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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> F.C.B. v. ITALY - 12151/86 [1991] ECHR 40 (28 August 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/40.html
Cite as: (1992) 14 EHRR 909, 14 EHRR 909, [1991] ECHR 40
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In the case of F.C.B. v. Italy*,
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 R. Ryssdal, President,
Mrs D. Bindschedler-Robert,
Mr F. Gölcüklü,
Mr F. Matscher,
Mr J. Pinheiro Farinha,
Mr B. Walsh,
Mr C. Russo,
Mr R. Bernhardt,
Mr A. Spielmann,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 21 March and 26 June 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 40/1990/231/297. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since
its creation and on the list of the corresponding originating
applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came
into force on 1 January 1990.
*** The amendments to the Rules of Court which came into force
on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 11 July 1990,
within the three-month period laid down by Article 32 para. 1 and
Article 47 (art. 32-1, art. 47) of the Convention. It originated
in an application (no. 12151/86) against Italy lodged with the
Commission under Article 25 (art. 25) by a citizen of that State,
Mr F.C.B., on 9 May 1986. The applicant requested the Court not
to reveal his identity.
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
object of the request was to obtain a decision as to whether the
facts of the case disclosed a breach by the respondent State of
its obligations under Article 6 paras. 1 and 3 (c) (art. 6-1,
art. 6-3-c).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, the applicant stated
that he wished to take part in the proceedings and designated the
lawyer who would represent him (Rule 30). On 19 September 1990
the President authorised him to use the Italian language
(Rule 27 para. 3).
3. The Chamber to be constituted included ex officio
Mr C. Russo, the elected judge of Italian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 27 August 1990,
in the presence of the Registrar, the President drew by
lot the names of the other seven members, namely
Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr F. Matscher,
Mr J. Pinheiro Farinha, Mr B. Walsh, Mr R. Bernhardt and
Mr A. Spielmann (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Italian Government ("the Government"), the Delegate of the
Commission and the lawyer for the applicant on the need for a
written procedure (Rule 37 para. 1). In accordance with the
orders made in consequence, the Registrar received the
Government's memorial on 15 January 1991 and the applicant's
memorial on 21 January. In a letter received on 14 March the
Secretary to the Commission informed him that the Delegate would
submit his observations at the hearing.
5. Having consulted, through the Registrar, those who would
be appearing before the Court, the President directed
on 22 February that the hearing should open on 18 March
(Rule 38).
6. On 7 March the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
instructions of the President.
7. The hearing took place in public in the Human Rights
Building, Strasbourg, on the appointed day. The Court had held
a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, on secondment to
the Diplomatic Legal Service, Ministry
of Foreign Affairs, Co-Agent;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicant
Mr P. Barone, avvocato, Counsel.
The Court heard their addresses and their replies to its
questions.
8. On 3 June the applicant produced detailed figures for his
claim for just satisfaction, but the Court rejected them as out
of time.
AS TO THE FACTS
I. The circumstances of the case
9. On 20 September 1972, in the course of an armed robbery
in the province of Bergamo, two masked criminals killed one
person and seriously injured another; they then fled in a car
driven by an accomplice.
Among the suspects, who were swiftly identified, was the
applicant.
A. The trial
10. Mr F.C.B. was arrested in Switzerland on 9 November 1973
and extradited to Italy on 19 February 1974. He was charged with
armed robbery, murder and attempted murder, these crimes being
aggravated by the fact that he had committed them while wilfully
evading arrest under other warrants.
11. On 10 November 1977 the Bergamo Assize Court found him
and his four co-defendants guilty and sentenced him inter alia
to twenty-four years' imprisonment.
12. The applicant and three others who had been found guilty
appealed, and on 26 March 1980 the Brescia Assize Court of Appeal
acquitted them for lack of evidence. Mr F.C.B. was released on
the following day; in accordance with Article 171 of the Code of
Criminal Procedure (see paragraph 25 below), he indicated his
address.
13. The Principal Public Prosecutor and three other parties,
including the applicant, appealed on points of law. The
prosecution's notice of appeal was served on Mr F.C.B. personally
on 5 April 1980 at the address he had given, which was also that
of his mother.
14. On 13 April 1983 the Court of Cassation dismissed the
applicant's appeal, allowed the prosecution's appeal, and
remitted the case to the Milan Assize Court of Appeal.
