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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: [1994] ECHR 4, 18 EHRR 295, (1994) 18 EHRR 295

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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.

_______________