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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> TRIPODI v. ITALY - 13743/88 [1994] ECHR 4 (22 February 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/4.html
Cite as: 18 EHRR 295, (1994) 18 EHRR 295, [1994] ECHR 4
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In the case of Tripodi 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 Thór Vilhjálmsson,
Mr F. Matscher,
Mr L.-E. Pettiti,
Mr R. Macdonald,
Mr C. Russo,
Mr A. Spielmann,
Mr J. De Meyer,
Mr R. Pekkanen,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 September 1993 and
25 January 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar: the case is numbered 4/1993/399/477. 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.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 19 February 1993, 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. 13743/88) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national,
Mrs Rosa Tripodi, on 9 July 1986.
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. 3 (c) (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
she wished to take part in the proceedings and designated the lawyer
who would represent her (Rule 30).
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 February 1993, in the presence of the
Registrar, the President drew by lot the names of the other seven
members, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr L.-E. Pettiti,
Mr R. Macdonald, Mr A. Spielmann, Mr J. De Meyer and Mr R. Pekkanen
(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Italian
Government ("the Government"), the applicant's lawyer and Delegate of
the Commission 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 July 1993 and the
Government's memorial on 30 July.
5. On 2 September 1993 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the decision of the President - who had
given the applicant leave to use the Italian language (Rule 27
para. 3) -, the hearing took place in public in the Human Rights
Building, Strasbourg, on 20 September 1993. 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,
Mr E. Selvaggi, Head of the Human Rights Department,
Directorate General of Criminal Affairs,
Ministry of Justice,
Mr V. Esposito, President of Chamber,
Court of Cassation, Counsel;
(b) for the Commission
Mr E. Busuttil, Delegate.
The applicant's lawyer did not take part in the hearing.
The Court heard addresses by Mr Raimondi, Mr Esposito and
Mr Busuttil. At the conclusion of the hearing the Government produced
various documents.
7. On 30 September the applicant's lawyer filed observations in
reply to the Government's memorial; the Court decided not to include
them in the file as they had been lodged belatedly (Rule 37 para. 1,
third sub-paragraph).
AS TO THE FACTS
I. The particular circumstances of the case
8. Mrs Rosa Tripodi, a shopkeeper, lives in Reggio di Calabria.
9. In 1975 a lawyer, Mr M. F., sold her a plot of land adjoining
his property in Riace. Numerous disputes arose between them.
10. On 5 November 1982 Mr M. F. laid a complaint against the
applicant with the Reggio di Calabria public prosecutor. On
15 November the local carabinieri questioned Mrs Tripodi in connection
with the acts of which she was accused.
On 7 February 1983 notice of criminal proceedings was served
on the applicant and on 26 April 1983 she was interviewed by the public
prosecutor. In the meantime she had accused Mr M. F. of attempted
blackmail.
11. Further incidents led Mr M. F. to file additional complaints
on 11 April, 10 May, 10 and 28 June 1983. Pursuant to a warrant issued
by the investigating judge on 5 July 1983, Mrs Tripodi was arrested on
8 July and questioned on 12 July.
12. She was released on the same day, but by a decision (decreto
di citazione) of 7 October 1983 was summoned to appear in the Reggio
di Calabria District Court charged, inter alia, with threatening to
cause bodily harm to Mr M. F. and his son (Articles 610 and 612 of the
Criminal Code), issuing threats intended to coerce witnesses into
giving false evidence (Article 611), harassment by telephone
(Article 660), attacking the complainant's honour and reputation by
insults and defamation (Articles 594-595) and criminal damage
(Article 635).
13. When the trial opened on 8 November 1983, the public
prosecutor called for a charge of repeated false accusation (calunnia
continuata - Articles 81 and 368) to be added to the indictment,
whereupon the District Court adjourned the proceedings.
14. Trying Mrs Tripodi on a new indictment, the District Court
sentenced her on 9 May 1984 to a suspended term of one year and ten
months' imprisonment, not to be entered on her criminal record. It
also fined her 150,000 lire and awarded damages against her.
15. On an appeal by the applicant, the Reggio di Calabria Court
of Appeal, giving judgment on 4 February 1985, quashed the conviction
on one count and reduced the suspended prison sentence by two months.
16. Mrs Tripodi and the public prosecutor appealed to the Court
of Cassation. The applicant filed her submissions in a memorial of
11 March 1985. On 26 March the registrar informed the lawyer appointed
by her (difensore di fiducia) that the file had reached the Court of
Cassation. On 2 October 1985 the lawyer received the notice fixing the
date of the hearing. On 18 November 1985 he asked the court to
postpone the hearing set down for 6 December 1985, as his state of
health prevented him from attending on that date. He had had an
operation and when he had left hospital on 15 November his doctor had
prescribed thirty days' total rest for him. The letter reached the
registry on 25 November 1985.