B. The applicant's conduct after his release on 27 March 1980
15. Mr F.C.B. had in the meantime entered the Federal
Republic of Germany on 24 April 1980. He settled at Constance
and was granted a residence permit there on 29 September 1980.
He claims that he informed the Italian Consulate in Freiburg of
his new address, in order for it to be notified to the Italian
authorities for "entry in the civil status register". He did
not, however, send the authorities an amended version of his
declaration of 27 March 1980 (see paragraph 12 above).
16. The applicant was arrested in Brussels on
19 December 1982 under a warrant issued in the Netherlands in
connection with proceedings relating to the abduction of a
Netherlands woman.
According to Mr F.C.B., after he had been extradited to the
Netherlands the Dutch authorities obtained a copy of his criminal
record; furthermore, the judge in charge of the case arranged for
his Italian colleagues in Milan and Bergamo to co-operate in
investigations in Italy and asked the Milan Chief Public
Prosecutor's Office to have searches of the dwellings of the
applicant, his sister and his sister-in-law carried out. The
Government did not contest this point, merely stating that they
had no detailed information about it.
Mr F.C.B. maintained that he was held in solitary confinement
from 19 December 1982 to 19 February 1985, when his conviction
by the 's-Hertogenbosch Court of Appeal became final, and was
thus subject to certain restrictions - which were, however,
eventually relaxed - on correspondence, visits and contacts with
other detainees.
C. The retrial and the fresh appeal
17. On 25 November 1983 the President of the Milan Assize
Court of Appeal attempted to serve a summons to appear before
that court on the applicant at the address given by him on his
release, but neither the applicant nor his mother lived there any
more.
On 15 December 1983 the summons was delivered to Mr F.C.B.'s
mother, whose new address had been found out in the meantime.
The applicant's lawyer had also been informed on 23 October 1983
of the hearing date.
18. The trial opened on 9 April 1984 in Mr F.C.B.'s absence.
His counsel informed the court that, according to close relatives
of his client, the latter was in custody in Maastricht; he added,
however, that he was unable to produce documentary evidence to
this effect. The prosecution submitted that there was no
objective evidence to show that Mr F.C.B. was in custody and
invited the court to try him in absentia as unlawfully absent
(contumace). The court decided to do this, but counsel for one
of the co-defendants asked it to verify the information that
Mr F.C.B. was unable to attend the trial, as the applicant's
presence could prove to be of importance for his client. That
client and another co-defendant confirmed that Mr F.C.B. was in
prison in the Netherlands; the one had learnt of it from the
newspapers and the other had received a letter from the applicant
sent from Maastricht prison.
19. The prosecution for their part repeated their
submissions. After deliberating in private, the Assize Court of
Appeal confirmed its declaration that Mr F.C.B. was unlawfully
absent, as he had not provided proof that he was unable to
attend, despite having been notified in good time of the start
of the trial.
On 10 April 1984 the court sentenced him to twenty-four years'
imprisonment and issued a warrant for his arrest.
20. On 26 April Mr F.C.B.'s Dutch lawyer sent his Italian
colleague copies of documents (two summonses to appear before the
Netherlands courts) showing that his client was in custody.
Translations were given to the court on 26 May.
21. The applicant's lawyer appealed on points of law to the
Court of Cassation; his grounds of appeal were filed in
February 1985. He submitted that the Assize Court of Appeal had
been wrong in declaring Mr F.C.B. unlawfully absent and
questioned the correctness in law of the judgment. On the first
point he argued that the decision itself and the subsequent
proceedings were null and void, as it had been impossible for his
client to attend the hearing. He said that it was only out of
excessive regard for formal propriety that the Assize Court of
Appeal had declined to rule that the applicant was unable to
appear, notwithstanding several concurring statements testifying
to the fact.
22. The Court of Cassation dismissed the appeal
on 13 November 1985.
It found, firstly, that the appeal court had been right to try
Mr F.C.B. as unlawfully absent, as there was no proof that he was
unable to attend. The documents produced on 26 May 1984 (see
paragraph 20 above) had been offered in evidence only after
judgment had been given and therefore had no probative value.
With greater diligence the defence could have produced them
before the hearing. It could be seen from the statement of
appeal that the applicant would have had time to do this, as he
had been in custody in the Netherlands well before the summons
to appear was served. The Court of Cassation held that it was
for the Assize Court of Appeal to assess the alleged inability
to attend, and that that court had given proper reasons for its
decision.
