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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