17. The hearing before the Court of Cassation was nevertheless
held on 6 December 1985. On that date the public prosecutor opposed
an adjournment. The Court of Cassation refused to accede to the
applicant's lawyer's request and proceeded to hear the case in the
latter's absence. In a judgment of the same date, filed with the
registry on 14 March 1986, it dismissed the appeals of both parties.
II. The relevant domestic law
18. The main provisions of the Code of Criminal Procedure in force
at the material time with regard to the procedure in the Court of
Cassation and various Articles concerning the replacement of counsel
and the adjournment of hearings are set out below.
1. The procedure in the Court of Cassation
19. Article 529
"...
"Where the submissions [in support of the appeal] have been
filed in good time, further submissions may be lodged within
the time-limit laid down in Article 533."
Article 533
"As soon as the file reaches the registry, the registrar of
the Court of Cassation shall advise the defendant's lawyer
that, for a period of fifteen days following service of the
notice, he may consult the file at the registry, make copies
of the documents therein and produce new documents."
Article 536
"...
The parties to the proceedings other than the prosecution
may appear only through their lawyers, who must be entered on
the special roll of the Court of Cassation; they may file
with the registry, not later than eight days before the day
fixed for the hearing, memorials ... setting out legal
argument in support of their submissions.
...
At the hearing the President or the member of the Court
delegated by him shall read out the report. The parties'
lawyers are not required to be present or to make final
submissions. A lawyer other than the one designated in the
notice of appeal may address the Court ... provided that he
has received special authority to this effect."
2. The choice of a lawyer
20. Article 125
"...
The accused may not be assisted by more than two lawyers."
Article 127
"If they are unable to attend on legitimate grounds, the
lawyer or lawyers appointed by the parties may each designate
a lawyer to replace them; the latter shall be authorised to
take part in the hearing only for as long as it remains
necessary for them to replace the lawyer or lawyers in
question.
..."
3. Adjournment of hearings
21. Article 432
"Where it is expressly authorised by the law, or if it
becomes absolutely necessary to do so, the Court of
Cassation, the District Court or the Magistrate's Court
("pretore") may make an order adjourning the hearing."
22. Article 486 of the new Code of Criminal Procedure, which
entered into force on 24 October 1989, now provides that "where the
lawyer is absent because there are legitimate reasons making it
absolutely impossible for him to appear, the judge shall stay or
adjourn the hearing".
PROCEEDINGS BEFORE THE COMMISSION
23. Mrs Tripodi lodged her application (no. 13743/88) with the
Commission on 9 July 1986. She maintained that her case had not been
heard by an "impartial tribunal" within the meaning of Article 6
para. 1 (art. 6-1) of the Convention. She also alleged that her arrest
and her detention had been contrary to Article 5 (art. 5). Finally,
she complained that, in breach of Article 6 para. 3 (c) (art. 6-3-c),
she had not had the benefit of the assistance of a lawyer for the
examination of her appeal by the Court of Cassation.
24. On 2 July 1990 the Commission declared the first two
complaints inadmissible. It found the third admissible on
13 January 1992. In its report of 14 October 1992 (made under
Article 31) (art. 31) it expressed the unanimous opinion that there had
been a violation of Article 6 para. 3 (c) (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 281-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
ALLEGED VIOLATION OF ARTICLE 6 PARA. 3 (c) (art. 6-3-c)
25. Mrs Tripodi complained that, at its hearing on
6 December 1985, the Court of Cassation had examined her appeal in the
absence of her lawyer and had failed to appoint a lawyer to take his
place. She relied on Article 6 para. 3 (c) (art. 6-3-c), which is
worded as follows:
"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 or, if he has not sufficient means to pay
for legal assistance, to be given it free when the interests
of justice so require;
..."
The Commission in substance accepted the applicant's
submission.
26. The Government contested it. They contended that, in view of
the special features of the procedure in the Court of Cassation and the
relevant provisions of the Italian legislation, the absence of a lawyer
during the oral phase of the proceedings had not been contrary to the
Convention.
The Government maintained that, in order to assess whether the
applicant had been afforded effective legal assistance and whether the
principle that proceedings must be inter partes had been complied with,
it was necessary to view the proceedings in their entirety; that was
thus the approach to be adopted.
Once it had been established that the lawyer was going to be
unable to attend the hearing, he and his client could have taken
appropriate steps to appoint either a replacement or a second lawyer
(Articles 125, 127 and 536 of the Code of Criminal Procedure, see
paragraphs 19-20 above).