D. The refusal to extradite the applicant to Italy
23. On 5 September 1984 the Italian authorities had requested
Mr F.C.B.'s extradition for the purposes of the judicial
investigation concerning him. On 17 June 1985, however, the
Maastricht Regional Court dismissed the request as inadmissible,
on the grounds that the Milan Assize Court of Appeal had already
given a judgment on the merits on 10 April 1984 (see
paragraph 19 above). The court added that it would consider the
matter again in the event of the judicial investigation being
reopened as a result of a retrial being ordered by the Court of
Cassation or for some other reason.
24. The Netherlands agreed to extradite Mr F.C.B. to Belgium
and he is currently in custody there.
According to the information given to the Court by counsel for
the applicant, the applicant will have to return to the
Netherlands to serve one year's imprisonment there, and if the
Italian authorities succeed in obtaining his extradition, he will
then serve in Italy six years and six months of the prison
sentence imposed by the Milan Assize Court of Appeal.
II. The relevant domestic law
25. In the Foti and Others judgment of 10 December 1982, the
Colozza judgment of 12 February 1985 and the Brozicek judgment
of 19 December 1989 (Series A no. 56, p. 12, paras. 33-36;
no. 89, p. 11, para. 18, and p. 12, paras. 21-22; no. 167, p. 13,
para. 26) the Court gave a brief description of the Italian
legislation then in force as regards notifications and trials in
absentia (contumacia).
As to notifications to an accused who has been released but in
whose case a final judgment has not yet been given, the first and
fourth paragraphs of Article 171 of the Code of Criminal
Procedure provide as follows (translation from Italian):
"An accused held in custody who has to be released for a reason
other than a final acquittal ... must at the time of release
declare or elect an address [for service] by lodging a document
with the director of the prison. The director shall enter any
declaration he has received in the register specified in
Article 80 and shall immediately notify it to the judicial
authority which ordered the release ... .
Any change relating to the address declared or elected must be
communicated by the suspect or accused to the authority in charge
of the case, as provided for in the first paragraph.
Notifications made to the address previously declared or elected
shall be valid until such communication has been received."
PROCEEDINGS BEFORE THE COMMISSION
26. In his application of 9 May 1986 to the Commission
(no. 12151/86) Mr F.C.B. complained of a violation of the rights
of the defence, on the ground that as he was wrongly held to be
unlawfully absent, he did not have a fair trial. He relied on
Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the
Convention.
27. The Commission declared the application admissible
on 16 March 1989. In its report of 17 May 1990 (made under
Article 31) (art. 31) it expressed the unanimous opinion that
there had been a violation of Article 6 paras. 1 and 3 (c)
(art. 6-1, art. 6-3-c). The full text of the Commission's
opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar. For practical reasons this annex will
appear only with the printed version of the judgment
(volume 208-B of Series A of the Publications of the Court), but
a copy of the Commission's report is obtainable from the
registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF PARAGRAPH 1 IN CONJUNCTION WITH
PARAGRAPH 3 (c) OF ARTICLE 6 (art. 6-1, art. 6-3-c)
28. Mr F.C.B. complained of the fact that the Milan Assize
Court of Appeal had tried him in his absence. He alleged a
violation of Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c)
of the Convention, which read as follows:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a]
tribunal ...
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
(c) to defend himself in person or through legal assistance of
his own choosing ... ;
... ."
The Commission agreed with this submission, but it was contested
by the Government.
29. Unlike the Goddi, Colozza and Brozicek cases (judgments
of 9 April 1984, Series A no. 76, 12 February 1985, Series A
no. 89, and 19 December 1989, Series A no. 167), the present case
relates only to the opportunity for a person charged with a
criminal offence to attend his trial alongside his counsel.
As that is the fundamental question and as the requirements of
paragraph 3 of Article 6 (art. 6-3) are to be seen as particular
aspects of the right to a fair trial guaranteed by paragraph 1
(art. 6-1), the Court will examine the complaint from the point
of view of these two provisions in conjunction (see, as the most
recent authority, the Isgrò judgment of 19 February 1991,
Series A no. 194-A, p. 12, para. 31).
