CASE OF HERMI v. ITALY
No violation of Art. 6
Alvina Gyulumyan;Anatoly Kovler;András Baka;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabeth Steiner;Giovanni Bonello;Ineta Ziemele;Javier Borrego Borrego;Jean-Paul Costa;John Hedigan;Josep Casadevall;Khanlar Hajiyev;Lech Garlicki;Luzius Wildhaber;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Stanislav Pavlovschi;Vladimiro Zagrebelsky
11. The applicant was born in 1969 and is currently serving a sentence in Viterbo Prison. 12. On 28 November 1999 the applicant was discovered in possession of a package containing 485 grams of heroin and was arrested by the Rome carabinieri. Proceedings were instituted against him for drug trafficking. On 23 December 1999 the applicant appointed two lawyers of his own choosing, Mr M. Marini and Mrs D. Puccinelli. 13. A hearing was held in private before the Rome preliminary hearings judge (giudice dell’udienza preliminare) on 25 February 2000, attended by the applicant and his two lawyers. The record of the hearing shows that there was no interpreter present. The applicant stated that he understood the content of the charge and the evidence against him and could speak Italian. He subsequently requested adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). His lawyers requested that their client’s detention pending trial be replaced by house arrest (arresti domiciliari). The preliminary hearings judge, taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage (allo stato degli atti), ordered that the summary procedure be adopted and adjourned the proceedings. 14. A further hearing was held in private on 24 March 2000, at which the applicant and his two lawyers were present. The record of the hearing states that the applicant “speaks Italian” (si da atto che parla la lingua italiana). One of the applicant’s lawyers requested that his client be released on the ground that the drugs in his possession had been intended for his personal use. In the alternative, he requested that his client’s detention pending trial be replaced by a less stringent security measure. The requests were rejected by the preliminary hearings judge. 15. In a judgment of 24 March 2000, the Rome preliminary hearings judge sentenced the applicant to six years’ imprisonment and a fine of 40 million Italian lire (approximately 20,658 euros). He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs. At the time of his arrest, the applicant had just purchased a quantity corresponding to more than 8,000 average daily doses. 16. The applicant appealed against the judgment, reiterating the arguments adduced at first instance. He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the Constitution. 17. On 1 September 2000 Mr Marini was informed that the hearing had been set down for 3 November 2000. The applicant, who was in Rome Prison, was notified on the same day. He received a letter entitled “Notice to appear in appeal proceedings before the court sitting in private” (decreto di citazione per il giudizio di appello davanti la Corte in camera di consiglio), the relevant parts of which read: “The President ... of the Court of Appeal ... in view of the notice of appeal lodged by (1) Pacilyanathan Basilaran, born [in] Sri Lanka on 1 November 1964, who is [in] Vasto Prison and (2) Hermi Fauzi [sic], born [in] Tunisia on 27 January 1969, who is [in] Regina Coeli Prison ... against the judgment of the Rome preliminary hearings judge of 24 March 2000 convicting them as [set out] in the official record[;] whereas in the appeal proceedings the court must sit in private as the circumstances are those provided for in Articles 443 § 4 [and] 599 § 1 of the CCP ...; having regard to Article 601 of the aforementioned Code of Criminal Procedure; gives notice to the abovementioned [persons] to appear at the hearing which the Court of Appeal ... is to hold in private on 3 November 2000, at 9 a.m., to rule on the above appeal. The appellants may, up to five days before the hearing and through the intermediary of [their] lawyers, examine at the registry the records and documents and ... make a copy of and consult them ...” 18. Between 1 September 2000 and the day of the hearing, the applicant had no contact with his lawyers. 19. On 23 October 2000 the applicant’s lawyers filed pleadings with the registry of the Rome Court of Appeal. They submitted that there was no proof that the drugs in the applicant’s possession had been intended for sale; the judges should therefore have accepted the applicant’s assertion that they had been for his own personal use. Moreover, the expert chemical analysis of the drugs had been performed by the police without the defendant’s lawyer being present, and was therefore null and void. The firstinstance judge had also omitted to rule on the objection of unconstitutionality raised by the defence. In the alternative, the lawyers requested a reduction of the applicant’s sentence. 20. At the hearing on 3 November 2000, Mr Marini requested an adjournment of the hearing on the ground that Mrs Puccinelli, the applicant’s other lawyer, was ill. The Court of Appeal dismissed the request. Mr Marini then objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room. The Rome Court of Appeal dismissed his request, observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings. 21. In a judgment of 3 November 2000, the Court of Appeal upheld the judgment at first instance. 22. The applicant appealed on points of law. He alleged, inter alia, that the appeal judges had not allowed him to attend his trial and that the notice to appear at the appeal hearing had not been translated into Arabic. 23. In his final submissions, the public prosecutor requested that the impugned decision be set aside. 