27. The Court notes that in appeal and cassation proceedings the
manner in which paragraphs 1 and 3 (c) of Article 6 (art. 6-1,
art. 6-3-c) are to be applied depends upon the special features of the
proceedings in question. Account must be taken of the entirety of the
proceedings conducted in the domestic legal system and the role of the
particular appellate court therein (see, inter alia, mutatis mutandis,
the following judgments: Monnell and Morris v. the United Kingdom of
2 March 1987, Series A no. 115, p. 22, para. 56; Granger v. the United
Kingdom of 28 March 1990, Series A no. 174, p. 17, para. 44; and
Jan-Åke Andersson v. Sweden of 29 October 1991, Series A no. 212-B,
pp. 43-44, para. 22).
28. In this connection, it should be observed that the Italian
Court of Cassation decides on points of law. Its proceedings are
essentially written and at the hearing the appellant's lawyer may only
present argument in relation to submissions already made in the appeal
and the memorials. This rule does not apply where the appellant
invokes incurable nullity, reasons precluding the continuation of the
criminal proceedings or questions of constitutionality. These are
therefore issues which may be raised also at the hearing and indeed may
be examined by the court of its own motion, but the applicant did not
adduce any such grounds.
29. Mrs Tripodi's lawyer made his submissions in a memorial of
11 March 1985 (see paragraph 16 above). On 26 March he was advised
that the file had been lodged with the registry and that he could
consult it and produce new documents (Article 533 of the Code of
Criminal Procedure - see paragraph 19 above). On 2 October he received
the notice informing him of the date of the hearing (6 December 1985).
On 18 November he sent a letter attesting to his inability to attend
and requesting an adjournment.
30. The Court, like the Commission, fully recognises the value of
oral argument before the Court of Cassation, notwithstanding the limits
referred to in paragraph 28 above. It has had regard in this
connection to the fact that parties other than the prosecuting
authorities must be represented by their lawyers (Article 536 of the
Code of Criminal Procedure, see paragraph 19 above).
It notes, however, that, despite knowing that he would be
unable to attend the hearing set down for 6 December 1985, the
applicant's lawyer failed to take any action. Yet he could not have
been unaware of the statutory provisions on adjournment (Article 432
of the Code of Criminal Procedure, see paragraph 21 above). From
18 November 1985, if not before, he could - and should - have taken
steps to ensure that he was replaced for the day of the hearing
(Article 127 of the Code of Criminal Procedure, see paragraph 20
above). He could also have filed a further memorial, or have arranged
for the filing of such a memorial by another lawyer, even as late as
eight days before the hearing (Article 536 of the Code of Criminal
Procedure, see paragraph 19 above).
In these circumstances the Court cannot hold the State
responsible for a shortcoming on the part of the lawyer appointed by
the accused (see, in respect of a lawyer appointed for legal aid
purposes, the Kamasinski v. Austria judgment of 19 December 1989,
Series A no. 168, p. 33, para. 65).
31. Having regard to the special features of the procedure in the
Court of Cassation and to the conduct of the applicant's lawyer, the
Court finds that there has been no violation of Article 6 para. 3 (c)
(art. 6-3-c).
FOR THESE REASONS, THE COURT
Holds by seven votes to two that there has been no violation
of Article 6 para. 3 (c) (art. 6-3-c).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 February 1994.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the
Convention and Rule 53 para. 2 of the Rules of Court, the joint
dissenting opinion of Mr Ryssdal and Mr De Meyer is annexed to this
judgment.
Initialled: R. R.
Initialled: M.-A. E.
JOINT DISSENTING OPINION OF JUDGES RYSSDAL AND DE MEYER
We agree with the opinion of the Commission that there has
been a breach of Article 6 para. 3 (c) (art. 6-3-c) in this case.
It is not in dispute that, on account of the rest which his
doctor had prescribed for him on 15 November 1985, the lawyer briefed
by the applicant to present her case in the Court of Cassation was
unable for a legitimate reason to appear before that court on
6 December and that he had, on 18 November 1985, requested the Court
of Cassation to postpone the hearing for that reason to a later date1.
The Court of Cassation left it until 6 December 1985 before
deciding to reject the lawyer's request and proceeded to dispose of the
case forthwith in the presence of the representative of the prosecuting
authority but in the absence of the applicant's lawyer.
The latter can hardly be criticised for failing to take any
action2, when his doctor had, on 15 November 1985, prescribed "total
rest" for him. The Court of Cassation had been informed of this three
days later3.
Similarly, it can scarcely be held against the applicant that
she failed to adduce any of the grounds which could still have been
raised at the hearing4, when she was denied the opportunity of
participating in the oral proceedings either in person or through her
lawyer. Moreover, there is nothing to indicate that she was aware that
her lawyer was unable to attend.
Against this background we consider that the rights of the
defence were not adequately respected.
_______________
1. Paragraph 16 of the judgment.
2. Paragraph 30 of the judgment.
3. Paragraph 16 of the judgment.
4. Paragraph 28 of the judgment.
_______________