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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> COLOZZA v. ITALY - 9024/80 [1985] ECHR 1 (12 February 1985)
URL: http://www.bailii.org/eu/cases/ECHR/1985/1.html
Cite as: (1985) 7 EHRR 516, [1985] 7 EHRR 516, [1985] ECHR 1, 7 EHRR 516
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In the Colozza case *,
_______________
* Note by the Registrar: The case is numbered 7A/1983/63/97. The
second figure indicates the year in which the case was referred to the
Court and the first figure its place on the list of cases referred in that
year; the last two figures indicate, respectively, the case's order on
the list of cases and of originating applications (to the Commission)
referred to the Court since its creation.
_______________
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr. G. Wiarda, President,
Mr. J. Cremona,
Mr. Thór Vilhjálmsson,
Mr. E. García de Enterría,
Mr. L.-E. Pettiti,
Mr. C. Russo,
Mr. J. Gersing,
and also of Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 28 September 1984 and on
22 January 1985,
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 18 July 1983, within
the three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. The case originated in an
application (no. 9024/80) against the Italian Republic lodged with the
Commission on 5 May 1980 under Article 25 (art. 25) by Mr. Giacinto
Colozza, an Italian national. The Commission had ordered the joinder
of this application with another (no. 9317/81), lodged against the
same State on 21 July 1978 by Mr. Pedro Rubinat, a Spanish national.
2. The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Italy recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
purpose of the request was to obtain a decision as to whether or not
the facts of the case disclosed a breach by the respondent State of
its obligations under Article 6 para. 1 (art. 6-1).
3. In response to the inquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, Mr. Colozza stated that he
wished to take part in the proceedings pending before the Court and
designated the lawyer who would represent him (Rule 30).
4. The Chamber of seven judges to be constituted included,
as ex officio members, Mr. C. Russo, the elected judge of Italian
nationality (Article 43 of the Convention) (art. 43), and
Mr. G. Wiarda, the President of the Court (Rule 21 para. 3 (b)). On
21 September 1983, the President drew by lot, in the presence of the
Registrar, the names of the five other members, namely Mr. J. Cremona,
Mr. Thór Vilhjálmsson, Mr. L. Liesch, Mr. L.-E. Pettiti and
Mr. J. Gersing (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43). Subsequently, Mr. E. García de Enterría,
substitute judge, replaced Mr. Liesch, who was prevented from taking
part in the consideration of the case (Rules 22 para. 1 and
24 para. 1).
5. Mr. Wiarda, who had assumed the office of President of the
Chamber (Rule 21 para. 5), ascertained, through the Registrar, the
views of the Agent of the Italian Government ("the Government"), the
Delegate of the Commission and the representative of the applicant
regarding the procedure to be followed. On 6 October 1983, the
President directed that the Agent and the representative should each
have until 15 November to file a memorial and that the Delegate should
be entitled to reply in writing within two months from the date of the
transmission to him by the Registrar of whichever of the aforesaid
documents should last be filed (Rule 37 para. 1).
On 7 November 1983, the President extended the first time-limit
to 28 December. The memorial of Mr. Colozza - to whom the President
had granted leave, on 22 August 1983, to use the Italian language
during the proceedings (Rule 27 para. 3) - was received at the
registry on 3 January 1984. The Agent of the Government, to whom the
President had granted a further extension of the time-limit until
29 February, filed the original Italian text of his memorial at the
registry on 2 March and the French translation, the official text for
the Court, on 5 April.
The Delegate stated, in a letter of 14 May, that he did not intend to
avail himself of his right to reply in writing.
