were the failure to observe the rules of the administrative procedure and the

waste of public funds, coupled with the breach of the rules on public

tendering. This conduct had resulted in a project which showed no respect for

the environment, which was very serious, given that “the chaotic and unliveable

character of Southern Italian cities is not caused solely by the spreading 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 precautionary measure, i.e. detention in prison, this is even

more justified 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 (“C.P.P.”) among

the circumstances where detention is mandatory. Otherwise the difference in

treatment would be unjustifiable, and therefore unjust”. The judge concluded

that he was thus 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).”

3 November 1993

.

District Court an application for 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 precautionary measures.

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 precautionary measures: no need to prevent

interference 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 instead 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) C.P.P. requires that there be

a concrete danger - by reasons of the particular circumstances of the case and

of the personality of the accused - 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.

inter alia

drew

the court’s attention to the established case-law to the effect that, when a

precautionary 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.

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) C.P.P. 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.

23

November 1993

the applicant appealed on points of law against the refusal to

release him, on the ground that his detention on remand was in breach of

Articles 273 and 274 (c) C.P.P.. He stressed in particular that the Brindisi

District Court had not given any reasons for the application of precautionary

measures within the meaning of Article 274 (c) C.P.P.

request with the Brindisi Judge for the Preliminary Investigations to revoke

the order for his being kept under house arrest, as he had resigned from his

office of technical director of company X.

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 explained that the applicant could have the possibility of using his

experience and professional skills either on his own account or in the

employment of another company.

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.

20

December 1993

the court pointed out that all previous decisions on the

applicant’s 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. It accordingly ordered

his immediate release.

28

February 1994

the applicant withdrew his appeal on points of law of

23 November 1993

, which was

acknowledged on

8 March 1994

.

15 April

1999

, the Brindisi District Court acquitted the applicant on the

ground that the facts had not occurred (“

perché il fatto non sussiste

”).

This judgment became final on

14 October 1999

.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

Procedure (“C.P.P.”) set out the conditions for precautionary measures (

misure

cautelari

), namely the existence of serious evidence of guilt (“

gravi

indizi di colpevolezza”

) in respect of a crime punishable with life

imprisonment or detention for more than three years.

precautionary measures can be ordered for the following reasons: prevention of

interference with the course of justice (Article 274 (a)), danger of flight

(274 (b)) and prevention of crime (274 (c)).

measures are ordered) “where, given the specific nature and circumstances of

the offence and having regard to the character of the suspect or the accused as

shown by his conduct, acts or criminal record, there is a genuine risk that he

will commit a serious offence involving the use of weapons or other violent

means against the person or an offence against the constitutional order or an

offence relating to organised crime or a further offence of the same kind as

that of which he is suspected or accused”.

breach of Article 274 does not give rise to a right to compensation under

Articles 314 and 315 C.P.P..

trial can only be ordered if all other precautionary measures appear to be

inadequate. Where there is serious evidence that the offence of being a member

of a mafia-type organisation has been committed, there is a rebuttable

presumption that the necessity for detention pending trial exists.

inter alia

that

the detention order must contain the explanation of the actual grounds for the

precautionary measure and of the specific evidence of guilt, including the

factual elements on which the evidence is based and the grounds for its

pertinence, and must take into account also the time elapsed since the

committal of the offence.

has been acquitted in a judgment that has become final – on the grounds that

the case against him has not been proved, he has not committed the offence, no

criminal offence has been committed or the facts alleged do not amount to an

offence at law – is entitled to equitable reparation for any period he has

spent in detention pending trial, provided that misrepresentations or fault on

his part were not contributory factors in his being detained.

detention pending trial has been found, in a final decision, to have been

ordered or maintained in breach of Articles 273 and 280 C.P.P., is entitled to

compensation. An application for reparation under Article 314 C.P.P. must be

made within eighteen months after the judgment becomes final. The maximum award

is 100,000,000 Italian lire (Article 315 C.P.P.).

