CASE OF N.C. v. ITALY
No violation of Art. 5-5
András Baka
7. The applicant was the technical director, technical and economic adviser and special representative and agent of company X. 8. On an unspecified date, preliminary investigations were opened against the applicant on suspicion of abuse of power and corruption committed in the course of his functions in 1991. 9. On 16 October 1993 the Public Prosecutor attached 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. 10. On 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).” 11. The applicant was arrested on 3 November 1993. 12. On the same day he filed with the Brindisi 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. 13 14. Finally, the applicant 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. 15. 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) 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. 16. On 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. 17. On 30 November 1993 the applicant filed a 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. 18. 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 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. 19. 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. 20. In a decision of 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. 21. On 28 February 1994 the applicant withdrew his appeal on points of law of 23 November 1993, which was acknowledged on 8 March 1994. 22. By a judgment of 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. 23. Articles 273 and 280 of the Code of Criminal 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. 24. Article 274 C.P.P. provides in addition that 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)). 25. Article 274 (c) reads as follows: (precautionary 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”. 26. Detention pending trial ordered or maintained in breach of Article 274 does not give rise to a right to compensation under Articles 314 and 315 C.P.P.. 27. Under Article 275 § 3 C.P.P., detention pending 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. 28. Article 292 C.P.P. provides 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. 29. Article 314 § 1 C.P.P. provides that anyone who 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. 30. Under Article 314 § 2 C.P.P., a person whose 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.).