6. On various dates between 15 February and 17 May 1984, the
registry was informed first of Mr. Colozza's death, on
2 December 1983, and then of his widow's wish to have the proceedings
continued, to take part therein and to be represented by the same
legal adviser as her husband. For the sake of convenience, the
present judgment will continue to refer to Mr. Colozza as "the
applicant", although Mrs. Colozza is today to be regarded as having
this status (see the X v. the United Kingdom judgment of
5 November 1981, Series A no. 46, p. 15, para. 32).
7. After consulting, through the Registrar, the Agent of the
Government, the Commission's Delegate and the applicant's
representative, the President directed on 28 June 1984 that the oral
hearings should open on 26 September 1984 (Rule 38). He also decided
that the hearings would relate only to Mr. Colozza's case and not to
that of Mr. Rubinat.
On 12 July, the President granted to the Agent of the Government leave
to use the Italian language at the hearings (Rule 27 para. 2).
On 14 August, the Registrar received Mrs. Colozza's claims under
Article 50 (art. 50) of the Convention and, on 18 September, the
Government's observations thereon.
On 31 August and 26 September, the Commission and the Government filed
a certain number of documents which the Registrar, acting on the
President's instructions, had requested them to supply. Further
documents were lodged by the applicant's representative on 10
and 12 December.
8. The hearings were held in public at the Human Rights Building,
Strasbourg, on the appointed day. Immediately before they opened, the
Court had held a preparatory meeting at which it had decided, inter
alia, to sever the case of Mr. Rubinat from that of Mr. Colozza.
There appeared before the Court:
- for the Government
Mr. G. Bosco, Minister Plenipotentiary, Diplomatic
Legal Service of the Ministry of
Foreign Affairs, Co-Agent,
Mr. A. Giarda, avvocato and professor at
Milan University, Counsel;
- for the Commission
Mr. J. Sampaio, Delegate;
- for the applicant
Mr. A. Miele, avvocato, Counsel.
The Court heard their addresses and their replies to its questions.
AS TO THE FACTS
I. The particular facts of the case
9. Mr. Giacinto Colozza was born in 1924 and died in 1983. He
was an Italian citizen and lived in Rome.
10. On 20 June 1972, the carabinieri reported the applicant to the
Rome public prosecutor's office for various alleged offences,
including fraud, committed before November 1971. They said that they
had not questioned the suspect because they had failed to contact him
at his last-known address. In fact, his flat, in via Longanesi, had
been closed and his furniture seized by the judicial authorities; the
manager of the building, who was also the administrator appointed by
the court in the attachment proceedings, was unaware of Mr. Colozza's
new address.
On 4 October 1973, the investigating judge issued a "judicial
notification" (comunicazione giudiziaria) intended to inform the
applicant of the opening of criminal proceedings against him. A
bailiff attempted to serve it on Mr. Colozza at the address - via
Fonteiana - shown in the Registrar-General's records, but without
success: he had moved - about ten years earlier according to the
carabinieri and five years earlier according to the police - and had
omitted to inform the City Hall of his change of residence as required
by law.
11. Meanwhile Mr. Colozza, when renewing his driving licence in
September 1973, had given, as his current address, that shown in the
Registrar-General's records (via Fonteiana).
12. On 14 November 1973, after unsuccessful searches at the latter
address, the investigating judge declared the accused untraceable
(irreperibile), appointed an official defence lawyer for him and
continued the investigations. Thereafter, in pursuance of Article 170
of the Code of Criminal Procedure (see paragraph 19 below), all the
documents which had to be served on the applicant were lodged in the
registry of the investigating judge, the defence counsel being
informed in each case.
On 12 November 1974 and 30 May and 3 June 1975, the investigating
judge issued three arrest warrants which were not executed because the
competent authorities still did not know where Mr. Colozza was
living. It should, however, be noted that the address indicated on
the warrants was via Longanesi. On each occasion, the carabinieri
drew up a report of fruitless searches (vane ricerche). Mr. Colozza
was thenceforth regarded as "latitante", that is as a person wilfully
evading the execution of a warrant issued by a court (see paragraph 20
below).
13. By a decision of 9 August 1975, the applicant was committed
for trial.
A first hearing was held by the Rome Regional Court on 6 May 1976.
