European Court of Human Rights

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 certain of its obligations under Article 6 §§ 3 (a) and 1 (art. 6-3-a, art. 6-1).

In a letter which reached the registry on 10 January 1989, the Deputy Secretary to the Commission informed the Registrar that the Delegate would submit his observations at the hearing.

They authorised one of the witnesses, who had a legitimate reason for being unable to come to Strasbourg, to submit a written statement which would be assessed by the Court as to its admissibility and relevance. Written statements by two other persons, which the applicant had sent to the registry on 24 April, were dealt with in the same way.

The Court had previously obtained from the Commission, for the purposes of the investigative measure in question, various documents from the national proceedings and specimens of the applicant's handwriting.

There appeared before the Court:

- for the Government

       Mr L. Ferrari Bravo, Head of the Diplomatic Legal Service

                            of the Ministry of Foreign Affairs,                              Agent,

       Mr G. Grasso, avvocato,

       Mr G. Raimondi, magistrato,                                                    Counsel;

- for the Commission

       Mr G. Batliner,                                                                      Delegate.

On the day of the hearing the applicant informed the Court that he was unable to attend because of an illness. He agreed to the hearing's being conducted in his absence. On 20 May he had supplied the text of his address.

The Court heard addresses by Mr Ferrari Bravo for the Government and Mr Batliner for the Commission as well as their replies to its questions.

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

On 14 August the carabinieri, who had also intervened on the previous day, submitted a report on the incident to the Savona Public Prosecutor's Office. On the same day Mr Brozicek sent a letter, in French, to the Police Chief (questore) of Savona, which was subsequently transmitted to the Public Prosecutor, who ordered its translation into Italian on 31 January 1976.

On 1 March 1976 Mr Brozicek returned the document to the Public Prosecutor's Office with the following note (translation from the German):

"I return the enclosed document to the sender as I find it difficult to understand. In lodging my detailed complaint of 14 August - on which no action has yet been taken even though the facts complained of could have far-reaching consequences - and in all correspondence to date with the Italian authorities, I have always expressly requested that either the mother tongue of the persons concerned or one of the international official languages of the United Nations be used, in order to avoid from the outset any risk of misunderstanding."

The Public Prosecutor's Office received this letter on 3 March 1976. It did not send any reply and did not have the letter translated.

On 5 December 1978 the German postal authorities returned the letter to the sender marked "unclaimed".

The acknowledgment of receipt bore the name "Brozicek", in a different space to that provided for the addressee's signature. The Government maintained that it was the applicant's signature but he has always denied this; he claimed that he had not received the communication because he had just moved house. The expert opinion ordered by the Court (see paragraphs 5 and 8 above) did not resolve this question.

At the hearing before the European Court on 22 May 1989, the Government affirmed that the reference to further enquiries was probably an oversight. They maintained that the provision applied to the applicant was the second part of the second paragraph of Article 177 bis of the Code of Criminal Procedure (concerning an accused who has given no address for service, see paragraph 26 below), which does not require such enquiries.

The Public Prosecutor summonsed Mr Brozicek to appear for examination on 30 December 1978, but to no avail, and, on that day, he asked the President of the Savona Regional Court to commit the applicant for trial.

On 11 March 1981 the President of the Savona Court decided that any notification would be lodged with the court registry because the accused had not provided an address for service in Italy (Articles 170 and 177 bis of the Code of Criminal Procedure, see paragraph 26 below). He also appointed a lawyer to represent the accused.

After an adjournment for reasons extraneous to the proceedings, the trial took place on 1 July 1981.

On that date the applicant was convicted in absentia, sentenced to five months' imprisonment and ordered to pay the costs. The sentence was, however, suspended and no reference to the conviction was to be included in criminal-record certificates issued at the request of private individuals.

As there was no appeal, the judgment became final on 7 July 1981.

In his letter to the German Ministry he requested its assistance in securing, as soon as possible, the rectification or the annulment of the Savona judgment.

In his letter to the Italian Ministry he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him. He asked what possibilities of appealing against the decision were open to him.

On 5 October the Italian Ministry replied that he could lodge an appeal against the judgment outside the normal time-limits (hereinafter referred to as a "late appeal"; see paragraph 26 below), if the notification to him had not been lawfully made, and seek a retrial.

The applicant did not avail himself of either of these possibilities.

