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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> T. v. ITALY - 14104/88 [1992] ECHR 65 (12 October 1992)
URL: http://www.bailii.org/eu/cases/ECHR/1992/65.html
Cite as: [1992] ECHR 65
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In the case of T. 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,
Mr B. Walsh,
Mr C. Russo,
Mr J. De Meyer,
Mr I. Foighel,
Mr R. Pekkanen,
Mr A.N. Loizou,
Mr F. Bigi,
Mr A.B. Baka,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 25 May and
24 September 1992,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 80/1991/332/405. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 13 September 1991,
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. 14104/88) against the Italian Republic lodged
with the Commission under Article 25 (art. 25) by an Italian
national, Mr T., on 1 April 1988.
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 para. 1 (art. 6-1).
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). The President of the Court gave
him leave to use the Italian language (Rule 27 para. 3) and decided,
of his own motion, that, in view of the circumstances of the case,
the applicant's identity would not be disclosed.
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 28 September 1991, in the presence
of the Registrar, the President drew by lot the names of the other
seven members, namely Mr B. Walsh, Mr J. De Meyer, Mr I. Foighel,
Mr R. Pekkanen, Mr A.N. Loizou, Mr F. Bigi and Mr A.B. Baka
(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 applicant's lawyer on the organisation of the
procedure (Rules 37 para. 1 and 38). Pursuant to the order made in
consequence, the Registrar received the applicant's memorial on
25 February 1992, the Government's memorial on 2 April and the
Delegate's written observations on 20 May.
5. On 26 February the Chamber had decided to dispense with a
hearing, having found that the conditions for such a derogation from
the usual procedure were satisfied (Rules 26 and 38).
6. On 16 April the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
7. On 5 May the Government lodged their observations on the
applicant's claims for just satisfaction (Article 50 of the
Convention) (art. 50); the latter submitted a statement of his costs
and expenses on 1 June.
AS TO THE FACTS
I. The particular circumstances of the case
8. On 19 May 1982 Mr T.'s minor daughter, who was at the time
aged fourteen, lodged a complaint with the Genoa public prosecutor's
office, which opened an investigation concerning T. in connection
with an alleged rape. On 15 February 1983 it sent to him in Jeddah
(Saudi Arabia) a "judicial notification" advising him that
proceedings had been instituted and inviting him to provide an
address for service in Italy.
The applicant claims that he did not receive the
notification in question because on 13 February he had left Jeddah,
where he had worked for a time, for Khartoum (Sudan). He had,
moreover, visited the Italian Embassy there to report his change of
address.
9. On 26 November 1983 the investigating judge declared the
applicant untraceable (irreperibile) and designated a lawyer to act
for him. Thereafter all the documents which were to be notified to
the applicant were lodged with the registry, his lawyer being
informed thereof on each occasion.
10. On 13 December 1983 the investigating judge issued a
warrant for Mr T.'s arrest, which was not executed as his
whereabouts were unknown. In a report of 10 January 1984 the police
noted that the applicant did not live at the place indicated.
11. After the investigating judge had committed the applicant
for trial, the President of the Genoa District Court instructed the
police to undertake new inquiries. On 25 September 1984 they drew
up a report stating that their inquiries had proved unsuccessful;
they advised the judge that, according to the information which they
had obtained, the accused had found employment in the Sudan. The
President in his turn declared Mr T. untraceable.
12. On 9 October 1984 the Genoa District Court convicted Mr T.
in absentia and sentenced him to seven years' imprisonment, to be
stripped of his civic rights and to accessory penalties.
13. As the officially-appointed lawyer had appealed, the police
made further attempts to find Mr T., but to no avail (reports of
20 March and 7 July 1986), with the result that he was again
declared untraceable. On 1 October 1986 the Genoa Court of Appeal
upheld the contested judgment. The decision was notified to the
applicant in the manner provided for in Article 500 of the Code of
Criminal Procedure in force at the material time (see paragraph 21
below) because according to a police report of 7 November 1986 the
applicant was still untraceable. No appeal was filed in the Court
of Cassation.
14. On 4 March 1987 the Genoa public prosecutor's office issued
a warrant for Mr T.'s arrest. On 20 August he was arrested in
Copenhagen, on the premises of the Italian Embassy; he was
extradited on 29 October. On his arrival in his country he received
notification of his conviction and sentence and on 3 November 1987
the arrest warrant of 4 March was served on him.
15. On 5 November he lodged an objection to the execution of
the warrant (incidente d'esecuzione). He complained that he had
been convicted without being able to defend himself, despite the
fact that the competent authorities had known his address.
The Genoa District Court dismissed his objection on
17 December. It considered that the applicant had been duly
informed of the proceedings against him and that he had, in any
case, been aware of them; this was shown in particular by a letter
he had written to his wife on 30 September 1983.
The applicant filed an appeal on points of law, which the
Genoa District Court found inadmissible on 10 March 1988 on the
ground that no submissions had been lodged in support of it. Mr T.
maintains that he was not given legal assistance to formulate such
submissions.
