CASE OF CIULLA v. ITALY
Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 5-1;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
C. Russo;N. Valticos
10. Mr Salvatore Ciulla, who was born in Palermo in 1950, was prosecuted in Italy by various public prosecutors’ offices and was also the subject of "preventive" proceedings (prevenzione). Although the present case is not concerned with the prosecutions, some particulars should be given of one of them (which was started in Milan) as it is bound up with the circumstances of this case. 11. The applicant was arrested in April 1982 in connection with offences under the drugs legislation. On 9 December 1982, during the judicial investigation of his case, he was released subject to court supervision. 12. On 24 October 1983, the Milan District Court sentenced him to eleven years and six months’ imprisonment, imposed a fine of 70 million lire and, as a security measure (misura di sicurezza), made a supervision order to last for eight years. 13. On 8 November 1983, at the Public Prosecutor’s request and pursuant to Article 277 of the Code of Criminal Procedure, the same court in consequence revoked the applicant’s release and issued a new arrest warrant on the ground that there was a risk that he would abscond. On an application by Mr Ciulla and after concurring submissions had been made by the Principal Public Prosecutor, the Court of Cassation set aside the latter decision on 30 January 1984. It held that the revocation of the order made on 9 December 1982 for the applicant’s release was "unlawful" because it had not been included in the judgment whereby the applicant had been convicted and sentenced. As for the new warrant, it was "bad for lack of reasons" as neither the severity of the penalty imposed nor the fact that co-defendants had absconded amounted to a relevant and sufficient justification. On the first of these issues, the Court of Cassation remitted the case to the Milan District Court; no information as to any action taken by the latter court has been provided by those appearing in the present proceedings. The applicant was immediately released. 14. On 1 February 1985, the Milan Court of Appeal varied the judgment of 24 October 1983 by reducing the sentence to nine years’ imprisonment and a fine of 50 million lire. On 22 January 1986, the Court of Cassation dismissed an appeal on points of law by Mr Ciulla and held that an appeal on points of law by the Public Prosecutor was inadmissible. 15. On 1 and 10 October 1983, when the proceedings at first instance were drawing to an end (see paragraph 12 above), the Commissioner of Police (questore) and the Public Prosecutor in Milan asked the Milan District Court to order "special supervision" (sorveglianza speciale) of the applicant as a preventive measure and at the same time to prohibit him from residing in certain areas. They also sought ancillary orders of a financial nature, namely the seizure and confiscation of assets. In the first part of their application they relied on section 3 of Law no. 1423 of 27 December 1956; and in the second part, on Law no. 575 of 31 May 1965 (see paragraphs 19-20 below). 16. On 19 December 1983, the District Court (Sixth Division) held an initial hearing but had to adjourn the proceedings owing to an irregularity in the service of some of the summonses. The case was subsequently relisted for hearing on 5 March 1984. In the meantime, on 29 February, the prosecution had amended its submissions; it now sought a compulsory residence (soggiorno obbligato) order, likewise provided for in the 1956 Law. The applicant failed to appear at the hearing on 5 March. As the prosecution’s new submissions had to be communicated to him, the court again adjourned the case. The hearing eventually took place on 8 May, with Mr Ciulla present, and at it the prosecution applied for Mr Ciulla’s arrest under section 6 of the 1956 Law (see paragraph 19 below). The president of the Sixth Division granted the application and Mr Ciulla was taken into custody at Milan Prison that same day. In order to establish that there were "particularly serious grounds" within the meaning of section 6, the prosecution had cited, among other things, the heavy sentence already imposed by the same court (see paragraph 12 above). The president’s decision was couched in the following terms (translated from the Italian): "The president of the Sixth Criminal Division, Having regard to the Public Prosecutor’s application of 8 May 1984 for Salvatore Ciulla to be taken into custody under section 6 of Law no. 1423 of 1956, Noting that an application has been made for an order requiring Salvatore Ciulla to reside in a specified locality and that there are particularly serious grounds for this measure, namely all the evidence set forth in the application of the Commissioner of Police and the Public Prosecutor and the recent sentence of eleven years and six months’ imprisonment and fine of 70 million lire imposed on [Ciulla] for serious drug offences; that Salvatore Ciulla, a person suspected of belonging to Mafia-type associations, is shown by all the evidence in the file to be deeply involved in illegal international drug-trafficking; and that it thus appears on present evidence and for the purpose of this order sufficiently proved that he constitutes a danger to society; and having regard further to the Public Prosecutor’s submissions in support of his application, For these reasons, having regard to section 6 of Law no. 1423 of 1956, ORDERS that Salvatore Ciulla, born in Palermo on 21 February 1950, shall be held in custody in Milan Prison until the decision to be taken in the present proceedings becomes enforceable. ..." Counsel for Mr Ciulla immediately applied for the provisional release of his client, but the court reserved its decision on this application. 