II. DOMESTIC LAW

A. Judicial notification

The notification must be sent by registered letter requiring acknowledgment of receipt. If the letter is not delivered because the addressee is untraceable (irreperibile), a bailiff must serve the notification in accordance with the normal procedure (Articles 168-175 of the Code of Criminal Procedure).

B. Notifications, trial in absentia (contumacia) and "late appeal" (appello apparentemente tardivo)

In this regard Article 177 bis of the Code of Criminal Procedure provides as follows (translation from the Italian):

"Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the Public Prosecutor or trial judge (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 states that (translation from the Italian):

"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 or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay of any such notification."

The possibility of lodging a "late appeal" was at the time derived from judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure, according to which (translation from the Italian):

Article 500

"In the case of in absentia proceedings, an extract of the decision or 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 decisions or 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.

 ..."

On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings, the person concerned could, within three days, contest such notification and challenge the finality of the decision in question. If he was successful in so doing, he was accorded a new time-limit within which to appeal against the said decision.

The new Code of Criminal Procedure, which came into force on 24 October 1989, now makes express provision for this possibility of "re-establishing the time-limit".

PROCEEDINGS BEFORE THE COMMISSION

A. Admissibility

The second limb of the Government's submission does not satisfy this requirement as regards the possibility of relying on Article 10 of the Constitution. To this extent, it must therefore be dismissed as out of time (see, inter alia, the Barberà, Messegué and Jabardo judgment of 8 December 1988, Series A no. 146, p. 27, § 56).

B. The merits of the remainder of the objection

1. A "late appeal"

The Commission considered nevertheless that the shortness of the time-limit to be complied with - three days from the notification of the judgment, or from the date on which the person concerned had adequate knowledge thereof - made the exercise of such a remedy purely theoretical in the present case.

In the circumstances of the case, the Court does not consider that the appeal in question was sufficiently available. At the time, the possibility of bringing such an appeal was not expressly provided for in the legislation, but was based only on judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure in the version then in force (see paragraph 26 above). In addition, in view of the fact that the judgment of 1 July 1981 was not notified to Mr Brozicek in person,the point of time at which the three-day period for lodging notice of intention to appeal began to run was open to doubt. This was acknowledged to some extent by the Government inasmuch as they stated that it was "probable" that the dies a quo was not 5 May 1984 but a date in July 1984, when the applicant received a copy of the judgment (see paragraph 23 above).

To avoid all risk, the applicant would have had to lodge notice of his intention to appeal within the three days following 5 May, which he would have been able to do only if, within this time, he had consulted a lawyer, or some other person, conversant with Italian criminal procedural law. In the Court's view, he could not reasonably have been required to do so, especially since when he learned of his conviction the judgment had been final for a number of years.

The appeal court would have had to have declared it admissible before it was competent to review the conviction. To this end, it would have been necessary for the applicant to satisfy the appeal court that the Savona Regional Court had been wrong to conclude that he had not wanted to give an address for service in that town.

Moreover, the case-law cited by the Government does not establish that the remedy in question could have been effective in Mr Brozicek's case. In this respect, the Court refers to its Colozza judgment of 12 February 1985 (Series A no. 81, p. 16, § 31).

2. Application for review of the compatibility of Articles 170 and 177 bis of the Code of Criminal Procedure with Article 24 of the Constitution

The Court would observe that in the Italian legal system an individual is not entitled to apply directly to the Constitutional Court for a review of the constitutionality of a law. Only a court which is hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion. Accordingly, such an application cannot be a remedy whose exhaustion is required under Article 26 (art. 26) of the Convention.

Furthermore, the application would in practice have had to be attached to a "late appeal", which the Court has found not to be sufficiently available and effective in this case (see paragraphs 32-33 above).

3. The possibility of pleading the nullity of the judicial notification and other documents relating to the investigation

The Court has difficulty in seeing how he could have formulated such a complaint in the Savona Regional Court since he maintains that he was not duly informed of the proceedings instituted against him. As regards the possibility of raising the question in connection with a "late appeal", the Court refers to the last sub-paragraph of the preceding paragraph.

4. Conclusion

II. THE ALLEGED VIOLATIONS OF ARTICLE 6 (art. 6)

"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;

 ... ."