Although he had been informed of the lodging of the summons to appear
(see paragraph 12 above), the accused's officially-appointed defence
counsel did not appear, with the result that the court had to appoint
a replacement and postponed the hearings until 26 November. On that
date, a new lawyer was officially assigned, because the one appointed
on 6 May did not appear either. The court adjourned the trial and
concluded it on 17 December 1976, after appointing, during the sitting
and again for the same reason, another official defence lawyer. It
sentenced Mr. Colozza to six years' imprisonment (reclusione) and a
fine (multa) of 600,000 Lire. The public prosecutor had called for
sentences of five years' imprisonment and a fine of 2,000,000 Lire and
the officially-appointed defence counsel had agreed with his
submissions.
The judgment was lodged in the registry on 29 December 1976 and a copy
was served on the lawyer. It became final on 16 January 1977, as he
had not entered an appeal.
14. On 20 May 1977, the public prosecutor's office issued an
arrest warrant. The applicant was arrested at his home in Rome,
31 via Pian Due Torri, on the following 24 September. On the next
day, he raised a "procedural objection" (incidente d'esecuzione) as
regards this warrant and at the same time filed a "late appeal"
(appello apparentemente tardivo; see paragraph 23 below). He
appointed a lawyer and instructed him to draft the grounds of appeal.
However, he submitted them himself on 24 December 1977 and lodged a
supplementary memorial on 25 July 1978. On 15 November and
28 December 1977, he appointed new lawyers.
15. On 29 April 1978, the Rome Regional Court dismissed the
"procedural objection" and ordered that the papers be sent to the Rome
Court of Appeal for a ruling on the "late appeal".
Mr. Colozza maintained that he had been wrongly declared "latitante"
and that the notifications of the summons to appear and of the extract
from the judgment rendered by default were therefore null and void.
He explained that, as he had received notice to quit from his landlord
at the end of 1971, he had left his flat in via Fonteiana and, before
finding a new one, had lived in a hotel. He pointed out that his new
address (via Pian Due Torri) was known to the police since,
on 12 March 1977, they had summoned him to the local police station
for questioning; the same applied both to the Rome public prosecutor's
office, which, on 7 October 1976 (that is to say, almost two months
before adoption of the judgment), had sent him a "judicial
notification" concerning other criminal proceedings, and to various
public authorities, which had served documents on him, using the
notification service of the Rome City Hall.
16. Mr. Colozza's appeal was examined together with an appeal
that had been entered by his co-accused. The Court of Appeal heard
Mr. Colozza both on the merits of the case and on the fact that he
had been treated as "latitante".
The public prosecutor attached to the Court of Appeal also submitted
that the judgment of 17 December 1976 should be set aside; in his
view, Mr. Colozza should not have been regarded as "latitante".
On 10 November 1978, the Court of Appeal confirmed the conviction of
the co-accused. As to Mr. Colozza, it held that his appeal was
inadmissible for failure to observe time-limits. It ruled that the
time-limit for filing the grounds of appeal - twenty days, under
Article 201 of the Code of Criminal Procedure - had begun to run
on 13 October 1977, the date on which the arrest warrant had been
served, whereas the memorial had not been submitted until
24 December 1977.
17. Mr. Colozza lodged an appeal on points of law but it was
dismissed by the Court of Cassation on 5 November 1979. It accepted
that the Court of Appeal had wrongly declared the "late appeal"
inadmissible for failure to file the grounds in time: it should first
have determined whether, as the appellant alleged, the first-instance
proceedings were void. However, the Court of Cassation concluded that
this was not so: it considered that Mr. Colozza had rightly been
declared first to be "irreperibile" and then to be "latitante". It
added that the Court of Appeal should have declared the appeal
inadmissible as out of time, since it had been lodged at a time when
the judgment under appeal had already become final.
Mr. Colozza, who had been in custody since 23 September 1977 to serve
his sentence, as well as other suspended sentences previously passed
on him, died in prison on 2 December 1983 (see paragraph 6 above).
