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You are here: BAILII >> Databases >> European Court of Human Rights >> PADOVANI v. ITALY - 13396/87 [1993] ECHR 12 (26 February 1993) URL: http://www.bailii.org/eu/cases/ECHR/1993/12.html Cite as: [1993] ECHR 12

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In the case of Padovani 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. Bernhardt, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr B. Walsh,

Mr R. Macdonald,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr J.M. Morenilla,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 25 May 1992,

25 September 1992 and 28 January 1993,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 71/1991/323/395. 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 12 July 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. 13396/87) against the Italian Republic

lodged with the Commission under Article 25 (art. 25) by

Mr Alessandro Padovani, an Italian national, on 1 July 1987.

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). On 16 August 1991 the

President of the Court authorised him to use the Italian language

(Rule 27 para. 3).

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 29 August 1991, in the

presence of the Registrar, the President drew by lot the names

of the other seven members, namely Mr Thór Vilhjálmsson,

Mr F. Gölcüklü, Mr R. Macdonald, Mr R. Bernhardt, Mr J. De Meyer,

Mr N. Valticos and Mr J.M. Morenilla (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

proceedings (Rules 37 para. 1 and 38). Pursuant to the order

made in consequence, the Registrar received the applicant's

memorial on 5 December 1991, the Government's memorial on

23 December 1991 and the observations of the Delegate of the

Commission on 24 February 1992.

5. Also on 24 February 1992 the Commission produced the file

on the proceedings before it, as requested by the Registrar on

the President's instructions.

6. On 26 February the Chamber 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).

7. On 12 March the Government filed their observations on the

applicant's claims for just satisfaction.

8. On 3 June the Registrar, acting on the Court's

instructions, asked the Government and the applicant for various

documents; these were provided on 26 and 16 July.

9. As Mr Ryssdal was unable to attend the deliberations on

28 January 1993, his place as President of the Chamber was taken

by Mr Bernhardt, the Vice-President of the Court

(Rule 21 para. 5, second sub-paragraph); Mr B. Walsh, substitute

judge, replaced Mr Ryssdal as a member of the Chamber

(Rules 22 para. 1 and 24 para. 1).

AS TO THE FACTS

I. The particular circumstances of the case

10. Mr Alessandro Padovani is a workman and lives in Bergamo.

On 21 February 1987 he was arrested by the police, who had

found certain items of stolen property in his possession. On the

same day the police brought him before the Bergamo magistrate

(pretore), who immediately after questioning him confirmed his

arrest. The magistrate also heard two other accused, Mr B. and

Mrs M., on 21 and 23 February.

11. On 26 February the magistrate issued a warrant for the

applicant's arrest, but not for that of Mr B. or Mrs M., and

initiated immediate proceedings (giudizio direttissimo) against

him and his co-accused. He set a hearing date of 2 March, and

found that there was sufficient evidence pointing to

Mr Padovani's guilt - namely the discovery of the articles in

question at his residence - and that the alleged offences were

serious, having regard inter alia to the applicant's previous

history.

12. The hearing lasted for about half an hour. The applicant

stated, as he had also done when questioned on 21 February 1987,

that he had bought the items in question from a stranger who had

told him that he needed money to pay a bill. He admitted,

however, that he had not believed this explanation, but had

thought that the vendor had stolen them from his relatives or

friends in order to obtain money to purchase drugs.

The magistrate also heard Mr B. and Mrs M. and two

witnesses. The public prosecutor's office, which was represented

by counsel as permitted in certain cases by section 72 of Royal

Decree no. 12 of 30 January 1941 on the organisation of the

courts, requested eight months' imprisonment for Mr Padovani.

The magistrate considered that the applicant had not

acquired the items in question in good faith, and imposed a

suspended sentence of one year's imprisonment and fined him

250,000 lire. The judgment was filed with the registry seven

days later, on 9 March 1987.

Mr Padovani did not appeal.

II. Relevant domestic law

13. The magistrate has jurisdiction over offences punishable

by imprisonment for up to three years or by a fine or both, and

also over a number of offences specifically mentioned in

Article 31 of the Code of Criminal Procedure (CCP) in respect of

which "a person arrested in flagrante delicto shall immediately

be brought before the magistrate to be tried".

14. Under the heading "Immediate trial procedure" (Giudizio

direttissimo), Article 505 of the former Code of Criminal

Procedure in force at the time provided as follows:

"... In the case of offences within the jurisdiction of

the magistrate (pretore), the police officers who have

arrested a person in flagrante delicto or in whose charge

an arrested person has been placed shall bring him

directly before the magistrate, shall on the latter's

instructions (even if merely oral) summon the victim and

the witnesses, and shall notify defence counsel chosen [by

the arrested person] or appointed by the court.