It is in the Court's view appropriate to examine in the first place the arguments based on paragraph 3 (a) (art. 6-3-a).

A. Paragraph 3 (a) (art. 6-3-a)

The Court notes that this document constituted an "accusation" within the meaning of Article 6 (art. 6) (see the Corigliano judgment of 10 December 1982, Series A no. 57, p. 14, § 35).

The judicial authorities did not reply to him. They continued to draw up the documents intended for Mr Brozicek only in Italian. They made no reference whatsoever to the language problem, except in the judgment of 1 July 1981, in which the Savona Regional Court attributed to the accused a fair knowledge (discreta padronanza) of Italian.

On receipt of this request, the Italian judicial authorities should have taken steps to comply with it so as to ensure observance of the requirements of Article 6 § 3 (a) (art. 6-3-a), unless they were in a position to establish that the applicant in fact had sufficient knowledge of Italian to understand from the notification the purport of the letter notifying him of the charges brought against him.

No such evidence appears from the documents in the file or the statements of the witnesses heard on 23 April 1989 (see paragraphs 5-7 above). On this point there has therefore been a violation of Article 6 § 3 (a) (art. 6-3-a).

B. Paragraph 1 (art. 6-1)

Again, the President of the Savona Regional Court did not seek to notify Mr Brozicek in person of the summons to appear before his court. In accordance with Italian law, he ordered that it be lodged with the court registry (see paragraph 19 above), so that Mr Brozicek was deemed to have been informed of each document relating to the proceedings and was judged in absentia.

III. APPLICATION OF 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."

Mr Brozicek first requested the Court to declare the judgment of 1 July 1981 void and to order that it be struck out of his record. However, the Court is not so empowered under the Convention (see, inter alia, the Hauschildt judgment of 24 May 1989, Series A no. 154, p. 23, § 54).

The applicant also sought compensation for damage and the reimbursement of costs and expenses.

A. Damage

He also claimed 200,000 Swiss francs for non-pecuniary damage. The Court recognises that the violations found must have caused him some degree of damage of this nature, but the finding of infringements of Article 6 (art. 6) constitutes in this case sufficient just satisfaction in this respect.

B. Costs and expenses

According to the Government, the fact that he had received legal aid meant that this claim had to be dismissed. In any event the applicant had not shown that his defence had necessitated the expenses indicated by him.

The Court also admits the fee - 1,900 Swiss francs - paid to a Swiss lawyer instructed by the applicant, after the case had been referred to the Court, to secure a friendly settlement with the respondent Government.

Finally, Mr Brozicek listed a number of expenses relating to travel, in particular to Strasbourg, photocopies, printing, telephone communications, postal charges, translation and the purchase of material. He calculated such expenses at a total of 5,260 Deutschmarks. In the Court's view, however, certain of these items were not genuinely necessary. Making an equitable assessment in accordance with Article 50 (art. 50), it awards the applicant 3,000 Deutschmarks under this head.

FOR THESE REASONS, THE COURT

1. Dismisses by fifteen votes to five the objection of non-exhaustion of domestic remedies as regards the possibility of a "late appeal";

2. Dismisses unanimously the remainder of the said objection;

3. Holds by fifteen votes to five that there has been a violation of paragraphs 3 (a) and 1 of Article 6 (art. 6-3-a, art. 6-1) of the Convention;

4. Holds unanimously, as regards the non-pecuniary damage sustained by the applicant, that the present judgment constitutes in itself adequate just satisfaction for the purposes of Article 50 (art. 50);

5. Holds unanimously that the respondent State is to pay to the applicant in respect of costs and expenses 4,027.27 Deutschmarks (four thousand and twenty-seven marks and twenty-seven pfennigs) and 1,900 (one thousand nine hundred) Swiss francs;

6. Dismisses unanimously the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 19 December 1989.

Rolv RYSSDAL

President

Marc-André EISSEN

Registrar

In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

- joint dissenting opinion of Mr Thór Vilhjálmsson, Mr Pettiti, Mr Russo, Mr De Meyer and Mr Valticos;

- separate opinion of Mr Martens.

R.R.

M.-A.E.

JOINT DISSENTING OPINION OF JUDGES THÓR VILHJÁLMSSON, PETTITI, RUSSO, DE MEYER AND VALTICOS

(Translation)

We consider that the domestic remedies were not exhausted in this case.