II. Relevant domestic law
A. Notification
1. General principles concerning notification to an accused person
who is not in custody
18. The Code of Criminal Procedure lays down the methods for
notifying an accused person who is not in custody of the various
documents pertaining to the investigations and the trial.
When the first procedural step involving the presence of such an
accused is taken, the court, the public prosecutor's office or the
official of the criminal investigation department must ask the accused
to indicate the place where notifications should be made or to elect
an address for service (Article 171, first paragraph). If he does not
do so, Article 169 applies; this provides, inter alia, that if the
first notification cannot be made to the party concerned in person, it
is to be delivered, at his place of residence or of work, to a person
living with him or to the caretaker. If those two places are not
known, notification is to be left where the party concerned is living
temporarily or has an address, by delivery to one of the
above-mentioned persons.
2. Notification to an accused who is "irreperibile" or "latitante"
19. The Code of Criminal Procedure does not define the concept of
"irreperibile". Nevertheless, according to the relevant rules, it may
apply to any person on whom a document concerning criminal proceedings
opened against him has to be served and whom it has not been possible
to trace because his address was unknown. The mere establishment of
this fact - the question whether there has been a wilful evasion of
the investigations being irrelevant in this context - is enough for
this purpose. According to Article 170, the bailiff has to inform the
judge who ordered the notification. The latter, after directing that
further searches be conducted at the place of birth or last residence,
will then issue a decree (decreto) to the effect that notifications
shall be effected by being lodged in the registry of the court before
which proceedings are in progress. The defence lawyer must be
informed immediately whenever a document is so lodged; if the accused
has no lawyer, the court has to assign one to him officially.
20. This system of notification is also used if the accused is
"latitante" (Article 173).
According to the first paragraph of Article 268, any person wilfully
evading execution of, inter alia, an arrest warrant shall be regarded
as being "latitante". The third paragraph states that whenever
classification as "latitante" entails legal consequences, these are to
extend to the other proceedings instituted against the person in
question. If he does not have a lawyer of his own choosing, an
official appointment will be made.
The Court of Cassation has consistently held that an intention to
evade arrest is to be presumed where adequate searches by the criminal
investigation police have been unsuccessful. This presumption exists
even if the person in question, after moving and failing to make the
statutory declaration of change of residence, has not resorted to any
special subterfuges to avoid arrest (3rd Criminal Chamber,
12 March 1973, no. 559, Repertorio 1974, no. 3440; 6th Criminal
Chamber, 20 October 1971, no. 3195, Repertorio 1973, no. 4897;
Massimario delle decisioni penali, 1972, no. 1959). In its judgment
no. 98 of 2 June 1977, the Constitutional Court specified, however,
that the presumption can be rebutted and is thus not irrefutable.
The term "adequate searches" leaves the criminal investigation police
with a measure of discretion as to the steps to be taken; this
discretion is however limited, in that the person concerned must be
sought at the residence indicated in the arrest warrant (2nd Criminal
Chamber, 19 October 1978, no. 12698, massima no. 140224).
B. Trial by default (contumacia)
21. Although trial by "contumacia" (by default; Articles 497 to
501 of the Code of Criminal Procedure) is classified as a special form
of proceedings, the ordinary procedure is followed (Article 499,
first paragraph). Such a trial is held when the accused, after being
duly summoned, does not appear at the hearing and neither requests nor
agrees that it take place in his absence.
22. Under Italian law, an accused who fails to appear (contumace)
has the same rights as an accused who is present. He is, for example,
entitled to be defended by a lawyer - who will be officially assigned
to him by the court if he has not chosen one himself - and to lodge an
ordinary appeal or an appeal on points of law against the judgment
concerning him. The time-limit for entering such an appeal begins to
run only from the day on which he was notified of the decision by
means of service of an extract from the judgment. However, in the
case of a person who has also been declared to be "irreperibile" or
"latitante", time begins to run from the date of the lodging of the
judgment in the registry of the court that rendered it.