17. On 24 May, the Sixth Division of the court ordered that the applicant should be restricted to a specified place of residence for five years, under section 3 of the 1956 Law, and that some of his assets should be confiscated. On 25 May, the police took Mr Ciulla to a small town in the province of Ancona. He remained there only until 24 October 1984, when he was arrested under a warrant issued by the investigating judge of Palermo in connection with other proceedings. 18. The applicant is currently serving the sentence passed on him by the Milan Court of Appeal (see paragraph 14 above). 19. Law no. 1423 of 27 December 1956 ("the 1956 Law") enables preventive measures to be taken against "persons presenting a danger to safety and public morals". That Law is summarised in its essentials in the Guzzardi judgment of 6 November 1980 (Series A no. 39, pp. 17-19, paras. 45-51), and it will accordingly suffice to cite here only section 6, as amended by Law no. 152 of 22 May 1975 (translated from the Italian): "If the application [for a preventive measure] is for an order for compulsory residence in a specified locality, the presiding judge of the District Court, during the procedure ..., may, where there are particularly serious grounds, make a reasoned order (provvedimento motivato) that the applicant be held in prison until the preventive measure has become final. At the same time as it makes the order for compulsory residence in a specified locality, the court shall order that [the person concerned] be taken by the police from the prison in which he is being held to the place of compulsory residence and handed over to the local police authorities." 20. Law no. 575 of 31 May 1965 ("the 1965 Law"), as amended in 1982, supplements the 1956 Law with procedural and substantive rules (applicable both to persons and to property) directed against individuals whom there are reasons to suspect of belonging to Mafia-type associations. Its provisions do not have any bearing on section 6 of the 1956 Law (see also the Guzzardi judgment previously cited, p. 19, para. 52). 21. Since the events in this case, the 1956 and 1965 Laws have been amended by Law no. 327 of 3 August 1988. Under this Law it is no longer possible to hold a person in custody while an application for a compulsory residence order is being considered, and such an order must henceforth be executed in the locality in which he is resident or ordinarily resident (comune di residenza o di dimora abituale). Section 6 of the 1956 Law now reads as follows (translated from the Italian): "1. If the application is for special supervision together with a compulsory residence order or an exclusion order, the presiding judge of the District Court, during the procedure ..., may make an order (decreto) for the temporary withdrawal of the person’s passport and for the suspension of the validity of any equivalent document allowing the holder to leave the country. 2. Where there are particularly serious grounds, he may also direct that a temporary compulsory residence or exclusion order should be made against the person concerned until the preventive measure has become final." 22. According to documents produced by those appearing before the Court, the Italian courts - the Constitutional Court, the ordinary first-instance and appellate courts and the administrative courts - have given a number of decisions concerning the status of the Convention in Italy’s domestic legal order, into which it was incorporated by Law no. 848 of 4 August 1955. With one exception - a judgment of 27 March 1980 of a full court of the Court of Audit (Foro italiano 1980, III, cols. 352-355) -, these decisions have not recognised that the Convention has any constitutional status. Furthermore, the courts concerned do not seem to have had any opportunity to state whether, as certain legal scholars maintain, the Convention ranks midway between the Constitution and ordinary statutes, that is to say whether it prevails even over statutes enacted after the Convention was ratified by Italy. 23. As regards more particularly Article 5 (art. 5) of the Convention, the Government produced the texts of six decisions, but none of them bore on the 1956 Law. Firstly, there were four judgments of the Court of Cassation. These variously cited a passage from a Commission report (First Criminal Division, 7 December 1981, Minore case), drew attention to the Convention’s usefulness as an interpretative instrument (full court, 13 July 1985, Buda case) and ruled that there had been no breach of paragraph 2 of Article 5 (art. 5-2) (First Criminal Division, 9 July 1982, Signorelli case, and 25 March 1986, Trinco case). To these were added two judgments of the Rome District Court relating to paragraph 5 (art. 5-5). The first of these (15 May 1973) gave no decision on compensation because the court held there had been no breach of paragraph 1 (art. 5-1) (Luttazzi case, Foro italiano 1973, I, cols. 2933-2936); in the second of them (7 August 1984), on the other hand, the court awarded the plaintiff compensation (Mustacchia case, Temi Romana 1984, pp. 977-980).