AS TO THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 5 OF

THE CONVENTION

to compensation although his detention on remand had not been in conformity

with Article 5 §§ 1 (c) and 3. He alleged a breach of

Article 5 § 5 of the Convention. The relevant parts of Article 5 read

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; …

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. …

who has been the victim of arrest or detention in contravention of the

provisions of this article shall have an enforceable right to compensation.”

with where it is possible to apply for compensation in respect of a deprivation

of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see the

Wassink v. the Netherlands judgment of 27 September 1990, Series A no. 185-A,

p. 14, § 38). The right to compensation under paragraph 5 therefore

presupposes that a violation of one of the other paragraphs has been

established, either by a domestic authority or by the Convention institutions.

It follows that the first issue to be determined in the present

case is whether the disputed detention was in conformity with paragraphs 1 and

3 of Article 5.

A.  Whether the applicant was “deprived of his

liberty”

between

3 November 1993

and

13

November 1993

, and his house arrest between 13 November and

20 December 1993

amounted

to “deprivation of liberty” within the meaning of Article 5 § 1 of the

Convention.

bring the applicant before the competent legal authority on reasonable

suspicion of having committed an offence. Consequently, the detention at issue

falls to be examined under Article 5 § 1 c) of the Convention.

B.  The

conformity of the applicant’s detention with paragraph 1 (c) of Article 5

2 December 1993

(a)  The

parties’ submissions

contrary to what the competent authorities had claimed, there was no serious

evidence that he was guilty. The very presumption underlying the charge

appeared blatantly erroneous as it was based on misrepresentation of the facts.

The appointment of Y had not been decided, as said by the Public Prosecutor, by

company X but directly by the mayor of

Brindisi

. Secondly,

the applicant’s responsibility for Y’s appointment had been established on the

premise that the body with decision-making powers in this respect was part of a

company controlled by company X. The following facts had not been taken into

account: the applicant was not a member of the Board of Directors of this body

(which was independent and not controlled by company X); he had not appointed

anybody, but simply recommended three candidates; Y’s appointment had been made

in the applicant’s absence. The “indication of guilt” against the applicant was

therefore unsubstantiated and not serious, and the remand measure at issue was

arbitrary and based solely on the presumption referred to in

Article 274 (c) of the Code, i.e. the danger of recurrence of acts

similar to that charged.

concept of necessary precautions against recurrence of the offence is common to

Article 5 § 1 (c) of the Convention and Article 274 (c) of the Italian Code of

Criminal Procedure, and has the same substance and scope under both systems.

He stressed that, under the Court’s case-law (Neumeister and

Wemhoff cases) the Court has to examine, in addition to the grounds for

detention, each of the reasons invoked in the relevant decisions, in order to

ascertain whether they are “relevant and sufficient”, i.e. whether they have

been clearly and specifically indicated (Latellier case). As to the danger of

recurrence of offences (Matznetter judgment), the Court has held it to be

consistent with Article 5 in the presence of other special circumstances such

as long persistence of criminal behaviour, magnitude of the damage incurred by

the victim, and dangerousness of the person charged. In the Stögmüller case the

Court ruled out the applicant's dangerousness owing to the fact that he had

committed no further offences over a long period.

The interpretation and application of Article 274 (c) of the

Italian Code of Criminal Procedure have identical effects to those developed so

far in the Court's case-law. The Italian courts, concerning the necessary

“reality” of the danger of re-offending, have repeatedly ruled that this is

alien to purely conjectural arguments (generally, see Cass. I,

18/12/90

, Cuzi),

and have pointed out the need for concurrent fulfilment of the two requirements

constituted by the material circumstances and the dangerousness of the accused

(which can normally be inferred from criminal-law and judicial precedents) (see

for example Cass. I,

11/2/91

, Fabiano and Cass. I,

27/3/1991

, Trovato).

exist plentiful domestic decisions specifying that when a precautionary measure

affecting a person is to be applied after a considerable time has elapsed since

the offence was committed, the existence of the need for precautions referred

to in Article 274 (c) C.P.P. must be assessed,

inter alia

according to

the offender's conduct subsequent to the criminal act (Vercelli District Court,

25/3/1991, Belletato, in Giur. It., II, § 249). The principle evolved in the

case-law had later been taken over by the legislator with the reformulation of

Article 292 of the C.P.P.: indent c) of the second paragraph now

expressly provides that, in order to determine the precautions required, regard

must also be had to the time elapsed since the commission of the (alleged)

offence.

