In the case of Padovani 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. Bernhardt, President,
Mr Thór Vilhjálmsson,
Mr F. Gölcüklü,
Mr B. Walsh,
Mr R. Macdonald,
Mr C. Russo,
Mr J. De Meyer,
Mr N. Valticos,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Having deliberated in private on 25 May 1992,
25 September 1992 and 28 January 1993,
Delivers the following judgment, which was adopted on the
Notes by the Registrar
* The case is numbered 71/1991/323/395. 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.
1. The case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 12 July 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. 13396/87) against the Italian Republic
lodged with the Commission under Article 25 (art. 25) by
Mr Alessandro Padovani, an Italian national, on 1 July 1987.
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
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 16 August 1991 the
President of the Court 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 29 August 1991, in the
presence of the Registrar, the President drew by lot the names
of the other seven members, namely Mr Thór Vilhjálmsson,
Mr F. Gölcüklü, Mr R. Macdonald, Mr R. Bernhardt, Mr J. De Meyer,
Mr N. Valticos and Mr J.M. Morenilla (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
proceedings (Rules 37 para. 1 and 38). Pursuant to the order
made in consequence, the Registrar received the applicant's
memorial on 5 December 1991, the Government's memorial on
23 December 1991 and the observations of the Delegate of the
Commission on 24 February 1992.
5. Also on 24 February 1992 the Commission produced the file
on the proceedings before it, as requested by the Registrar on
the President's instructions.
6. On 26 February the Chamber 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).
7. On 12 March the Government filed their observations on the
applicant's claims for just satisfaction.
8. On 3 June the Registrar, acting on the Court's
instructions, asked the Government and the applicant for various
documents; these were provided on 26 and 16 July.
9. As Mr Ryssdal was unable to attend the deliberations on
28 January 1993, his place as President of the Chamber was taken
by Mr Bernhardt, the Vice-President of the Court
(Rule 21 para. 5, second sub-paragraph); Mr B. Walsh, substitute
judge, replaced Mr Ryssdal as a member of the Chamber
(Rules 22 para. 1 and 24 para. 1).
AS TO THE FACTS
I. The particular circumstances of the case
10. Mr Alessandro Padovani is a workman and lives in Bergamo.
On 21 February 1987 he was arrested by the police, who had
found certain items of stolen property in his possession. On the
same day the police brought him before the Bergamo magistrate
(pretore), who immediately after questioning him confirmed his
arrest. The magistrate also heard two other accused, Mr B. and
Mrs M., on 21 and 23 February.
11. On 26 February the magistrate issued a warrant for the
applicant's arrest, but not for that of Mr B. or Mrs M., and
initiated immediate proceedings (giudizio direttissimo) against
him and his co-accused. He set a hearing date of 2 March, and
found that there was sufficient evidence pointing to
Mr Padovani's guilt - namely the discovery of the articles in
question at his residence - and that the alleged offences were
serious, having regard inter alia to the applicant's previous
12. The hearing lasted for about half an hour. The applicant
stated, as he had also done when questioned on 21 February 1987,
that he had bought the items in question from a stranger who had
told him that he needed money to pay a bill. He admitted,
however, that he had not believed this explanation, but had
thought that the vendor had stolen them from his relatives or
friends in order to obtain money to purchase drugs.
The magistrate also heard Mr B. and Mrs M. and two
witnesses. The public prosecutor's office, which was represented
by counsel as permitted in certain cases by section 72 of Royal
Decree no. 12 of 30 January 1941 on the organisation of the
courts, requested eight months' imprisonment for Mr Padovani.
The magistrate considered that the applicant had not
acquired the items in question in good faith, and imposed a
suspended sentence of one year's imprisonment and fined him
250,000 lire. The judgment was filed with the registry seven
days later, on 9 March 1987.
Mr Padovani did not appeal.
II. Relevant domestic law
13. The magistrate has jurisdiction over offences punishable
by imprisonment for up to three years or by a fine or both, and
also over a number of offences specifically mentioned in
Article 31 of the Code of Criminal Procedure (CCP) in respect of
which "a person arrested in flagrante delicto shall immediately
be brought before the magistrate to be tried".
14. Under the heading "Immediate trial procedure" (Giudizio
direttissimo), Article 505 of the former Code of Criminal
Procedure in force at the time provided as follows:
"... In the case of offences within the jurisdiction of
the magistrate (pretore), the police officers who have
arrested a person in flagrante delicto or in whose charge
an arrested person has been placed shall bring him
directly before the magistrate, shall on the latter's
instructions (even if merely oral) summon the victim and
the witnesses, and shall notify defence counsel chosen [by
the arrested person] or appointed by the court.
