CASE OF HERMI v. ITALY
(Application no. 18114/02)
18 October 2006
This judgment is final but may be subject to editorial revision.
In the case of Hermi v. Italy,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Mr. L. Wildhaber,
Mr C.L. Rozakis,
Mr J.-P. Costa,
Mr B.M. Zupančič,
Mr R. Türmen,
Mr C. Bîrsan,
Mr J. Hedigan,
Mr A.B. Baka,
Mr V. Zagrebelsky,
Mr J. Borrego Borrego,
Mrs A. Gyulumyan,
Mr. D. Spielmann,
Mr E. Myjer,
Mr David Thór Björgvinsson,
Mrs D. Jočienė,
Mr D. Popović,
Mrs I. Ziemele, juges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 3 May 2006 and on 6 September 2006,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Government
Mr F. Crisafulli, judge, Ministry of Foreign Affairs, co-Agent,
(b) for the applicant
Mrs D. Puccinelli, lawyer, Counsel.
The Court heard addresses by them.
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant's arrest and conviction at first instance
B. The proceedings before the Court of Appeal and the Court of Cassation
“The President ... of the Court of Appeal ... in view of the notice of appeal lodged by (1) Basilaran Pacilyanathan, born [in] Sri Lanka on 1 November 1964, who is [in] Vasto Prison and (2) Fauzi [sic] Hermi, born [in] Tunisia on 27 January 1969, who is [in] Regina Coeli Prison ... against the judgment of the Rome preliminary hearings judge of 24 March 2000 convicting them as [set out] in the official record[;] whereas in the appeal proceedings the court must sit in private as the circumstances are those provided for in Articles 443 § 4 [and] 599 § 1 of the CCP ... ; having regard to Article 601 of the aforementioned Code of Criminal Procedure; gives notice to the above mentioned [persons] to appear at the hearing which the Court of Appeal ... is to hold in private on 3 November 2000, at 9 a.m., to rule on the above appeal. The appellants may, up to five days before the hearing and through the intermediary of [their] lawyers, examine at the registry the records and documents and ... make a copy of and consult them...”
C. The enforcement proceedings and the applicant's background
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The summary procedure
“1. The defendant may request that the case be decided at the preliminary hearing on the basis of the case file as it stands...
2. The request may be made, orally or in writing, until such time as the final submissions have been made under Articles 421 and 422.
3. The wishes of the defendant shall be expressed in person or through the intermediary of a specially instructed representative (per mezzo di procuratore speciale). The signature on the instruction shall be authenticated by means of the formalities detailed in Article 583 § 3 [by a notary, another authorised person or counsel for the defence].
4. The judge shall give a decision on the request in the order adopting the summary procedure.
5. The defendant ... may make his request subject to the admission of new evidence necessary for the court to reach a decision. The judge shall adopt the summary procedure if the admission of such evidence is necessary for a decision to be reached and is compatible with the aim of economy inherent in the procedure, taking into account the documents already before the court which can be used. In such cases the prosecution may request the admission of rebutting evidence. ...
“1. The summary procedure shall follow the provisions laid down concerning preliminary hearings, in so far as they can be applied, with the exception of Articles 422 and 423 [provisions governing the power of the judge to order of his own motion the production of crucial evidence and the possibility for the prosecution to amend the charge].
3. The summary proceedings shall be conducted in private. The judge shall order the proceedings to be conducted at a public hearing if all the defendants so request.
5. Where the judge considers that the case cannot be determined as it stands he shall acquire (assume) of his own motion the evidence necessary for a decision to be reached. In such cases, Article 423 shall apply.
6. For the purposes of the production of the evidence [referred to] in paragraph 5 of the present Article and in Article 438 § 5, the arrangements adopted shall be those set forth in Article 422 §§ 2, 3 and 4 [these paragraphs permit the parties to put questions to the witnesses and expert witnesses through the intermediary of the judge and give the defendant the right to request that he be questioned].”
“1. Once the arguments have been heard, the judge shall take a decision under the terms of Articles 529 et seq. [these provisions concern discharge, acquittal and conviction].
1a. The judge's deliberations shall be based on the documents contained in the file [referred to] in Article 416 § 2 [the file held by the Public Prosecutor's Office on the steps taken in the preliminary investigation], the documents [indicated] in Article 419 § 3 [relating to the steps in the investigation taken after the defendant was committed for trial] and the evidence adduced at the hearing.
2. If the defendant is convicted, the sentence imposed by the judge in the light of all the circumstances shall be reduced by one-third. Life imprisonment shall be replaced by thirty years' imprisonment. Life imprisonment with solitary confinement ... shall be replaced by life imprisonment.