C. "Late appeal"
23. According to Italian case-law, individuals who have not
entered an appeal and who consider that the notification of the
judgment was irregular can lodge a "late appeal". The time-limits to
be observed are the same as for the ordinary appeal (three days for
giving notice of appeal and twenty days for submitting the grounds),
but both start to run from the date when the person in question had
knowledge of the judgment. Nevertheless, in the case of a person
regarded as "latitante" the court hearing the appeal can determine the
merits of the criminal charge only if it finds that there has been a
failure to comply with the rules governing declarations that an
accused is "latitante" or governing service on him of the documents in
the proceedings; in addition, it is for the person concerned to prove
that he was not seeking to evade justice.
D. Defence of the accused; related rules as to nullity
24. Article 185 of the Code of Criminal Procedure provides, inter
alia, that proceedings shall be null and void if the rules on the
participation, assistance and representation of the accused have not
been observed. Failure to serve a summons to appear at the hearing
and the absence, at that stage, of the accused's defence counsel
constitute grounds of incurable nullity, of which the court must take
notice of its own motion at any point in the proceedings.
PROCEEDINGS BEFORE THE COMMISSION
25. Mr. Colozza applied to the Commission on 5 May 1980. He
alleged that there had been several violations of Article 6 (art. 6)
of the Convention. In particular, he complained that he was at no
time aware of the proceedings instituted against him and that he had
therefore not been able to defend himself in a practical and effective
manner. He also relied on Article 13 (art. 13), maintaining that he
had had no "effective remedy" against the judgment of the Rome
Regional Court.
On 9 July 1982, the Commission, after ordering the joinder of the
application (no. 9024/80) with that of Mr. Rubinat (no. 9317/81)
(see paragraphs 1 and 8 above), declared it admissible as regards
Article 6 (art. 6) and inadmissible as regards the remainder. In its
report of 5 May 1983 (Article 31) (art. 31), the Commission expressed
the unanimous opinion that Article 6 para. 1 (art. 6-1) had been
violated. The full text of the Commission's opinion and of the
separate opinion contained in the report is reproduced as an annex to
the present judgment.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
26. At the hearings before the Court, the applicant's lawyer
contended that there had been a violation of paragraph 3 (a) of
Article 6 (art. 6-3-a). The Commission, for its part, considered the
case under paragraph 1 (art. 6-1); the Government denied that there
had been any breach at all.
The Court recalls that the guarantees contained in paragraph 3 of
Article 6 (art. 6-3) are constituent elements, amongst others, of the
general notion of a fair trial (see the Goddi judgment of 9 April
1984, Series A no. 76, p. 11, para. 28). In the circumstances of the
case, the Court, whilst also having regard to those guarantees,
considers that it should examine the complaint under paragraph 1,
which provides
"In the determination of ... any criminal charge against him, everyone
is entitled to a fair ... hearing ... by [a] ... tribunal ... ."
The basic question is whether the combined recourse to the procedure
for notifying persons who are untraceable (irreperibile) and to the
procedure for holding a trial by default - in the form applicable to
"latitanti" (see paragraph 20 above) - deprived Mr. Colozza of the
right thus guaranteed.
27. Although this is not expressly mentioned in paragraph 1 of
Article 6 (art. 6-1), the object and purpose of the Article taken as a
whole show that a person "charged with a criminal offence" is entitled
to take part in the hearing. Moreover, sub-paragraphs (c), (d) and
(e) of paragraph 3 (art. 6-3-c, art. 6-3-d, art. 6-3-e) guarantee to
"everyone charged with a criminal offence" the right "to defend
himself in person", "to examine or have examined witnesses" and "to
have the free assistance of an interpreter if he cannot understand or
speak the language used in court", and it is difficult to see how he
could exercise these rights without being present.
