CASE OF TRIPODI v. ITALY
No violation of Art. 6-3-c
C. Russo;R. Pekkanen
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. 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. 19. "... "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." "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." "... 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." 20. "... The accused may not be assisted by more than two lawyers." "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. ..." 21. "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".