30. The applicant claimed that he did not know when his trial
before the Milan Assize Court of Appeal would take place, as he
was in solitary confinement while in custody in the Netherlands
(see paragraph 16 above). He also submitted that the attempted
notification on 25 November 1983 and the service on
15 December 1983 were null and void (see paragraph 17 above).
31. The Government, on the other hand, were convinced that
Mr F.C.B. had been made aware of the trial date by his lawyer and
his family, who had been notified on 23 October and
15 December 1983 respectively (see paragraph 17 above).
32. The Commission thought it unlikely that the applicant was
unaware of when the trial would open, as he was certainly in
contact with a co-defendant, his family and his lawyer. In
particular, it was difficult to see how else his lawyer could
within two weeks have submitted written evidence of his client's
inability to attend his trial (see paragraph 20 above). The
Commission expressed the opinion, however, that such knowledge
was no substitute for personal service, only the latter being
conclusive.
33. The Court points out firstly that Mr F.C.B., who was not
present at the hearing before the Milan Assize Court of Appeal
despite the fact that he was charged with very serious crimes
(see paragraph 10 above), had not expressed the wish to waive
attendance. Moreover, that court had learnt from concurring
sources (Mr F.C.B.'s counsel and two co-defendants) that
apparently he was in custody in the Netherlands. Yet it did not
adjourn the trial, nor did it investigate further to see whether
the applicant had indeed consented to not being present; it
merely stated that it had not been provided with proof that he
was unable to attend.
It must also be borne in mind that the Dutch authorities had
requested the co-operation of the Italian authorities, thereby
informing them that the applicant was in prison in the
Netherlands (see paragraph 16 above), but the Italian authorities
did not draw the necessary inferences as regards the proceedings
pending against Mr F.C.B. in Milan. That behaviour was scarcely
compatible 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 the
Colozza judgment already cited, Series A no. 89, p. 15,
para. 28).
The Court considers it unnecessary to decide whether, as the
Government maintained, indirect knowledge of the trial date
sufficed to allow the applicant to participate in the trial, a
right whose existence is, according to the Court's case-law,
shown by the object and purpose of Article 6 (art. 6) taken as
a whole (see, inter alia, the Brozicek judgment cited above,
Series A no. 167, p. 19, para. 45). Even if such a method does
comply with the requirements of this provision, it does not
appear that Mr F.C.B., whether expressly or at least in an
unequivocal manner, intended to waive his right to appear at the
trial and defend himself (see inter alia the above-mentioned
Colozza judgment, Series A no. 89, p. 14, para. 28).
34. In the Government's opinion the applicant was responsible
for the position, in that he failed to take the necessary steps,
either before or during the hearing on 9 April 1984, to prove
that he was indeed unable to attend and in that he omitted to
inform the appropriate authorities of his change of address.
They suggested that this was an attempt by him to delay a verdict
which was bound to be adverse.
35. The Court considers these two criticisms to be unfounded.
As to the first point, it has not been shown that Mr F.C.B. was
aware of the date of the trial.
As to the second point, the applicant's conduct may give rise to
certain doubts but the consequences which the Italian judicial
authorities attributed to it are - in the light of the
information available to the Milan Assize Court of Appeal
on 9 April 1984 - 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 the
above-mentioned Colozza judgment, Series A no. 89, p. 16,
para. 32).
In the instant case, the Court therefore does not have to
determine whether and under what conditions an accused can waive
exercise of his right to appear at the hearing (see the same
judgment, p. 14, para. 28).
36. In sum, there has been a violation of paragraph 1 in
conjunction with paragraph 3 (c) of Article 6 (art. 6-1,
art. 6-3-c).
II. APPLICATION OF ARTICLE 50 (art. 50)
37. Under Article 50 (art. 50),
"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."
A. Damage
38. Mr F.C.B. sought compensation for damage. He stated that
he wished to pass the money on to the Italian Association for
Cancer Research, but failed to quantify his claim in due time
(see paragraph 8 above).
The Court considers that in the present case the finding that
there has been a violation of Article 6 (art. 6) in itself
affords sufficient just satisfaction.
B. Costs and expenses
39. The applicant claimed a total of 89,500,000 Italian lire
in respect of lawyer's fees and costs relating to the domestic
and European proceedings.
The Court sees no causal link between the violation found and the
costs incurred before the domestic courts. Making an assessment
on an equitable basis, and in the light of the evidence before
it and its case-law on the point, it awards Mr F.C.B.
5,000,000 lire in respect of costs and expenses incurred before
the Convention organs.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6
paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention;
2. Holds that the respondent State is to pay to Mr F.C.B.
5,000,000 (five million) Italian lire in respect of costs and
expenses;
3. Dismisses the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public hearing
at the Human Rights Building, Strasbourg, on 28 August 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar