CASE OF T. v. ITALY
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
C. Russo;R. Pekkanen
8. On 19 May 1982 Mr T.’s minor daughter, who was at the time aged fourteen, lodged a complaint with the Genoa public prosecutor’s office, which opened an investigation concerning T. in connection with an alleged rape. On 15 February 1983 it sent to him in Jeddah (Saudi Arabia) a "judicial notification" advising him that proceedings had been instituted and inviting him to provide an address for service in Italy. The applicant claims that he did not receive the notification in question because on 13 February he had left Jeddah, where he had worked for a time, for Khartoum (Sudan). He had, moreover, visited the Italian Embassy there to report his change of address. 9. On 26 November 1983 the investigating judge declared the applicant untraceable (irreperibile) and designated a lawyer to act for him. Thereafter all the documents which were to be notified to the applicant were lodged with the registry, his lawyer being informed thereof on each occasion. 10. On 13 December 1983 the investigating judge issued a warrant for Mr T.’s arrest, which was not executed as his whereabouts were unknown. In a report of 10 January 1984 the police noted that the applicant did not live at the place indicated. 11. After the investigating judge had committed the applicant for trial, the President of the Genoa District Court instructed the police to undertake new inquiries. On 25 September 1984 they drew up a report stating that their inquiries had proved unsuccessful; they advised the judge that, according to the information which they had obtained, the accused had found employment in the Sudan. The President in his turn declared Mr T. untraceable. 12. On 9 October 1984 the Genoa District Court convicted Mr T. in absentia and sentenced him to seven years’ imprisonment, to be stripped of his civic rights and to accessory penalties. 13. As the officially-appointed lawyer had appealed, the police made further attempts to find Mr T., but to no avail (reports of 20 March and 7 July 1986), with the result that he was again declared untraceable. On 1 October 1986 the Genoa Court of Appeal upheld the contested judgment. The decision was notified to the applicant in the manner provided for in Article 500 of the Code of Criminal Procedure in force at the material time (see paragraph 21 below) because according to a police report of 7 November 1986 the applicant was still untraceable. No appeal was filed in the Court of Cassation. 14. On 4 March 1987 the Genoa public prosecutor’s office issued a warrant for Mr T.’s arrest. On 20 August he was arrested in Copenhagen, on the premises of the Italian Embassy; he was extradited on 29 October. On his arrival in his country he received notification of his conviction and sentence and on 3 November 1987 the arrest warrant of 4 March was served on him. 15. On 5 November he lodged an objection to the execution of the warrant (incidente d’esecuzione). He complained that he had been convicted without being able to defend himself, despite the fact that the competent authorities had known his address. The Genoa District Court dismissed his objection on 17 December. It considered that the applicant had been duly informed of the proceedings against him and that he had, in any case, been aware of them; this was shown in particular by a letter he had written to his wife on 30 September 1983. The applicant filed an appeal on points of law, which the Genoa District Court found inadmissible on 10 March 1988 on the ground that no submissions had been lodged in support of it. Mr T. maintains that he was not given legal assistance to formulate such submissions. Following a second appeal on points of law the Court of Cassation confirmed the finding of inadmissibility on 20 May 1988. It added that Mr T. could no longer, at the stage of the execution of a judgment which had since become final, raise complaints relating to the conduct of the proceedings. 16. At paragraphs 27 and 28 of its report, the Commission made the following findings of fact: "27. The applicant acknowledges that he was indirectly aware of the proceedings against him because his wife had informed him in June 1982 that his daughter was pregnant and had accused him of rape. Moreover, on 21 June 1982 he had written to the judge dealing with the case to contest the version of the facts given in the complaint ... 28. In addition, the applicant had explained his behaviour to his wife in a letter he sent her on 21 May 1983. That letter, bearing his address, had been added to the criminal file. He states that he wrote regularly to his wife, to whom he also sent money, and to his mother; [...] both of them knew his address. Lastly, he points out that his passport had been renewed on 8 February 1984 in Khartoum, and then again in 1987, also in Khartoum, implying a favourable opinion from the Italian Embassy in Saudi Arabia and the prefecture in Genoa. He was therefore not untraceable." 17. Before the Commission Mr T. had claimed that he had tried on several occasions to leave the Sudan between 15 February 1984 and 17 July 1987, but that the Sudanese authorities had prevented him from doing so. 18. He completed his sentence in 1991. 19. At the material time a judicial notification was the document by which the judicial authorities informed the person suspected of having committed an offence that an investigation had been opened and invited him to appoint a defence lawyer of his choice and to provide an address for service. It had to specify the legal provisions infringed and the date of the alleged offence. 20. The investigating judge, in the event of a "formal" investigation, or the public prosecutor, where the investigation was "summary", had to send the notification at the very beginning of their investigation (Articles 304 and 390 of the Code of Criminal Procedure). The notification had to be sent by registered letter requiring acknowledgment of receipt. If the letter was not delivered because the addressee was untraceable (irreperibile), a bailiff had to serve the notification in accordance with the normal procedure (Articles 168 to 175 of the Code of Criminal Procedure). 21. In its judgments in Foti and Others v. Italy of 10 December 1982 (Series A no. 56, p. 12, paras. 33-36), Colozza v. Italy of 12 February 1985 (Series A no. 89, p. 11, paras. 18-19, and pp. 12-13, paras. 21-23) and Brozicek v. Italy of 19 December 1989 (Series A no. 167, pp. 13-14, para. 26), the Court gave a brief description of the Italian legislation then in force as regards notification to a person or an accused who was "untraceable" and trial in absentia (contumacia). In the present case it is necessary to cite Article 177 bis of the former Code of Criminal Procedure (replaced with effect from 24 October 1989), which provided as follows: "Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the public prosecutor or magistrate’s court (pretore) shall send him by registered letter notification of the proceedings against him with an invitation to declare or otherwise give notice of an address for service in the place where the proceedings are conducted. This formality shall neither suspend nor delay the proceedings. Where the accused’s address abroad is unknown or where he has not declared or otherwise given notice of an address for service or if the information provided by him is insufficient or inadequate, the judge or the public prosecutor shall make the order (decreto) provided for in Article 170. The above provisions shall not apply where the issue of an arrest warrant is mandatory." The second sub-paragraph of Article 170 stated as follows: "The judge or the public prosecutor ... shall take a decision appointing a defence lawyer to act for the accused where he does not yet have one in the place where the proceedings are conducted and ordering that notification which has proved impossible to carry out, or any future notification, be effected by means of lodging the relevant documents with the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay when any such document is so lodged." It is also necessary to reproduce the text of the following two Articles: "In the case of in absentia proceedings, an extract of the judgment shall be notified to the accused who may lodge against it any appeal that would have been open to him in respect of a judgment delivered in adversarial proceedings, subject to the provisions of the third paragraph of Article 199." "... For the judgments referred to in Article 500, the period within which the accused may appeal shall begin to run from the notification of the decision or judgment. ..."