3. The judgment shall be served on the defendant if he or she was not present.
“1. The defendant and the prosecution may not appeal against an acquittal if the object of the appeal is to secure a different form [of acquittal].
3. The prosecution may not lodge an appeal against a conviction unless the judgment alters the legal characterisation of the offence (il titolo del reato).
4. The appeal proceedings shall be conducted in accordance with the provisions of Article 599.”
B. Powers of the appellate court and arrangements for private hearings
29. Article 597 § 1 of the CCP states:
“The appeal judge shall be empowered to rule (la cognizione del procedimento) solely (limitatamente) on those aspects of the decision referred to in the grounds of appeal.”
“1. Where one of the parties, in the grounds of appeal, ... has requested the admission of evidence already produced at first instance or of new evidence the judge, if he considers that he is unable to determine the case as it stands (se ritiene di non essere in grado di decidere allo stato degli atti), shall order the investigation to be reopened.
2. If fresh evidence has come to light or [has been] discovered since the proceedings at first instance, the judge shall order the investigation to be reopened within the limits laid down by Article 495 § 1 [exclusion of evidence which is prohibited by law, manifestly superfluous or of no relevance to the proceedings].”
“1. When an appeal relates solely to the type or severity of the sentence, ... the court shall sit in private in accordance with the arrangements set forth in Article 127.
2. The hearing shall be adjourned if a defendant who has expressed a wish to appear has a legitimate reason for not attending.
3. In cases where the investigation is reopened after the appeal proceedings have begun, the judge shall take the evidence in private, in accordance with Article 603. The prosecution and defence counsel must be present. If the latter is not present when the reopening of the investigation is ordered, the judge shall set down a further hearing and shall order a copy of his decision to be forwarded to the prosecuting authorities and served on counsel for the defence.
“When proceedings must be held in private, the judge or the president of the chamber shall set down the hearing and serve notice of it on the parties, other interested persons and counsel for the defence. The notice shall be forwarded or served at least ten days before the date chosen. If the defendant has no counsel, the notice shall be sent to the officially appointed defence lawyer.
2. Memorials may be filed with the registry up to five days before the hearing.
3. Evidence shall be heard from the prosecution, the other recipients of the notice and the defence counsel if they appear at the hearing. If the person concerned is detained or imprisoned in a place outside the jurisdiction of the court and so requests, evidence must be taken from him before the date of the hearing by the judge responsible for the execution of sentences in that place.
4. The hearing shall be adjourned if a defendant or convicted person who has requested leave to give evidence in person and who is not detained or imprisoned in a place outside the court's jurisdiction has a legitimate reason for not attending.
5. Failure to comply with the provisions of paragraphs 1, 3 and 4 shall render the proceedings null and void.
6. The hearing shall be conducted in camera.
7. The judge shall rule by means of an order to be served on or forwarded to the persons indicated in paragraph 1 as soon as possible. The persons concerned may lodge an appeal on points of law.
8. Enforcement of the order shall not be stayed pending the appeal, unless the judge who issued the order decides otherwise by means of a reasoned decision (con decreto motivato).
9. A decision to declare the notice of appeal inadmissible shall be issued by the judge in the form of an order and without the need for procedural formalities, unless otherwise provided. The provisions of paragraphs 7 and 8 shall apply.
10. The record of the hearing shall be drafted, as a general rule, in the form of a summary in accordance with Article 140 § 2.”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“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:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(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;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
A. Chamber judgment
B. The parties' submissions
1. The applicant
2. The Government
C. The Court's assessment
1. General principles
(a) Right to participate in the hearing
58. In the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Lala v. the Netherlands, judgment of 22 September 1994, Series A no. 297 A, p. 13, § 33; Poitrimol v. France, judgment of 23 November 1993, Series A no. 277 A, p. 15, § 35; and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005).
(b) Right of the person charged with a criminal offence to be informed of the accusation against him
68. Under paragraph 3 (a) of Article 6 of the Convention, any person charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. Whilst this provision does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, it does point to the need for special attention to be paid to the notification of the “accusation” to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on notice of the factual and legal basis of the charges against him. A defendant not familiar with the language used by the court may be at a practical disadvantage if the indictment is not translated into a language which he understands (see Sejdovic, cited above, § 89; Kamasinski, cited above, pp. 36-37, § 79; Tabaï v. France (dec.), no. 73805/01, 17 February 2004; and Vakili Rad v. France, Commission decision of 10 September 1997, no. 31222/96).
69. In addition, paragraph 3 (e) of Article 6 states that every defendant has the right to the free assistance of an interpreter. That right applies not only to oral statements made at the trial hearing but also to documentary material and the pre-trial proceedings. This means that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him which it is necessary for him to understand or to have rendered into the court's language in order to have the benefit of a fair trial (see Luedicke, Belkacem and Koç v. Germany, judgment of 28 November 1978, Series A no. 29, p. 20, § 48).
