CASE OF COLOZZA v. ITALY
Violation of Art. 6-1;Non-pecuniary damage - financial award
C. Russo
9. Mr. Giacinto Colozza was born in 1924 and died in 1983. He was an Italian citizen and lived in Rome. 10. On 20 June 1972, the carabinieri reported the applicant to the Rome public prosecutor’s office for various alleged offences, including fraud, committed before November 1971. They said that they had not questioned the suspect because they had failed to contact him at his last-known address. In fact, his flat, in via Longanesi, had been closed and his furniture seized by the judicial authorities; the manager of the building, who was also the administrator appointed by the court in the attachment proceedings, was unaware of Mr. Colozza’s new address. On 4 October 1973, the investigating judge issued a "judicial notification" (comunicazione giudiziaria) intended to inform the applicant of the opening of criminal proceedings against him. A bailiff attempted to serve it on Mr. Colozza at the address - via Fonteiana - shown in the Registrar-General’s records, but without success: he had moved - about ten years earlier according to the carabinieri and five years earlier according to the police - and had omitted to inform the City Hall of his change of residence as required by law. 11. Meanwhile Mr. Colozza, when renewing his driving licence in September 1973, had given, as his current address, that shown in the Registrar-General’s records (via Fonteiana). 12. On 14 November 1973, after unsuccessful searches at the latter address, the investigating judge declared the accused untraceable (irreperibile), appointed an official defence lawyer for him and continued the investigations. Thereafter, in pursuance of Article 170 of the Code of Criminal Procedure (see paragraph 19 below), all the documents which had to be served on the applicant were lodged in the registry of the investigating judge, the defence counsel being informed in each case. On 12 November 1974 and 30 May and 3 June 1975, the investigating judge issued three arrest warrants which were not executed because the competent authorities still did not know where Mr. Colozza was living. It should, however, be noted that the address indicated on the warrants was via Longanesi. On each occasion, the carabinieri drew up a report of fruitless searches (vane ricerche). Mr. Colozza was thenceforth regarded as "latitante", that is as a person wilfully evading the execution of a warrant issued by a court (see paragraph 20 below). 13. By a decision of 9 August 1975, the applicant was committed for trial. A first hearing was held by the Rome Regional Court on 6 May 1976. Although he had been informed of the lodging of the summons to appear (see paragraph 12 above), the accused’s officially-appointed defence counsel did not appear, with the result that the court had to appoint a replacement and postponed the hearings until 26 November. On that date, a new lawyer was officially assigned, because the one appointed on 6 May did not appear either. The court adjourned the trial and concluded it on 17 December 1976, after appointing, during the sitting and again for the same reason, another official defence lawyer. It sentenced Mr. Colozza to six years’ imprisonment (reclusione) and a fine (multa) of 600,000 Lire. The public prosecutor had called for sentences of five years’ imprisonment and a fine of 2,000,000 Lire and the officially-appointed defence counsel had agreed with his submissions. The judgment was lodged in the registry on 29 December 1976 and a copy was served on the lawyer. It became final on 16 January 1977, as he had not entered an appeal. 14. On 20 May 1977, the public prosecutor’s office issued an arrest warrant. The applicant was arrested at his home in Rome, 31 via Pian Due Torri, on the following 24 September. On the next day, he raised a "procedural objection" (incidente d’esecuzione) as regards this warrant and at the same time filed a "late appeal" (appello apparentemente tardivo; see paragraph 23 below). He appointed a lawyer and instructed him to draft the grounds of appeal. However, he submitted them himself on 24 December 1977 and lodged a supplementary memorial on 25 July 1978. On 15 November and 28 December 1977, he appointed new lawyers. 15. On 29 April 1978, the Rome Regional Court dismissed the "procedural objection" and ordered that the papers be sent to the Rome Court of Appeal for a ruling on the "late appeal". Mr. Colozza maintained that he had been wrongly declared "latitante" and that the notifications of the summons to appear and of the extract from the judgment rendered by default were therefore null and void. He explained that, as he had received notice to quit from his landlord at the end of 1971, he had left his flat in via Fonteiana and, before finding a new one, had lived in a hotel. He pointed out that his new address (via Pian Due Torri) was known to the police since, on 12 March 1977, they had summoned him to the local police station for questioning; the same applied both to the Rome public prosecutor’s office, which, on 7 October 1976 (that is to say, almost two months before adoption of the judgment), had sent him a "judicial notification" concerning other criminal proceedings, and to various public authorities, which had served documents on him, using the notification service of the Rome City Hall. 16. Mr. Colozza’s appeal was examined together with an appeal that had been entered by his co-accused. The Court of Appeal heard Mr. Colozza both on the merits of the case and on the fact that he had been treated as "latitante". The public prosecutor attached to the Court of Appeal also submitted that the judgment of 17 December 1976 should be set aside; in his view, Mr. Colozza should not have been regarded as "latitante". On 10 November 1978, the Court of Appeal confirmed the conviction of the co-accused. As to Mr. Colozza, it held that his appeal was inadmissible for failure to observe time-limits. It ruled that the time-limit for filing the grounds of appeal - twenty days, under Article 201 of the Code of Criminal Procedure - had begun to run on 13 October 1977, the date on which the arrest warrant had been served, whereas the memorial had not been submitted until 24 December 1977. 