that the impugned measures had not been taken in conformity with the

aforementioned criteria. Indeed, no reference had been made, and therefore no

importance attached, to the fact that he had no previous convictions and no

charges pending against him, nor had any reference been made or importance

attached to the fact that from the time of the alleged offence to the time when

the measures were imposed (two years) he had not been involved in any legal

proceedings. Moreover, no real inquiry had been made concerning his character.

To the contrary, the competent authorities had relied on arbitrary grounds. In

his request of 16 October 1993, the Prosecutor had merely noted that, as the

applicant was still carrying on his occupation, “this circumstance, in

conjunction with the part played by the professional man in the case, indicated

the reality of the danger that, if released, the person under investigation

might commit other offences of the same type as those which are the subject of

the proceedings.” In its order of

2 November

1993

, the Preliminary Investigation Judge had relied on grounds

which were utterly arbitrary. He had admitted that the precautionary detention

measure had been applied on grounds of equity instead of the law. The

conditions for the imposition of precautionary detention were blatantly

inconsistent both with the provisions of Article 5 § 1 (c)

of the Convention and with the terms of Article 274 (c) C.P.P.

Finally, in its decision of

13 November 1993

, the

Brindisi

Court

had simply stated as a self-evident fact: “there was no doubt

that in the present case the need for precautions referred to in

Article 274 (c) C.P.P. existed, considering how the accused had

succeeded in unlawfully attaining the economic ends identified”. This

statement, according to the applicant, amounted to a breach of the principle of

presumption of innocence contained in Article 6 § 2 of the Convention.

detention on remand was in accordance with Articles 272, 280, 285 and

274 (c) C.P.P. as there existed reasonable and serious suspicion that the

applicant was guilty and there existed a danger that he would commit further

crimes, as he was still technical director of company X and the building works

were still in progress. The detention order was only revoked after the

applicant had resigned from his position as technical director, as the ground

for the precautionary measure then ceased to pertain. The Government thus

consider that the applicant’s detention was compatible with Article

5 § 1 (c) of the Convention.

(b)  The

Court’s assessment

(i)  Whether

the detention in issue was “lawful” and free from arbitrariness

detention was “lawful”, including whether it complied with “a procedure

prescribed by law”. The Convention here refers back to national law and lays

down the obligation to conform to the substantive and procedural rules thereof

(see, amongst others, the Amuur v. France judgment of 25 June 1996,

Reports

of Judgments and Decisions

1996-III, p. 850, § 50).

liberty is executed in conformity with national law; it must also be necessary

in the circumstances. Article 5 also requires that any measure depriving the

individual of his liberty must be compatible with the purpose of Article 5,

namely to protect the individual from arbitrariness (

Witold Litwa v. Poland

,

no. 26629/95, § 73, ECHR 2000- ; K.-F. v. Germany judgment of

27 November 1997,

Reports

1997-VII, p. 2674, § 63). In a democratic

society subscribing to the rule of law, no detention that is arbitrary can ever

be regarded as “lawful” (see the Winterwerp v. the Netherlands judgment of 24

October 1979, Series A no. 33, p. 18, § 39).

authorities, notably the courts, to interpret and apply domestic law. However,

since under Article 5 § 1 failure to comply with domestic law entails a breach

of the Convention, it follows that the Court can and should exercise a certain

power to review whether this law has been complied with (see the Scott v. Spain

judgment of 18 December 1996,

Reports

1996, p. § 57, and the Bouamar v.