28. In the instant case, the Court does not have to determine
whether and under what conditions an accused can waive exercise of his
right to appear at the hearing since in any event, according to the
Court's established case-law, waiver of the exercise of a right
guaranteed by the Convention must be established in an unequivocal
manner (see the Neumeister judgment of 7 May 1974, Series A no. 17,
p. 16, para. 36; the Le Compte, Van Leuven and De Meyere judgment of
23 June 1981, Series A no. 43, pp. 25-26, para. 59; the Albert and
Le Compte judgment of 10 February 1983, Series A no. 58, p. 19,
para. 35).
In fact, the Court is not here concerned with an accused who had been
notified in person and who, having thus been made aware of the reasons
for the charge, had expressly waived exercise of his right to appear
and to defend himself. The Italian authorities, relying on no more
than a presumption (see paragraphs 12 and 20 above), inferred from the
status of "latitante" which they attributed to Mr. Colozza that there
had been such a waiver.
In the Court's view, this presumption did not provide a sufficient
basis. Examination of the facts does not disclose that the applicant
had any inkling of the opening of criminal proceedings against him;
he was merely deemed to be aware of them by reason of the
notifications lodged initially in the registry of the investigating
judge and subsequently in the registry of the court. In addition, the
attempts made to trace him were inadequate: they were confined to the
flat where he had been sought in vain in 1972 (via Longanesi) and to
the address shown in the Registrar-General's records (via Fonteiana),
yet it was known that he was no longer living there (see paragraphs 10
and 12 above). The Court here attaches particular importance to the
fact that certain services of the Rome public prosecutor's office and
of the Rome police had succeeded, in the context of other criminal
proceedings, in obtaining Mr. Colozza's new address (see paragraph 15
above); it was thus possible to locate him even though - as the
Government mentioned by way of justification - no data-bank was
available. It is difficult to reconcile the situation found by the
Court with the diligence which the Contracting States must exercise in
order to ensure that the rights guaranteed by Article 6 (art. 6) are
enjoyed in an effective manner (see, mutatis mutandis, the Artico
judgment of 13 May 1980, Series A no. 37, p. 18, para. 37).
In conclusion, the material before the Court does not disclose that
Mr. Colozza waived exercise of his right to appear and to defend
himself or that he was seeking to evade justice. It is therefore not
necessary to decide whether a person accused of a criminal offence who
does actually abscond thereby forfeits the benefit of the rights in
question.
29. According to the Government, the right to take part in person
in the hearing does not have the absolute character which is
apparently attributed to it by the Commission in its report; it has
to be reconciled, through the striking of a "reasonable balance", with
the public interest and notably the interests of justice.
It is not the Court's function to elaborate a general theory in this
area (see, mutatis mutandis, the Deweer judgment of 27 February 1980,
Series A no. 35, p. 25, para. 49). As was pointed out by the
Government, the impossibility of holding a trial by default may
paralyse the conduct of criminal proceedings, in that it may lead, for
example, to dispersal of the evidence, expiry of the time-limit for
prosecution or a miscarriage of justice. However, in the
circumstances of the case, this fact does not appear to the Court to
be of such a nature as to justify a complete and irreparable loss of
the entitlement to take part in the hearing. When domestic law
permits a trial to be held notwithstanding the absence of a person
"charged with a criminal offence" who is in Mr. Colozza's position,
that person should, once he becomes aware of the proceedings, be able
to obtain, from a court which has heard him, a fresh determination of
the merits of the charge.
30. The Contracting States enjoy a wide discretion as regards the
choice of the means calculated to ensure that their legal systems are
in compliance with the requirements of Article 6 para. 1 (art. 6-1) in
this field. The Court's task is not to indicate those means to the
States, but to determine whether the result called for by the
Convention has been achieved (see, mutatis mutandis, the De Cubber
judgment of 26 October 1984, Series A no. 86, p. 20, para. 35). For
this to be so, the resources available under domestic law must be
shown to be effective and a person "charged with a criminal offence"
who is in a situation like that of Mr. Colozza must not be left with
the burden of proving that he was not seeking to evade justice or that
his absence was due to force majeure.
31. According to Italian case-law, the applicant was entitled to
lodge a "late appeal" and, in fact, he did so (see paragraphs 14 and
23 above).