Following a second appeal on points of law the Court of
Cassation confirmed the finding of inadmissibility on 20 May 1988.
It added that Mr T. could no longer, at the stage of the execution
of a judgment which had since become final, raise complaints
relating to the conduct of the proceedings.
16. At paragraphs 27 and 28 of its report, the Commission made
the following findings of fact:
"27. The applicant acknowledges that he was indirectly
aware of the proceedings against him because his wife had
informed him in June 1982 that his daughter was pregnant
and had accused him of rape.
Moreover, on 21 June 1982 he had written to the
judge dealing with the case to contest the version of the
facts given in the complaint ...
28. In addition, the applicant had explained his
behaviour to his wife in a letter he sent her on
21 May 1983. That letter, bearing his address, had been
added to the criminal file. He states that he wrote
regularly to his wife, to whom he also sent money, and to
his mother; [...] both of them knew his address. Lastly,
he points out that his passport had been renewed on
8 February 1984 in Khartoum, and then again in 1987, also
in Khartoum, implying a favourable opinion from the Italian
Embassy in Saudi Arabia and the prefecture in Genoa. He
was therefore not untraceable."
17. Before the Commission Mr T. had claimed that he had tried
on several occasions to leave the Sudan between 15 February 1984 and
17 July 1987, but that the Sudanese authorities had prevented him
from doing so.
18. He completed his sentence in 1991.
II. The relevant domestic law
A. Judicial notification
19. At the material time a judicial notification was the
document by which the judicial authorities informed the person
suspected of having committed an offence that an investigation had
been opened and invited him to appoint a defence lawyer of his
choice and to provide an address for service. It had to specify the
legal provisions infringed and the date of the alleged offence.
20. The investigating judge, in the event of a "formal"
investigation, or the public prosecutor, where the investigation was
"summary", had to send the notification at the very beginning of
their investigation (Articles 304 and 390 of the Code of Criminal
Procedure).
The notification had to be sent by registered letter
requiring acknowledgment of receipt. If the letter was not
delivered because the addressee was untraceable (irreperibile), a
bailiff had to serve the notification in accordance with the normal
procedure (Articles 168 to 175 of the Code of Criminal Procedure).
B. Notifications and trial in absentia (contumacia)
21. In its judgments in Foti and Others v. Italy of 10 December
1982 (Series A no. 56, p. 12, paras. 33-36), Colozza v. Italy of
12 February 1985 (Series A no. 89, p. 11, paras. 18-19, and
pp. 12-13, paras. 21-23) and Brozicek v. Italy of 19 December 1989
(Series A no. 167, pp. 13-14, para. 26), the Court gave a brief
description of the Italian legislation then in force as regards
notification to a person or an accused who was "untraceable" and
trial in absentia (contumacia).
In the present case it is necessary to cite Article 177 bis
of the former Code of Criminal Procedure (replaced with effect from
24 October 1989), which provided as follows:
"Where there is precise information in the documents in
the proceedings as to the place where the accused resides
abroad, the public prosecutor or magistrate's court
(pretore) shall send him by registered letter notification
of the proceedings against him with an invitation to
declare or otherwise give notice of an address for service
in the place where the proceedings are conducted. This
formality shall neither suspend nor delay the proceedings.
Where the accused's address abroad is unknown or where he
has not declared or otherwise given notice of an address
for service or if the information provided by him is
insufficient or inadequate, the judge or the public
prosecutor shall make the order (decreto) provided for in
Article 170.
The above provisions shall not apply where the issue of
an arrest warrant is mandatory."
The second sub-paragraph of Article 170 stated as follows:
"The judge or the public prosecutor ... shall take a
decision appointing a defence lawyer to act for the accused
where he does not yet have one in the place where the
proceedings are conducted and ordering that notification
which has proved impossible to carry out, or any future
notification, be effected by means of lodging the relevant
documents with the registry of the judicial organ before
which the proceedings are pending. The defence lawyer
shall be informed without delay when any such document is
so lodged."
It is also necessary to reproduce the text of the following
two Articles:
Article 500
"In the case of in absentia proceedings, an extract of
the judgment shall be notified to the accused who may lodge
against it any appeal that would have been open to him in
respect of a judgment delivered in adversarial proceedings,
subject to the provisions of the third paragraph of
Article 199."
Article 199
"...
For the judgments referred to in Article 500, the period
within which the accused may appeal shall begin to run from
the notification of the decision or judgment.
..."
PROCEEDINGS BEFORE THE COMMISSION
22. The applicant lodged his application with the Commission on
1 April 1988; he relied on Articles 5 para. 1 (a), 6 paras. 1, 2 and
3 (a) to (d), 8, 9, 10, 13 and 14 (art. 5-1-a, art. 6-1, art. 6-2,
art. 6-3-a, art. 6-3-b, art. 6-3-c, art. 6-3-d, art. 8, art. 9,
art. 10, art. 13, art. 14) of the Convention. Under Article 6
(art. 6) he complained that the in absentia proceedings conducted
against him had deprived him of the guarantees laid down therein.
