CASE OF FRANCESCO SESSA v. ITALY [Extracts]
Remainder inadmissible;No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief)
András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicant was born in 1955 and lives in Naples. 6. The applicant is Jewish and a lawyer by profession. On 7 June 2005 he appeared before the Forli investigating judge at a hearing concerning a request for the immediate production of evidence (“incidente probatorio”) in his capacity as representative of one of the two complainants in criminal proceedings against several banks. The investigating judge in charge of the case was prevented from sitting and his replacement invited the parties to choose between two dates for the adjourned hearing – either 13 or 18 October 2005 – already identified by the investigating judge. 7. The applicant pointed out that both dates coincided with Jewish religious holidays (Yom Kippur and Sukkot respectively) and stated that he would be unable to attend the adjourned hearing because of his religious obligations. He explained that he was a member of the Naples Jewish community, and alleged a breach of sections 4 and 5 of Law no. 101 of 8 March 1989 governing relations between the State and the Union of Italian Jewish communities. 8. The investigating judge set the hearing down for 13 October 2005. 9. The same day the applicant lodged an application with the investigating judge in charge of the case to have the hearing adjourned. On 20 June 2005, after examining the application, the judge decided to add it to the case file without ruling on it. 10. On 11 July 2005 the applicant lodged a criminal complaint against the investigating judge in charge of the case and his replacement, alleging that they had breached section 2 of Law no. 101 of 1989. The same day he informed the Supreme Council of the Judiciary about the complaint. 11. At the hearing of 13 October 2005, the investigating judge noted that the applicant was absent for “personal reasons” and asked the parties to express their views on the application for an adjournment made on 7 June. The prosecution and counsel for the defendants objected to the application, arguing in particular that it was not based on any of the statutory grounds for adjournment. However, counsel for the other complainant supported the applicant’s request. 12. In an order issued the same day the investigating judge rejected the application for an adjournment. He noted at the outset that, under Article 401 of the Code of Criminal Procedure, only the prosecution and counsel for the defendant were required to be present at hearings concerning the immediate production of evidence; the presence of counsel for the complainant was optional. He went on to observe that the Code of Criminal Procedure did not oblige the judge to adjourn a hearing where counsel for the complainant had legitimate reasons for being unable to appear. Lastly, he stressed that a large number of individuals were involved in the proceedings (the defendants, the complainants, court-appointed experts and experts appointed by the parties) and that, “in view of the heavy workload of the office, which would [have meant] adjourning the hearing until 2006, the application, submitted by an individual with no legitimate reason to request an adjournment, ha[d] to be rejected in accordance with the principle that cases should be heard within a reasonable time”. 13. On 23 January 2006 the Supreme Council of the Judiciary informed the applicant that it was not competent to examine the matter since the applicant’s complaints related to the exercise of judicial activity. 14. In the meantime, on 9 January 2006, the Ancona public prosecutor’s office had requested that no further action be taken on the applicant’s complaint. The applicant objected to this request on 28 January 2006. 15. On 21 September 2006 the Ancona investigating judge made an order discontinuing the proceedings concerning the applicant’s complaint, noting that the applicant had not objected to the request for no further action submitted by the public prosecutor’s office. 16. On 19 January 2007 the applicant lodged an appeal on points of law, complaining of the investigating judge’s failure to take account of the objection he had lodged on 28 January 2006. The Court of Cassation, observing that the failure to take the applicant’s objection into account had probably been due to a registry error, set aside the order of 21 September 2006 and referred the case back to the Ancona District Court. 17. On 12 February 2008 the applicant and the prosecution attended a hearing before the Ancona investigating judge. On 15 February 2008 the latter issued an order discontinuing the proceedings. He noted that there was nothing in the case file to suggest that the investigating judge in charge of the case or the judge who had replaced him at the hearing of 7 June 2005 had had any intention of infringing the applicant’s right to practise his Jewish faith freely or of offending the applicant’s dignity on account of his religious faith. 18. Law no. 101 of 8 March 1989 contains provisions governing relations between the State and the Union of Italian Jewish communities. Section 2 recognises the right to practise and manifest the Jewish religion freely. Under section 4, Italy grants persons of Jewish faith who so request the right to observe the Sabbath, in the context of flexible working arrangements and without prejudice to the requirements of the essential services provided for by the State legal system. Section 5 of Law no. 101 states that Yom Kippur, Sukkot and other Jewish religious holidays are to be treated in the same way as the Sabbath. 19. According to the fifth paragraph of section 2 of the Law, manifestations of religious intolerance and prejudice are punishable by the penalties provided for in section 3 of Law no. 654 of 1975, which is the Law ratifying the International Convention on the Elimination of all Forms of Racial Discrimination. Under the latter provision, anyone who disseminates ideas based on superiority or on racial or ethnic hatred, or incites others to commit acts of racial, ethnic, national or religious discrimination, is liable to a prison sentence of up to eighteen months. 20. The first paragraph of Article 401 of the Code of Criminal Procedure, which governs the procedure for the immediate production of evidence (“incidente probatorio”) reads as follows: “The hearing shall take place in private. The public prosecutor and counsel for the defendant shall be required to attend. Counsel for the injured party shall also have the option of attending.”