Belgium judgment of 29 February 1988, Series A no. 129, p. 21, § 49).

of the Italian Code of Criminal Procedure, detention pending trial can only be

ordered if there exists serious evidence of guilt (see paragraph 23 above) and

where there is a need for precautionary measures (paragraph 24 above). Under

Article 274 (c) of the Code of Criminal Procedure, the danger of committal

of further offences must be assessed in the light of the personality of the

accused and particularly of the latter’s behaviour or record (see paragraph 28

above). Pursuant to Article 292 C.P.P., the remand order must contain the

explanation of the actual grounds for the precautionary measure and must take

into account also the time elapsed since the committal of the offence (see

paragraph 30 above).

α     The

existence of serious evidence of guilt

recalls that the “reasonableness” of the suspicion on which an arrest must be

based forms an essential part of the safeguard against arbitrary arrest and

detention which is laid down in Article 5 § 1 (c). Having a reasonable suspicion

presupposes the existence of facts or information which would satisfy an

objective observer that the person concerned may have committed the offence (

Labita

v. Italy

[GC], n° 26775/95, § 155, ECHR 2000-). What may be regarded as

reasonable will however depend on all the circumstances (see the Fox, Campbell

and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no.

182, p. 16, § 32).

reasonable suspicion referred to in Article 5 § 1 (c) of the Convention does

not mean that the suspected person’s guilt must at that stage be established.

It is precisely the purpose of the investigation that the reality and nature of

the offences laid against the accused should definitely be proved (see Eur.

Comm. HR, Contrada v.

Italy

, no. 27143/95, dec.

14.01.97, D.R. 88, p. 112). S

ub-paragraph

(c) of Article 5 § 1 does not even presuppose that the police should have

obtained sufficient evidence to bring charges, either at the point of arrest or

while the applicant was in custody (see the Erdagöz v. Turkey judgment of 22

October 1997,

Reports

1997-VI, p. 2314, § 51

).

applicant came from the statements by five witnesses and from the result of an

expert opinion, which had been corroborated by the documents gathered in the

course of the preliminary investigations (see paragraph 9 above).

disposed of certain elements which suggested his responsibility, but has

submitted factual arguments with a view to proving that the indications of his

guilt could have been easily countered, had the facts been investigated in more

detail. The Court considers however that it is not its task to assess whether

these elements, which concern the merits of the accusation, ought to have been

known to or examined in greater detail by the authorities at the time when they

issued the detention order. Its task is to examine whether the elements of

which the authorities had knowledge at the time when the order was issued were

reasonably sufficient to believe that he had committed an offence. The Court

has examined these elements and has not disclosed any manifestly unreasonable

or arbitrary conclusions drawn by the competent authorities from them. It thus

sees no reason to doubt that the elements of which the authorities disposed

were sufficient to believe, at that time, that the applicant had committed the

offence.

β     The

danger of re-offending

Preliminary Investigations based his order of 2 November 1993, besides on the

evidence of guilt, on the fact that the applicant had maintained his position

as technical director of company X and was thus in a position to commit further

similar offences. The Court does not find this reason to be manifestly

unreasonable or arbitrary. In particular, the Court does not find that the mere

fact that in the above decision there is no explicit consideration of the

applicant’s clean record or of the circumstance that he was not alleged to have

re-offended during the two years which had elapsed after the alleged offence is

sufficient to conclude that the Judge for the Preliminary Investigations did

not take these elements into account, as required under Italian law.

13 November 1993

, the Court

notes that the Brindisi District Court again relied on the existence of serious

evidence of guilt, and explained the existence of a danger of the applicant’s

re-offending by reference to “how he (had) succeeded in unlawfully attaining

the economic ends identified”. The Court considers that, despite its

conciseness, this decision fulfils the requirement of Article 274 (c)

C.P.P., that the “particular modalities of the case” be taken into account when

ordering precautionary measures.

does not find that the conclusion of the national authorities that there was a

genuine risk that the applicant might re-offend was arbitrary.

γ     Conclusion

the applicant’s detention between 3 November and

2 December

1993

was in conformity with Article 5 § 1 (c) of the Convention.

Further, it does not find that the content of the decision of

13 November 1993

raises any

separate issue under Article 6 § 2 of the Convention.