24. In a judgment of 24 January 2002, the Court of Cassation dismissed the applicant’s appeal. It observed that neither the Convention nor the CCP required procedural documents to be translated into the language of a non-national defendant in Italy. However, the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings. As to the other complaints, the Court of Cassation observed that the presence of the defendant was not required under the summary procedure, the adoption of which had been requested by the applicant himself of his own volition. Furthermore, the applicant had not made clear his wish to participate in the appeal hearing. 25. On 4 July 2003 the Rome court responsible for the execution of sentences granted the applicant leave to serve the remainder of his sentence under house arrest. On 10 July 2003 the applicant left Frosinone Prison. On that occasion he signed a report setting out the terms of his house arrest and elected to reside in a property (tenuta) belonging to one of his lawyers. He subsequently returned to Viterbo Prison. 26. The documents produced by the Government before the Grand Chamber show that the applicant was first identified by the Rome police authorities (Questura) on 15 September 1990 in connection with an investigation into drug trafficking. His fingerprints were taken by the authorities on at least seven subsequent occasions: on 18 January and 27 February 1991, 5 May and 7 September 1992, 15 January 1993, and 31 January and 26 April 1999. On the last occasion, the applicant was arrested driving a stolen vehicle, which he told the carabinieri he had taken a week previously. During the subsequent criminal proceedings against him for theft and driving without a licence, the applicant declared his address and reserved the right to appoint a lawyer. The applicant later sent two handwritten letters to the Viterbo court responsible for the execution of sentences. The letters, dated 20 July and 25 November 2005, were written in Italian and signed by the applicant. In the first, which was two pages long, the applicant complained of the refusal to grant his application for leave of absence. In the second, consisting of a single page, he requested an alternative measure to detention (semilibertà). The applicant had also sent a handwritten letter to the Court of Cassation in March 2004, and on 29 June 2003 had written a short note in Italian to his lawyer. 27. The summary procedure is governed by Articles 438 and 441 to 443 of the CCP. It is based on the assumption that the case can be decided at the preliminary hearing on the basis of the case file as it stands (allo stato degli atti). When the summary procedure is adopted, the hearing takes place in private and is devoted to hearing the arguments of the parties. As a rule, with the exception of cases in which the defendant requests the admission of fresh evidence (integrazione probatoria), the parties must base their arguments on the documents contained in the file held by the Public Prosecutor’s Office. If the judge decides to convict the defendant, the sentence is reduced by one-third. The judgment is delivered in private. 28. The relevant parts of the provisions of the CCP governing the summary procedure, as amended by Law no. 479 of 16 December 1999, read as follows. Article 438 “1. The defendant may request that the case be decided at the preliminary hearing on the basis of the case file as it stands ... 2. The request may be made, orally or in writing, until such time as the final submissions have been made under Articles 421 and 422. 3. The wishes of the defendant shall be expressed in person or through the intermediary of a specially instructed representative [per mezzo di procuratore speciale]. The signature on the instruction shall be authenticated by means of the formalities detailed in Article 583 § 3 [by a notary, another authorised person or counsel for the defence]. 4. The judge shall give a decision on the request in the order adopting the summary procedure. 5. The defendant ... may make his request subject to the admission of new evidence necessary for the court to reach a decision. The judge shall adopt the summary procedure if the admission of such evidence is necessary for a decision to be reached and is compatible with the aim of economy inherent in the procedure, taking into account the documents already before the court which can be used. In such cases the prosecution may request the admission of rebutting evidence. ... ...” Article 441 “1. The summary procedure shall follow the provisions laid down concerning preliminary hearings, in so far as they can be applied, with the exception of Articles 422 and 423 [provisions governing the power of the judge to order of his own motion the production of crucial evidence and the possibility for the prosecution to amend the charge]. ... 3. The summary proceedings shall be conducted in private. The judge shall order the proceedings to be conducted at a public hearing if all the defendants so request. ... 5. Where the judge considers that the case cannot be determined as it stands he shall acquire (assume) of his own motion the evidence necessary for a decision to be reached. In such cases, Article 423 shall apply. 6. For the purposes of the production of the evidence [referred to] in paragraph 5 of the present Article and in Article 438 § 5, the arrangements adopted shall be those set forth in Article 422 §§ 2, 3 and 4 [these paragraphs permit the parties to put questions to the witnesses and expert witnesses through the intermediary of the judge and give the defendant the right to request that he be questioned].” Article 442 “1. Once the arguments have been heard, the judge shall take a decision under the terms of Articles 529 et seq. [these provisions concern discharge, acquittal and conviction]. 1 bis. The judge’s deliberations shall be based on the documents contained in the file [referred to] in Article 416 § 2 [the file held by the Public Prosecutor’s Office on the steps taken in the preliminary investigation], the documents [indicated] in Article 419 § 3 [relating to the steps in the investigation taken after the defendant was committed for trial] and the evidence adduced at the hearing. 