(c) Waiver of the right to appear
2. Application of these principles to the instant case
FOR THESE REASONS, THE COURT
Holds, by twelve votes to five, that there has been no violation of Article 6 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 18 October 2006.
T.L. Early Luzius Wildhaber
Section Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Rozakis, Spielmann, Myjer and Ziemele and the dissenting opinion of Judge Zupančič are annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES ROZAKIS, SPIELMANN, MYJER AND ZIEMELE
First of all, the applicant was informed that the appeal hearing had been set down for 3 November 2000. However, at no point was he informed of any requirement to state his intention of taking part in the hearing. The letter entitled “Notice to appear in appeal proceedings before the court sitting in private” simply stated that “appellants may, up to five days before the hearing and through the intermediary of [their] lawyers, examine at the registry the records and documents and ... make a copy of and consult them...”.
While the “summary procedure” which was applied in the instant case has certain exceptional features, it has to be said that it does not expressly restrict participation in any stage of the proceedings. It is sometimes said in jest, rightly or wrongly, that prisoners know their rights and the rules of criminal procedure better than many lawyers. However, that does not exempt the authorities from the obligation to inform prisoners of their basic rights.
As paragraph 58 of the judgment rightly points out: “In the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial (see Lala v. the Netherlands, judgment of 22 September 1994, Series A no. 297 A, p. 13, § 33; Poitrimol v. France, judgment of 23 November 1993, Series A no. 277 A, p. 15, § 35; and De Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004), and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Stoichkov v. Bulgaria, no. 9808/02, § 56, 24 March 2005).”
These principles accord with the text of Article 6 of the Convention. As the Court recalls in paragraph 59 of the judgment: “Although this is not expressly mentioned in paragraph 1 of Article 6, 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 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 (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, p. 14, § 27, and Sejdovic, cited above, § 81).”
“In view of the prominent place held in a democratic society by the right to a fair trial (see, among many other authorities, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, pp. 14-15, § 25 in fine), Article 6 of the Convention imposes on every national court an obligation to check whether the defendant has had the opportunity to apprise himself of the date of the hearing and the steps to be taken in order to take part where, as in the instant case, this is disputed on a ground that does not immediately appear to be manifestly devoid of merit (see, mutatis mutandis, Somogyi v. Italy, no. 67972/01, § 72, ECHR 2004-IV). This applies equally in the context of simplified procedures such as the summary procedure, where the accused has waived a number of his or her rights.”1
DISSENTING OPINION OF JUDGE ZUPANČIČ
I agree with the joint dissenting opinion of Judges Rozakis, Spielmann, Myjer and Ziemele. However, to the extent that the decision in this case hinges on the distinction between facts and law – that is, to the extent that the Rome Court of Appeal would have been justified in dispensing with the presence of the defendant on the assumption that only legal issues were to be decided – I would like to contribute my own opinion concerning the relative nature of the distinction between factual and legal issues.
Legal issues cannot easily be separated from factual considerations either in abstracto or in concreto.
The reason for this is very simple. In abstracto it may be said that the choice of the norm (la qualification du cas) in relation to which the fact pattern is to be considered – clearly determines which facts are going to be considered as legally relevant and which are not. A different choice of legal characterisation brings different facts to the fore, or at least a different interpretation of the same facts. Even an extreme Hobbesian position is tenable in this respect, that is, that there simply are no legally relevant facts unless there is a prior legal norm (of criminal law) under which these facts become legally relevant1. To cite one example, the killing of the pawnbroker woman described by Dostoyevsky in his novel Crime and Punishment can only be called “murder” because there was a pre-existing norm of substantive criminal law that described and punished such conduct as “murder”.
In Continental jurisdictions, under the formula iura novit curia, criminal courts are not usually bound by the legal characterisation of the facts put forward by the prosecutor. The prosecution advances its evidence of a certain fact pattern (a past event) and proposes the legal characterisation which in its opinion best describes it. The defence will normally attempt to have that legal characterisation rejected. The court will settle for one of the two – or find its own.
It is thus fair to say that this dialectic operates through the mutual conversion of the facts into normative choice and normative choice into the selection of the relevant facts. Thus, which norm will initially be selected depends on the primary perception of the facts. Thereafter and conversely, the perception of the relevant facts may in turn determine the choice of (a different) norm. This mental loop will often be repeated several times in order to arrive at the optimal characterisation of the fact pattern. This mental process is silent, that is to say, it is not usually reflected in the final reasoning (grounds) of the judgment. It is nevertheless real and decisive. A first tentative legal characterisation is put forward by the police; it is then corrected by the prosecution, reacted to by the defence and adopted, or rejected, by the trial and appellate courts according to the principle iura novit curia.