20 December

1993

3 December 1993

refusing

his application for release was “obstinate and wrongful”. The ground for the

detention pending trial had always been the fact that the applicant had

maintained his functions in company X. Given that he had resigned, it was

logical to release him. The Judge for the Preliminary Investigations, however,

held that the risk of re-offending persisted in the light of the circumstance

that the applicant’s experience and professional skills were such as to make it

easy for him to resume his allegedly unlawful activities either on his own

account or in the employment of companies other than company X (see paragraph

18 above). The applicant contended therefore that his detention after

3 December 1993

was

arbitrary.

detention between 3 and

20 December 1993

was not rendered

unlawful by the mere fact that the remand order was subsequently set aside on

appeal.

in principle be lawful if it is carried out pursuant to a court order, and that

a subsequent finding that the court erred under domestic law in making the

order will not necessarily retrospectively affect the validity of the

intervening period of detention.  For this reason, the Strasbourg organs have

consistently refused to uphold applications from persons convicted of criminal

offences who complain that their convictions or sentences were found by the

appellate courts to have been based on errors of fact or law (see the Benham v.

the United Kingdom judgment of 10 June 1996,

Reports

1996-III, p. 753, §

42 and the Tsirlis and Kouloumpas v. Greece judgment of

29 May 1997,

Reports

1997-III,

p. 924, § 58).

in the period in question was not unlawful under national law. Nor did the mere

fact that the decision of

3 December 1993

was set aside on

appeal affect the lawfulness of the detention.

detention was arbitrary, in that the Judge for the Preliminary Investigations

refused to apply the relevant legislation and case-law correctly, and relied on

a totally arbitrary ground for refusing to release him (his possibility of using

his professional skills on his own or on behalf of other companies).

be irrelevant or arbitrary (see the Matznetter v.

Austria

judgment

of

10 November 1969

, Series A no. 10, p. 33, § 9

in fine

).

It thus does not find the applicant’s detention between 3 and

20 December 1993

to have

been incompatible with Article 5 § 1 (c) of the Convention.

C.  The

conformity of the applicant’s detention with paragraph 3 of Article 5

the circumstances of the case under consideration, the period during which the

applicant was detained on remand exceeded the “reasonable time” referred to in

Article 5 § 3 of the Convention.

reasonable suspicion that the person arrested has committed an offence is a

condition

sine qua non

for the lawfulness of the continued detention,

but after a certain lapse of time it no longer suffices. In such cases, the

Court must establish whether the other grounds given by the judicial

authorities continued to justify the deprivation of liberty. Where such grounds

were “relevant” and “sufficient”, the Court must also ascertain whether the

competent national authorities displayed “special diligence” in the conduct of

the proceedings (

Labita v. Italy

[GC], No. 26772/95, ECHR 2000-IV, §

153).

period of detention on remand of which the applicant complains is of one and a

half months only, two weeks of which were house arrest. It observes that, in

addition to the cogency of the case against the applicant, the main reasons

referred to by the District Court were the seriousness and nature of the

offence and the danger of re-offending. The Court finds that these reasons were

both relevant and sufficient. It further finds that detention was not unduly

prolonged by the way the case was handled.

Accordingly, the Court considers that the length of the

detention on remand complained of did not exceed the reasonable time referred

to in Article 5 § 3 of the Convention.

D.  The existence of an enforceable right to

compensation

under paragraph 5 presupposes that a violation of one of the other paragraphs

has been established, either by a domestic authority or by the Convention

institutions. In the light of its findings above that the applicant’s detention

was in conformity with Article 5 §§ 1 and 3 of the Convention, it considers

that there has been no violation of Article 5 § 5 of the Convention in the

present case.

FOR THESE REASONS, THE COURT

Holds,

by 4 votes

to 3, that there has been no violation of Article 5 § 5 of the

Convention.

Done in English, and notified in writing on

11 January 2001

, pursuant

to Rule 77 §§ 2 and 3 of the Rules of Court.

Erik

Fribergh

András

Baka

Registrar                                                                                 President

In accordance with Article 45 § 2 of the Convention and Rule 74

Mrs Strážnická and Mrs Tsatsa-Nikolovska, is annexed to this judgment.

A.B.B.