If the magistrate is not sitting, the police officers
who have effected the arrest or in whose charge the
arrested person has been placed shall immediately inform
the magistrate thereof and shall produce the arrested
person at a hearing, arranged by the magistrate, within
forty-eight hours from the arrest.
The magistrate before whom the arrested person is
brought shall authorise the police officer to make an oral
report and shall then question the accused in order to
confirm the arrest.
If the arrest is confirmed and the magistrate does not
consider that he should release the accused, he shall
immediately initiate proceedings according to the
At the request of the accused, the magistrate may grant
an adjournment of not more than five days for him to
prepare his defence.
The magistrate shall exercise the powers conferred on
the public prosecutor's office and the magistrate in
accordance with the preceding Articles."
Under the heading "Conduct of criminal proceedings by the
public prosecutor's office or the magistrate (pretore)",
Article 74 of the CCP stated that:
"The public prosecutor's office or, for offences within
his jurisdiction, the magistrate shall initiate or conduct
criminal proceedings following the procedure provided for
by law in accordance with Article 1.
The public prosecutor's office shall, if it considers
that there is no occasion to initiate criminal
proceedings, request the investigating judge to make an
order (decreto) [to this effect] ...
For the purpose mentioned in the preceding paragraph,
the magistrate shall make an order [discontinuing the
proceedings] and shall notify the public prosecutor, who
may request the file and decide to continue the
Article 231 provided that:
"In the case of offences within his jurisdiction, the
magistrate (pretore) shall, before making an order
committing for trial or proceeding to give judgment in
'direttissimo' proceedings or by 'decreto', order or carry
out any police measures or summary investigative measures
which he deems necessary ..."
III. The case-law of the Constitutional Court
15. The Italian Constitutional Court has had occasion to
decide on the compatibility with various provisions of the
Constitution of the magistrate's dual function of investigation
In two decisions, no. 61 of 24 May 1967 (Foro Italiano
1967, I, p. 1113) and no. 123 of 9 July 1970 (Foro It. 1970, I,
p. 1841), it dismissed the objections of unconstitutionality put
forward in this respect.
In a more recent decision of 15 December 1986 (no. 268,
Foro It. 1988, I, p. 1117), the Constitutional Court invited the
legislature to take account, in the context of the reform of the
Code of Criminal Procedure, of the development in legal thought
towards drawing a clear distinction between the above two
functions. It stated that in the absence of a legislative
measure it would have to reconsider its case-law.
16. The question has now been resolved, as the new code, which
came into force on 24 October 1989 and adopted the adversarial
system, provides for such a separation in respect of proceedings
in the magistrate's court. In Articles 549 to 567 it institutes
a public prosecutor's office at each magistrate's court
PROCEEDINGS BEFORE THE COMMISSION
17. The applicant applied to the Commission on 1 July 1987.
He complained that the magistrate had not been an impartial
tribunal and relied on Article 6 para. 1 (art. 6-1) of the
18. The Commission declared the application (no. 13396/87)
admissible on 3 December 1990. In its report of 6 June 1991
(made under Article 31) (art. 31), it expressed the opinion, by
sixteen votes to two, that there had been a violation of
Article 6 para. 1 (art. 6-1). The full text of the Commission's
opinion and of the dissenting opinion contained in the report 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 257-B 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. THE GOVERNMENT'S PRELIMINARY OBJECTION
19. The Government argued that the applicant had not exhausted
domestic remedies, as he had not appealed against the pretore's
judgment on the ground that he had not been impartial.
The Court finds that the objection, which was previously
raised before the Commission, is unfounded; as the magistrate
acted in accordance with the legislation in force at the time
(see paragraph 14 above), the Bergamo District Court would not
have been able to quash the judgment.
20. The Government also observed that Mr Padovani could have
asked the appellate court to refer a question relating to the
constitutionality of the said legislation to the Constitutional
Court, given the "possibilist attitude" adopted in the judgment
of 15 December 1986 (see paragraph 15 above, in fine).
This argument was not put forward before the Commission
and is subject to estoppel (see, inter alia, the Ciulla v. Italy
judgment of 22 February 1989, Series A no. 148, p. 14,
paras. 27-29). In any event, an individual is not entitled to
apply directly to the Italian Constitutional Court for a review
of the constitutionality of a law, so that he does not have
available to him in this respect a remedy whose exhaustion is
required under Article 26 (art. 26) of the Convention (see the
Brozicek v. Italy judgment of 19 December 1989, Series A no. 167,
pp. 16-17, para. 34).