If the magistrate is not sitting, the police officers

who have effected the arrest or in whose charge the

arrested person has been placed shall immediately inform

the magistrate thereof and shall produce the arrested

person at a hearing, arranged by the magistrate, within

forty-eight hours from the arrest.

The magistrate before whom the arrested person is

brought shall authorise the police officer to make an oral

report and shall then question the accused in order to

confirm the arrest.

If the arrest is confirmed and the magistrate does not

consider that he should release the accused, he shall

immediately initiate proceedings according to the

direttissimo procedure.

At the request of the accused, the magistrate may grant

an adjournment of not more than five days for him to

prepare his defence.

...

The magistrate shall exercise the powers conferred on

the public prosecutor's office and the magistrate in

accordance with the preceding Articles."

Under the heading "Conduct of criminal proceedings by the

public prosecutor's office or the magistrate (pretore)",

Article 74 of the CCP stated that:

"The public prosecutor's office or, for offences within

his jurisdiction, the magistrate shall initiate or conduct

criminal proceedings following the procedure provided for

by law in accordance with Article 1.

...

The public prosecutor's office shall, if it considers

that there is no occasion to initiate criminal

proceedings, request the investigating judge to make an

order (decreto) [to this effect] ...

For the purpose mentioned in the preceding paragraph,

the magistrate shall make an order [discontinuing the

proceedings] and shall notify the public prosecutor, who

may request the file and decide to continue the

proceedings."

Article 231 provided that:

"In the case of offences within his jurisdiction, the

magistrate (pretore) shall, before making an order

committing for trial or proceeding to give judgment in

'direttissimo' proceedings or by 'decreto', order or carry

out any police measures or summary investigative measures

which he deems necessary ..."

III. The case-law of the Constitutional Court

15. The Italian Constitutional Court has had occasion to

decide on the compatibility with various provisions of the

Constitution of the magistrate's dual function of investigation

and judgment.

In two decisions, no. 61 of 24 May 1967 (Foro Italiano

1967, I, p. 1113) and no. 123 of 9 July 1970 (Foro It. 1970, I,

p. 1841), it dismissed the objections of unconstitutionality put

forward in this respect.

In a more recent decision of 15 December 1986 (no. 268,

Foro It. 1988, I, p. 1117), the Constitutional Court invited the

legislature to take account, in the context of the reform of the

Code of Criminal Procedure, of the development in legal thought

towards drawing a clear distinction between the above two

functions. It stated that in the absence of a legislative

measure it would have to reconsider its case-law.

16. The question has now been resolved, as the new code, which

came into force on 24 October 1989 and adopted the adversarial

system, provides for such a separation in respect of proceedings

in the magistrate's court. In Articles 549 to 567 it institutes

a public prosecutor's office at each magistrate's court

(pretura).

PROCEEDINGS BEFORE THE COMMISSION

17. The applicant applied to the Commission on 1 July 1987.

He complained that the magistrate had not been an impartial

tribunal and relied on Article 6 para. 1 (art. 6-1) of the

Convention.

18. The Commission declared the application (no. 13396/87)

admissible on 3 December 1990. In its report of 6 June 1991

(made under Article 31) (art. 31), it expressed the opinion, by

sixteen votes to two, that there had been a violation of

Article 6 para. 1 (art. 6-1). The full text of the Commission's

opinion and of the dissenting opinion contained in the report 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 257-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

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

19. The Government argued that the applicant had not exhausted

domestic remedies, as he had not appealed against the pretore's

judgment on the ground that he had not been impartial.

The Court finds that the objection, which was previously

raised before the Commission, is unfounded; as the magistrate

acted in accordance with the legislation in force at the time

(see paragraph 14 above), the Bergamo District Court would not

have been able to quash the judgment.

20. The Government also observed that Mr Padovani could have

asked the appellate court to refer a question relating to the

constitutionality of the said legislation to the Constitutional

Court, given the "possibilist attitude" adopted in the judgment

of 15 December 1986 (see paragraph 15 above, in fine).

This argument was not put forward before the Commission

and is subject to estoppel (see, inter alia, the Ciulla v. Italy

judgment of 22 February 1989, Series A no. 148, p. 14,

paras. 27-29). In any event, an individual is not entitled to

apply directly to the Italian Constitutional Court for a review

of the constitutionality of a law, so that he does not have

available to him in this respect a remedy whose exhaustion is

required under Article 26 (art. 26) of the Convention (see the

Brozicek v. Italy judgment of 19 December 1989, Series A no. 167,

pp. 16-17, para. 34).

II. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)

21. Mr Padovani alleged that he had not received a hearing

before an "impartial tribunal" within the meaning of

Article 6 para. 1 (art. 6-1), which states that:

"In the determination ... of any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

... impartial tribunal ..."

22. The Commission agreed in essence with this argument. It

considered that, irrespective of the pretore's actual conduct in

concreto, the functions of investigation and judgment were

fundamentally incompatible.

23. The Government argued, on the other hand, that the pretore

could not be criticised as having lacked impartiality. He had

intervened at a stage prior to the hearing, and had used only the

powers expressly conferred on him by the law in the context of

a special procedure inspired by concern for speed and simplicity.

24. The Court points out that its task is not to review the

relevant law and practice in abstracto, but to determine whether

the manner in which they were applied to or affected the

applicant gave rise to a violation of Article 6 para. 1

(art. 6-1) (see, inter alia, the Hauschildt v. Denmark judgment

of 24 May 1989, Series A no. 154, p. 21, para. 45).

25. The existence of impartiality for the purposes of

Article 6 para. 1 (art. 6-1) must be determined according to a

subjective test, that is on the basis of the personal conviction

of a particular judge in a given case, and also according to an

objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this

respect (ibid., para. 46).

26. As to the subjective test, the personal impartiality of a

judge must be presumed until there is proof to the contrary

(ibid., para. 47), and no evidence has been produced which might

suggest bias on the part of the magistrate.

27. As to the objective test, it must be determined whether,

quite apart from the judge's conduct, there are ascertainable

facts which may raise doubts as to his impartiality. In this

respect even appearances may be of a certain importance. What

is at stake is the confidence which the courts in a democratic

society must inspire in the public and above all, as far as

criminal proceedings are concerned, in the accused.

It follows that in deciding whether in a given case there

is a legitimate reason to fear that a particular judge lacks

impartiality, the standpoint of the accused is important but not

decisive. What is decisive is whether this fear can be regarded

as objectively justified (ibid., para. 48).

28. In the instant case the fear of lack of impartiality was

based on the fact that the pretore had before the trial

questioned the applicant, taken measures restricting his liberty

and summoned him to appear before him (see paragraphs 10-11

above).

Although such a situation could occasion misgivings on the

part of the applicant, they cannot for all that be regarded as

objectively justified.

The information obtained by the Court (see paragraph 8

above) in fact shows that the summary investigative measures

referred to in paragraph 16 of the Commission's report consisted

in the present case merely of questioning the three accused, even

though under Article 231 of the Code of Criminal Procedure the

magistrate could have carried out further measures (see

paragraph 14 above, in fine). It also appears that in issuing

the arrest warrant of 26 February 1987, the magistrate relied

inter alia on Mr Padovani's own statements (see paragraphs 11-12

above and the Sainte-Marie v. France judgment of

16 December 1992, Series A no. 253-A, p. 16, para. 33).

The Court notes in addition that the pretore followed

specific rules applicable to flagrante delicto cases within his

jurisdiction. Giudizio direttissimo is a flexible procedure

which seeks to satisfy the "reasonable time" requirement.

29. There has therefore not been a violation of

Article 6 para. 1 (art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Dismisses the objection of failure to exhaust domestic

remedies;

2. Holds that there has not been a violation of

Article 6 para. 1 (art. 6-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on

26 February 1993.

Signed: Rudolf BERNHARDT

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

concurring opinion of Mr De Meyer is annexed to this judgment.

Initialled: R. B.

Initialled: M.-A. E.

CONCURRING OPINION OF JUDGE DE MEYER

(Translation)

In common with the other members of the Chamber, I am of

the opinion that in the particular circumstances of the case the

applicant's fundamental rights were not violated.

Like the Fey case1, which was decided by a different

Chamber, the present case demonstrates the difficulties which may

arise in applying the principles stated by the Court since the

Piersack2 and De Cubber3 judgments, with respect to the

successive exercise by a judge of different functions. Further

thought appears to be called for on this subject.

The question also arises more generally whether the Court

is not sometimes more sensitive to appearances than to reality

when considering the independence and impartiality of tribunals.

_______________

1. Fey v. Austria judgment of 24 February 1993, Series A no. 255.

2. Piersack v. Belgium judgment of 1 October 1982, Series A

no. 53.

3. De Cubber v. Belgium judgment of 26 October 1984, Series A

no. 86.

_______________