17. Mr. Colozza lodged an appeal on points of law but it was dismissed by the Court of Cassation on 5 November 1979. It accepted that the Court of Appeal had wrongly declared the "late appeal" inadmissible for failure to file the grounds in time: it should first have determined whether, as the appellant alleged, the first-instance proceedings were void. However, the Court of Cassation concluded that this was not so: it considered that Mr. Colozza had rightly been declared first to be "irreperibile" and then to be "latitante". It added that the Court of Appeal should have declared the appeal inadmissible as out of time, since it had been lodged at a time when the judgment under appeal had already become final. Mr. Colozza, who had been in custody since 23 September 1977 to serve his sentence, as well as other suspended sentences previously passed on him, died in prison on 2 December 1983 (see paragraph 6 above). 18. The Code of Criminal Procedure lays down the methods for notifying an accused person who is not in custody of the various documents pertaining to the investigations and the trial. When the first procedural step involving the presence of such an accused is taken, the court, the public prosecutor’s office or the official of the criminal investigation department must ask the accused to indicate the place where notifications should be made or to elect an address for service (Article 171, first paragraph). If he does not do so, Article 169 applies; this provides, inter alia, that if the first notification cannot be made to the party concerned in person, it is to be delivered, at his place of residence or of work, to a person living with him or to the caretaker. If those two places are not known, notification is to be left where the party concerned is living temporarily or has an address, by delivery to one of the above-mentioned persons. 19. The Code of Criminal Procedure does not define the concept of "irreperibile". Nevertheless, according to the relevant rules, it may apply to any person on whom a document concerning criminal proceedings opened against him has to be served and whom it has not been possible to trace because his address was unknown. The mere establishment of this fact - the question whether there has been a wilful evasion of the investigations being irrelevant in this context - is enough for this purpose. According to Article 170, the bailiff has to inform the judge who ordered the notification. The latter, after directing that further searches be conducted at the place of birth or last residence, will then issue a decree (decreto) to the effect that notifications shall be effected by being lodged in the registry of the court before which proceedings are in progress. The defence lawyer must be informed immediately whenever a document is so lodged; if the accused has no lawyer, the court has to assign one to him officially. 20. This system of notification is also used if the accused is "latitante" (Article 173). According to the first paragraph of Article 268, any person wilfully evading execution of, inter alia, an arrest warrant shall be regarded as being "latitante". The third paragraph states that whenever classification as "latitante" entails legal consequences, these are to extend to the other proceedings instituted against the person in question. If he does not have a lawyer of his own choosing, an official appointment will be made. The Court of Cassation has consistently held that an intention to evade arrest is to be presumed where adequate searches by the criminal investigation police have been unsuccessful. This presumption exists even if the person in question, after moving and failing to make the statutory declaration of change of residence, has not resorted to any special subterfuges to avoid arrest (3rd Criminal Chamber, 12 March 1973, no. 559, Repertorio 1974, no. 3440; 6th Criminal Chamber, 20 October 1971, no. 3195, Repertorio 1973, no. 4897; Massimario delle decisioni penali, 1972, no. 1959). In its judgment no. 98 of 2 June 1977, the Constitutional Court specified, however, that the presumption can be rebutted and is thus not irrefutable. The term "adequate searches" leaves the criminal investigation police with a measure of discretion as to the steps to be taken; this discretion is however limited, in that the person concerned must be sought at the residence indicated in the arrest warrant (2nd Criminal Chamber, 19 October 1978, no. 12698, massima no. 140224). 21. Although trial by "contumacia" (by default; Articles 497 to 501 of the Code of Criminal Procedure) is classified as a special form of proceedings, the ordinary procedure is followed (Article 499, first paragraph). Such a trial is held when the accused, after being duly summoned, does not appear at the hearing and neither requests nor agrees that it take place in his absence. 22. Under Italian law, an accused who fails to appear (contumace) has the same rights as an accused who is present. He is, for example, entitled to be defended by a lawyer - who will be officially assigned to him by the court if he has not chosen one himself - and to lodge an ordinary appeal or an appeal on points of law against the judgment concerning him. The time-limit for entering such an appeal begins to run only from the day on which he was notified of the decision by means of service of an extract from the judgment. However, in the case of a person who has also been declared to be "irreperibile" or "latitante", time begins to run from the date of the lodging of the judgment in the registry of the court that rendered it. 23. According to Italian case-law, individuals who have not entered an appeal and who consider that the notification of the judgment was irregular can lodge a "late appeal". The time-limits to be observed are the same as for the ordinary appeal (three days for giving notice of appeal and twenty days for submitting the grounds), but both start to run from the date when the person in question had knowledge of the judgment. Nevertheless, in the case of a person regarded as "latitante" the court hearing the appeal can determine the merits of the criminal charge only if it finds that there has been a failure to comply with the rules governing declarations that an accused is "latitante" or governing service on him of the documents in the proceedings; in addition, it is for the person concerned to prove that he was not seeking to evade justice. 24. Article 185 of the Code of Criminal Procedure provides, inter alia, that proceedings shall be null and void if the rules on the participation, assistance and representation of the accused have not been observed. Failure to serve a summons to appear at the hearing and the absence, at that stage, of the accused’s defence counsel constitute grounds of incurable nullity, of which the court must take notice of its own motion at any point in the proceedings.