2. If the defendant is convicted, the sentence imposed by the judge in the light of all the circumstances shall be reduced by one-third. Life imprisonment shall be replaced by thirty years’ imprisonment. Life imprisonment with solitary confinement ... shall be replaced by life imprisonment. 3. The judgment shall be served on the defendant if he or she was not present. ...” Article 443 “1. The defendant and the prosecution may not appeal against an acquittal if the object of the appeal is to secure a different form [of acquittal]. ... 3. The prosecution may not lodge an appeal against a conviction unless the judgment alters the legal characterisation of the offence [il titolo del reato]. 4. The appeal proceedings shall be conducted in accordance with the provisions of Article 599.” 29. Article 597 § 1 of the CCP states: “The appeal judge shall be empowered to rule [la cognizione del procedimento] solely [limitatamente] on those aspects of the decision referred to in the grounds of appeal.” 30. The relevant parts of Article 603 §§ 1 and 2 of the CCP read as follows: “1. Where one of the parties, in the grounds of appeal, ... has requested the admission of evidence already produced at first instance or of new evidence, the judge, if he considers that he is unable to determine the case as it stands [se ritiene di non essere in grado di decidere allo stato degli atti], shall order the investigation to be reopened. 2. If fresh evidence has come to light or [has been] discovered since the proceedings at first instance, the judge shall order the investigation to be reopened within the limits laid down by Article 495 § 1 [exclusion of evidence which is prohibited by law, manifestly superfluous or of no relevance to the proceedings].” 31. As indicated in the reference contained in Article 443 § 4 of the CCP (see paragraph 28 in fine above), when an appeal is lodged under the summary procedure, the second-instance proceedings are conducted in accordance with the provisions of Article 599 of the CCP. The relevant parts of Article 599 read as follows: “1. When an appeal relates solely to the type or severity of the sentence, ... the court shall sit in private in accordance with the arrangements set forth in Article 127. 2. The hearing shall be adjourned if a defendant who has expressed a wish to appear has a legitimate reason for not attending. 3. In cases where the investigation is reopened after the appeal proceedings have begun, the judge shall take the evidence in private, in accordance with Article 603. The prosecution and defence counsel must be present. If the latter is not present when the reopening of the investigation is ordered, the judge shall set down a further hearing and shall order a copy of his decision to be forwarded to the prosecuting authorities and served on counsel for the defence. ...” 32. The overall arrangements for conducting hearings in private are set out in Article 127 of the CCP, which reads as follows. “When proceedings must be held in private, the judge or the president of the chamber shall set down the hearing and serve notice of it on the parties, other interested persons and counsel for the defence. The notice shall be forwarded or served at least ten days before the date chosen. If the defendant has no counsel, the notice shall be sent to the officially appointed defence lawyer. 2. Memorials may be filed with the registry up to five days before the hearing. 3. Evidence shall be heard from the prosecution, the other recipients of the notice and the defence counsel if they appear at the hearing. If the person concerned is detained or imprisoned in a place outside the jurisdiction of the court and so requests, evidence must be taken from him before the date of the hearing by the judge responsible for the execution of sentences in that place. 4. The hearing shall be adjourned if a defendant or convicted person who has requested leave to give evidence in person and who is not detained or imprisoned in a place outside the court’s jurisdiction has a legitimate reason for not attending. 5. Failure to comply with the provisions of paragraphs 1, 3 and 4 shall render the proceedings null and void. 6. The hearing shall be conducted in camera. 7. The judge shall rule by means of an order to be served on or forwarded to the persons indicated in paragraph 1 as soon as possible. The persons concerned may lodge an appeal on points of law. 8. Enforcement of the order shall not be stayed pending the appeal, unless the judge who issued the order decides otherwise by means of a reasoned decision [con decreto motivato]. 9. A decision to declare the notice of appeal inadmissible shall be issued by the judge in the form of an order and without the need for procedural formalities, unless otherwise provided. The provisions of paragraphs 7 and 8 shall apply. 10. The record of the hearing shall be drafted, as a general rule, in the form of a summary in accordance with Article 140 § 2.” 33. The Court of Cassation has ruled that this provision applies to appeal hearings under the summary procedure. In particular, in its judgment no. 6665 of 24 April 1995 in the Visciano case, it articulated the following legal principle: “A defendant who is in prison or under house arrest must also be given a hearing ... in appeal proceedings against a judgment given [following] summary proceedings in accordance with Article 442 of the CCP, but only if he or she so requests within the time-limit laid down by Article 127 § 2 of the CCP (that is, at least five days before the hearing), in accordance with the reference in the last paragraph of Article 443 of the CCP to Article 590, the first paragraph of which refers, in turn, to the ‘formalities provided for in Article 127’ for proceedings conducted in private.”