23. On 3 December 1990 the Commission declared that last
complaint admissible; it found the remainder of the application
(no. 14104/88) inadmissible. In its report of 4 July 1991
(Article 31) (art. 31), it expressed the unanimous opinion that
there had been a breach of Article 6 para. 1 (art. 6-1). The full
text of its 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
245-C of Series A of the Publications of the Court), but a copy of
the Commission's report is available from the registry.
_______________
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
24. The applicant complained that the Genoa District Court and
Court of Appeal had tried him in absentia. There had, in his
opinion, been a breach of Article 6 paras. 1 and 3 (a) to (d)
(art. 6-1, art. 6-3-a, art. 6-3-b, art. 6-3-c, art. 6-3-d).
The Commission subscribed to this view; the Government
denied that there had been any violation.
25. The Court recalls that the requirements of paragraph 3 of
Article 6 (art. 6-3) are specific aspects of the right to a fair
trial guaranteed under paragraph 1 (art. 6-1) (see, among many other
authorities, the Colozza v. Italy judgment of 12 February 1985,
Series A no. 89, p. 14, para. 26, and the F.C.B. v. Italy judgment
of 28 August 1991, Series A no. 208-B, p. 20, para. 29). Like the
Commission, it will examine the complaint from the point of view of
that last provision, according to which:
"In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ..."
26. Although this is not expressly mentioned in paragraph 1
(art. 6-1), the object and purpose of the Article (art. 6) taken as
a whole show that a person charged with a criminal offence is
entitled to take part in the hearing (see the Colozza judgment,
cited above, p. 14, para. 27, the Brozicek v. Italy judgment of
19 December 1989, Series A no. 167, p. 19, para. 45, and the
F.C.B judgment, cited above, p. 21, para. 33).
27. Mr T. denied having received the "judicial notification" of
15 February 1983. At the time he had already left Saudi Arabia to
take up residence in Khartoum (see paragraph 8 above).
The Court is not therefore concerned with an accused who
had been notified in person and who, having thus been made aware of
the reasons for the charge, in an unequivocal manner waived his
right to appear and defend himself. Accordingly, it does not, in
this instance, have to determine whether and under what conditions
an accused can waive exercise of this right (see the F.C.B.
judgment, cited above, p. 21, para. 35).
The Government did not dispute the applicant's assertion.
Yet they considered that it had not been prejudicial to his right to
defend himself. They contended that the applicant had known
perfectly well that he had been charged with rape, as was shown by
his letter of 30 September 1983 to his wife; in their view, the
truth of the matter was that he had deliberately evaded trial.
28. Like the Commission, the Court finds that the applicant had
learned indirectly that criminal proceedings had been instituted
against him. To inform someone of a prosecution brought against him
is, however, a legal act of such importance that it must be carried
out in accordance with procedural and substantive requirements
capable of guaranteeing the effective exercise of the accused's
rights, as is moreover clear from Article 6 para. 3 (a) (art. 6-3-a)
of the Convention. Vague and informal knowledge cannot suffice.
Admittedly, during the investigation and then in the course
of the trial proceedings, the police made fresh inquiries in order
to discover Mr T.'s whereabouts, but these efforts were limited to
the latter's address in Italy (see paragraphs 10, 11 and 13 above).
Yet from the outset it was clear that the applicant was living
abroad; indeed he had had his passport renewed by the Italian
consulate in Khartoum on 8 February 1984 (see paragraph 16 above).
Notwithstanding this, the Italian judicial authorities declared him
untraceable and then convicted and sentenced him on 9 October 1984
and 1 October 1986, without having ordered more thorough
investigations.
29. It is difficult to reconcile this situation with the
diligence which the Contracting States must exercise to ensure the
effective enjoyment of the rights guaranteed under Article 6
(art. 6) (see, inter alia, the F.C.B. judgment, cited above, p. 21,
para. 33).
According to the Government, the applicant bears the entire
responsibility for this; after he had been declared "irreperibile",
he had failed to provide an address for service.
The Court does not see how he could have done so, as there
is no evidence that he knew what stage the proceedings conducted
against him had reached.
30. In conclusion, Mr T. did not receive a fair trial. As the
legislation in force at the time did not afford him any means of
redress in this respect, there was a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
31. According to 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."
The applicant claimed compensation for damage, without
giving any figures, and 4,000,000 Italian lire for his costs and
expenses before the Convention organs.
The Commission considered that it was appropriate to award
Mr T. an amount for non-pecuniary damage and for costs and expenses.
32. The applicant may have suffered some non-pecuniary damage,
but the Court is of the opinion that, in this instance, the
conclusion appearing at paragraph 30 of the present judgment
constitutes in itself sufficient just satisfaction for the purposes
of Article 50 (art. 50).
As regards the costs and expenses, Mr T. received legal aid
before the Commission and the Court; in the circumstances of the
case, his claims must be dismissed.
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 present judgment constitutes in itself
sufficient just satisfaction for any non-pecuniary damage
sustained;
3. Dismisses the remainder of the applicant's claims for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
12 October 1992.
Signed: Rolv Ryssdal
President
Signed: Marc-André EISSEN
Registrar