Thus, all three parties attempt to find the legal characterisation that most adequately describes the fact pattern at hand. This can even be generalised in so far as we can say that in all legal reasoning – no matter at what instance of judicial decision-making – the winner is the one who most persuasively advances the most concise and otherwise appropriate legal characterisation. Inasmuch as it can be said that the outcome of this mental exercise is objectively predetermined and not subject to arbitrary preferences on the part of the judges, it makes sense to speak of the rule of law (as opposed to the supremacy of the judges).
In any event, legal reasoning at the appellate level – just as much as in the first-instance court – deals with the subsuming of the ascertained facts into the chosen legal norm. A different legal characterisation at the appellate level, in other words, will mean that facts other than those which were hitherto decisive will become legally relevant.
True, at the appellate level these “facts” are more likely to be various procedural violations. Here at the European Court of Human Rights we continue to make the point that we are not a fourth instance court and that we do not wish to deal with any facts which are subject to the guiding principle of immediacy in a trial. Nevertheless, a new major premise in legal terms will always call for new elements making up the minor premise, that is, some kind of facts.
This dialectical interaction between the choice of the major premise (the norm) and the perception of the minor premise, that is, the determination of certain facts as legally (ir)relevant, is an antinomy. The norms are created to govern conduct. They must therefore be different and separate from the facts. The antinomy stems from the fact that the choice of facts which are to become legally relevant depends on the choice of legal norm, and vice versa. In other words, because there simply are no independent facts out there waiting for the legal norm to be applied to them, the result is a merger of the facts and the law. In the end it cannot be said that the norms and the facts are different and separate. Out of the millions of “facts” which were necessary conditions for the occurrence of the event in question, only a few will come to the fore and be retained as legally relevant. However, they come to the fore and are retained only because we have chosen a particular legal norm into which we wish to subsume them.
An additional complication arises in this mental exercise. The chosen norm (characterisation of the case) is not simply one paragraph of one article in the criminal code. A combination of several norms is needed in order adequately to cover the fact pattern. Issues such as criminal culpability (from the general part of the criminal code) combine with the choice of the specific charges (in the special part of the criminal code) – to say nothing of the requisite absence of affirmative defences (insanity, necessity, errors of fact and so forth).
In other words, the major premise is always a combination of different provisions of the criminal code. This makes it all the more patent that the rigour of the principle of legality is not, as it is usually understood to be, a one dimensional subsuming of an obvious fact pattern into an obvious, single and exclusive norm. The choice of the combination of norms that best describes the fact pattern is in itself a complex mental exercise in which, like in a chess game, different combinations are considered before a final choice is settled upon.
In this context it is simply untenable to maintain that the “facts” can easily be separated from the “law”.
The question, however, whether in this particular case the Court of Appeal could have decided the case without the defendant's input concerning the facts is somewhat superfluous. In abstracto, Italian law itself provides the possibility for the defendant to participate precisely because it is sensitive to the complexity spelled out above.
In concreto, the second criminal division of the Court of Appeal decided that it could dispense with the defendant's presence. I would dare to assume that, even in terms of domestic procedural norms, this decision – to dispense with the presence of the defendant despite the absence of an express and unequivocal waiver resulting from his informed consent – ran counter to the spirit of the applicable Article 599(2) of the Italian Codice di procedura penale. In my view, the fact that the notice did not provide either for an express waiver or for the automatic transfer of the defendant to the Court of Appeal was a simple clerical oversight caused by careless drafting of the printed form.
The consequence of that, however, is that we do not know whether the applicant's absence from the hearing before the Rome Court of Appeal was the result of his informed consent, his lawyers' omission or some other factor. Given both the spirit of Article 599(2) of the Italian Codice di procedura penale and our own case-law, I would hold that the onus was on the Italian Government to convince us that the waiver was express and unequivocal.
Since the Government did not succeed in so doing, I feel that I was justified in voting for, rather than against, a violation of Article 6 of the Convention.
1 Our italics.
1 “From this relation of sin to the law, and of crime to the civil law, may be inferred, … secondly, that the civil law ceasing, crimes cease: for there being no other law remaining but that of nature, there is no place for accusation; every man being his own judge, and accused only by his own conscience, and cleared by the uprightness of his own intention. … Thirdly, that when the sovereign power ceaseth, crime also ceaseth: for where there is no such power, there is no protection to be had from the law; and therefore every one may protect himself by his own power” (Hobbes, Leviathan, Ch.XXVII (3), Of Crimes, Excuses, and Extenuations).