E.F.

DISSENTING OPINION OF JUDGE bONELLO

JOINED BY JUDGES Strážnická

AND tsatsa-nikolovska

course of criminal investigations, for 48 days. At the end of his trial he was

acquitted on the ground that the facts attributed to him had not occurred. He

sought redress in accordance with Article 5 § 5, as no right to compensation

exists in the circumstances in the domestic system.

to be lawful in terms of the Convention, it must firstly be in accordance with

domestic law. For a precautionary measure such as pre-trial detention to

conform with Italian law, it has to satisfy at least two conditions. There must

exist serious indications of guilt, together with a genuine risk that the

suspect will, if not kept in a state of detention, commit further offences. The

judge is under an obligation to state the specific reasons which induce him to

fear that the suspect would re-offend.1 Any breach of any of these conditions

would render the detention unlawful.

Brindisi District court on

13 December 1993

when extending the

applicant’s pre-trial detention, was the following: “there undoubtedly was a

danger of his (the applicant’s) committing further crimes… considering how the

accused succeeded in unlawfully attaining the economic ends identified”. In

other words: there is a danger that the accused will re-offend, as he has

already committed the criminal acts with which he is charged.

fact that a person was finally acquitted of the offence charged, does not

automatically render his pre-trial deprivation of liberty unlawful.[1] Detention pending judgement

would, on the other hand, be unlawful if it violated the requirements of

national law, or of the Convention.

the applicant, ordered by the Brindisi court, and did not distance itself from

that court’s conclusions that there was a danger of the applicant committing

further crimes, considering that he had already succeeded in committing

previous crimes. With this finding I disagree.

Italian law, the court is under an obligation to give, in detail, the reasons

which induced it to conclude that there existed a danger of re-offending. The

Brindisi

court

failed majestically in this obligation.

This, alone, would render the detention illegitimate.

existence of a real possibility of re-offending is “alien to purely conjectural

arguments”.[2]

As it is, the

Brindisi

court tied its persuasion that the applicant

could re-offend, to the persuasion that he had already offended before. This

was not pure conjecture. It was a mistaken, improper and false conjecture based

on a false, improper, and mistaken premise. The

Brindisi

court

relied exclusively on guesswork, and guesswork has a disturbing habit of

letting you down.

commit other criminal offences, the

Brindisi

court banked on what

is, in essence, a violation of the presumption of innocence. That court assumed

that the applicant was guilty, and proceeded to pull the presumption of

innocence inside out. Basing itself on a mischievous abuse of an illegitimate

‘presumption of guilt’ it concluded that, once guilty, always guilty. The

majority has, in substance, found no reasons to disassociate itself from this

bizarre damage to the presumption of innocence.

relevant considerations to be taken into account when determining the risks of

re-offending are the accused’s personality, including his behaviour prior to

being charged, and his conduct after the facts with which he stands charged.

The accused applicant had never been convicted of a single offence, nor had he

any other criminal charges pending, nor was there any allegation that he had

‘re-offended’ after that facts with which he stood charged. These

considerations, sensibly deemed determining by the Italian legal system, were exemplarily

disregarded by the

Brindisi

court.

previous (inexistent) crimes as the basis of the risk of committing further

crimes. The majority has not found it offensive to legal logic to accept that

there existed reasonable fears of ‘re-offending’ when there had never been any

‘offending’ at all in the first place. That is where, sadly, we go separate

ways.

(and the duty) to review whether domestic law has been complied with in matters

of deprivation of liberty.[3]

It is a power which, to my way of seeing, the Court has used rather

economically in the present case.

court – was dispossesed of his liberty for 48 days. It is a matter of

regret that Italian law does not grant him any hope of redress. It is a matter

of greater regret that neither did a court of human rights.

1

Article 292 of the Italian Code of Criminal Procedure.

[1]

See Benham v.

United Kingdom

,

10 June 1996

, Vol

3, p. 753, § 42; Kouloumpas v.

Greece

,

29 May 1997

, Vol.

3, p. 924, § 58.

[2]

See § 36

[3]

See

§

42