This remedy does not satisfy the criteria mentioned above. The court
hearing the appeal can determine the merits (in French: "bien-fondé")
of the criminal charge, as regards the factual and legal issues, only
if it finds that the competent authorities have failed to comply with
the rules governing declarations that an accused is "latitante" or
governing service on him of the documents in the proceedings; in
addition, it is for the person concerned to prove that he was not
seeking to evade justice (see paragraph 23 above).
In the present case, neither the Court of Appeal nor the Court of
Cassation redressed the alleged violation: the former confined itself
to holding the appeal inadmissible and the latter concluded that the
declaration of "latitanza" was legitimate (see paragraphs 16 and 17
above).
32. Thus, Mr. Colozza's case was at the end of the day never
heard, in his presence, by a "tribunal" which was competent to
determine all the aspects of the matter.
According to the Government, however, the applicant himself was
responsible for this state of affairs since he neither informed the
City Hall of his change of address nor, once he was treated as
"latitante", took the initiative of supplying an address for the
service of documents or of giving himself up.
The Court does not see how Mr. Colozza could have taken the second
or the third course; it is not established that he was in any way
aware of the proceedings instituted against him.
The first alleged shortcoming concerns nothing more than a regulatory
offence (illecito amministrativo); the consequences which the Italian
judicial authorities attributed to it are manifestly disproportionate,
having regard to the prominent place which the right to a fair trial
holds in a democratic society within the meaning of the Convention
(see, mutatis mutandis, the above-mentioned De Cubber judgment,
Series A no. 86, p. 16, para. 30 in fine).
33. There was therefore a breach of the requirements of
Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
34. Article 50 (art. 50) of the Convention reads as follows:
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
35. The applicant's widow claimed just satisfaction, but left the
amount thereof to the Court's discretion. The Commission indicated
its agreement. The Government, whilst contesting the existence of a
violation, took the same position; however, they raised the question
whether Mrs. Colozza could validly replace her husband in the
proceedings.
The question is thus ready for decision (Rule 53 para. 1 of the Rules
of Court).
36. Mrs. Colozza based her claim on the fact that her husband
served a large part - about six years - of the sentence imposed on
him. She maintained that this had occasioned, both for him and for
her, physical and mental suffering and also financial loss.
37. The Government pointed out that the period which Mr. Colozza
spent in prison was the result not only of the sentence passed
on 17 December 1976, but also of other sentences which were
unconnected with the present proceedings. They also considered that
his conduct should not be overlooked.
38. The Court notes that in the present case an award of just
satisfaction can only be based on the fact that the applicant did not
have the benefit of the guarantees of Article 6 (art. 6). Whilst the
Court cannot speculate as to the outcome of the trial had the position
been otherwise, it does not find it unreasonable to regard Mr. Colozza
as having suffered a loss of real opportunities (see, mutatis
mutandis, the Goddi judgment of 9 April 1984, Series A no. 76,
pp. 13-14, para. 35). To this has to be added the non-pecuniary
damage undoubtedly suffered by him and by his widow.
These elements of damage do not lend themselves to a process of
calculation. Taking them on an equitable basis, as is required by
Article 50 (art. 50), the Court awards Mrs. Colozza, who must be
recognised as having the status of "injured party" (see, mutatis
mutandis, the above-mentioned Deweer judgment, Series A no. 35,
pp. 19-20, para. 37, and p. 32, para. 60, and, a contrario, the
X v. the United Kingdom judgment of 18 October 1982, Series A no. 55,
p. 16, para. 19), an indemnity of 6,000,000 Lire.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1);
2. Holds that the respondent State is to pay to Mrs. Colozza six
million (6,000,000) Lire by way of just satisfaction.
Done in English and in French, and delivered at a public hearing at
the Human Rights Building, Strasbourg, on 12 February 1985.
Signed: Gérard WIARDA
President
Signed: Marc-André EISSEN
Registrar