II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
21. Mr Padovani alleged that he had not received a hearing
before an "impartial tribunal" within the meaning of
Article 6 para. 1 (art. 6-1), which states that:
"In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
... impartial tribunal ..."
22. The Commission agreed in essence with this argument. It
considered that, irrespective of the pretore's actual conduct in
concreto, the functions of investigation and judgment were
23. The Government argued, on the other hand, that the pretore
could not be criticised as having lacked impartiality. He had
intervened at a stage prior to the hearing, and had used only the
powers expressly conferred on him by the law in the context of
a special procedure inspired by concern for speed and simplicity.
24. The Court points out that its task is not to review the
relevant law and practice in abstracto, but to determine whether
the manner in which they were applied to or affected the
applicant gave rise to a violation of Article 6 para. 1
(art. 6-1) (see, inter alia, the Hauschildt v. Denmark judgment
of 24 May 1989, Series A no. 154, p. 21, para. 45).
25. The existence of impartiality for the purposes of
Article 6 para. 1 (art. 6-1) must be determined according to a
subjective test, that is on the basis of the personal conviction
of a particular judge in a given case, and also according to an
objective test, that is ascertaining whether the judge offered
guarantees sufficient to exclude any legitimate doubt in this
respect (ibid., para. 46).
26. As to the subjective test, the personal impartiality of a
judge must be presumed until there is proof to the contrary
(ibid., para. 47), and no evidence has been produced which might
suggest bias on the part of the magistrate.
27. As to the objective test, it must be determined whether,
quite apart from the judge's conduct, there are ascertainable
facts which may raise doubts as to his impartiality. In this
respect even appearances may be of a certain importance. What
is at stake is the confidence which the courts in a democratic
society must inspire in the public and above all, as far as
criminal proceedings are concerned, in the accused.
It follows that in deciding whether in a given case there
is a legitimate reason to fear that a particular judge lacks
impartiality, the standpoint of the accused is important but not
decisive. What is decisive is whether this fear can be regarded
as objectively justified (ibid., para. 48).
28. In the instant case the fear of lack of impartiality was
based on the fact that the pretore had before the trial
questioned the applicant, taken measures restricting his liberty
and summoned him to appear before him (see paragraphs 10-11
Although such a situation could occasion misgivings on the
part of the applicant, they cannot for all that be regarded as
The information obtained by the Court (see paragraph 8
above) in fact shows that the summary investigative measures
referred to in paragraph 16 of the Commission's report consisted
in the present case merely of questioning the three accused, even
though under Article 231 of the Code of Criminal Procedure the
magistrate could have carried out further measures (see
paragraph 14 above, in fine). It also appears that in issuing
the arrest warrant of 26 February 1987, the magistrate relied
inter alia on Mr Padovani's own statements (see paragraphs 11-12
above and the Sainte-Marie v. France judgment of
16 December 1992, Series A no. 253-A, p. 16, para. 33).
The Court notes in addition that the pretore followed
specific rules applicable to flagrante delicto cases within his
jurisdiction. Giudizio direttissimo is a flexible procedure
which seeks to satisfy the "reasonable time" requirement.
29. There has therefore not been a violation of
Article 6 para. 1 (art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the objection of failure to exhaust domestic
2. Holds that there has not been a violation of
Article 6 para. 1 (art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on
26 February 1993.
Signed: Rudolf BERNHARDT
Signed: Marc-André EISSEN
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the
concurring opinion of Mr De Meyer is annexed to this judgment.
Initialled: R. B.
Initialled: M.-A. E.
CONCURRING OPINION OF JUDGE DE MEYER
In common with the other members of the Chamber, I am of
the opinion that in the particular circumstances of the case the
applicant's fundamental rights were not violated.
Like the Fey case1, which was decided by a different
Chamber, the present case demonstrates the difficulties which may
arise in applying the principles stated by the Court since the
Piersack2 and De Cubber3 judgments, with respect to the
successive exercise by a judge of different functions. Further
thought appears to be called for on this subject.
The question also arises more generally whether the Court
is not sometimes more sensitive to appearances than to reality
when considering the independence and impartiality of tribunals.
1. Fey v. Austria judgment of 24 February 1993, Series A no. 255.
2. Piersack v. Belgium judgment of 1 October 1982, Series A
3. De Cubber v. Belgium judgment of 26 October 1984, Series A