CASE OF BROZICEK v. ITALY
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Violation of Art. 6-3-a;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
C. Russo;J.A. Carrillo Salcedo;N. Valticos
14. Mr Georg Brozicek was born in Czechoslovakia and now resides at Steinalben in the Federal Republic of Germany, of which country he is a national. 15. On 13 August 1975 the municipal police of Pietra Ligure (Savona) detained him on the public highway shortly after he had torn down some small ornamental flags erected in connection with a fête organised by a political party. The police, who had intervened at the request of one of the organisers, took him to the police station because he did not have any identity papers with him and, according to their version of events, because he had to be protected against the hostility of the participants. On this occasion he wounded one of the police officers. On 14 August the carabinieri, who had also intervened on the previous day, submitted a report on the incident to the Savona Public Prosecutor's Office. On the same day Mr Brozicek sent a letter, in French, to the Police Chief (questore) of Savona, which was subsequently transmitted to the Public Prosecutor, who ordered its translation into Italian on 31 January 1976. 16. The Public Prosecutor's Office opened an investigation and on 23 February 1976 sent to the applicant - by registered letter requiring acknowledgment of receipt and bearing the address of the applicant's then residence in Nuremberg - a "judicial notification" (comunicazione giudiziaria; see paragraphs 24-25 below). It informed him that proceedings had been instituted against him for the offences of resisting the police and assault and wounding (Articles 337 and 582 of the Criminal Code). In addition, it invited him to appoint a defence lawyer of his choice and informed him that if he failed to do so Mr T. S., avvocato, would be appointed by the authorities. On 1 March 1976 Mr Brozicek returned the document to the Public Prosecutor's Office with the following note (translation from the German): "I return the enclosed document to the sender as I find it difficult to understand. In lodging my detailed complaint of 14 August - on which no action has yet been taken even though the facts complained of could have far-reaching consequences - and in all correspondence to date with the Italian authorities, I have always expressly requested that either the mother tongue of the persons concerned or one of the international official languages of the United Nations be used, in order to avoid from the outset any risk of misunderstanding." The Public Prosecutor's Office received this letter on 3 March 1976. It did not send any reply and did not have the letter translated. 17. On 17 November 1978 the Public Prosecutor's Office sent to the applicant by registered letter requiring acknowledgment of receipt a second "judicial notification". In addition to the information contained in the first notification, it asked the applicant to provide an address for service in Italy (Article 177 bis of the Code of Criminal Procedure). On 5 December 1978 the German postal authorities returned the letter to the sender marked "unclaimed". The acknowledgment of receipt bore the name "Brozicek", in a different space to that provided for the addressee's signature. The Government maintained that it was the applicant's signature but he has always denied this; he claimed that he had not received the communication because he had just moved house. The expert opinion ordered by the Court (see paragraphs 5 and 8 above) did not resolve this question. 18. By an order (decreto) of 13 December 1978 the Public Prosecutor stated that it had not been possible to notify the applicant and that "further enquiries at the place of birth and place of last residence" had not produced any result. He appointed a defence lawyer and directed that all the documents for notification to the accused during the investigation should thereafter be lodged at the secretariat of the Public Prosecutor's Office. At the hearing before the European Court on 22 May 1989, the Government affirmed that the reference to further enquiries was probably an oversight. They maintained that the provision applied to the applicant was the second part of the second paragraph of Article 177 bis of the Code of Criminal Procedure (concerning an accused who has given no address for service, see paragraph 26 below), which does not require such enquiries. The Public Prosecutor summonsed Mr Brozicek to appear for examination on 30 December 1978, but to no avail, and, on that day, he asked the President of the Savona Regional Court to commit the applicant for trial. 19. The trial was set down for 3 November 1980 but when the time came the proceedings had to be adjourned because the date of the hearing had not been notified to the accused. On 11 March 1981 the President of the Savona Court decided that any notification would be lodged with the court registry because the accused had not provided an address for service in Italy (Articles 170 and 177 bis of the Code of Criminal Procedure, see paragraph 26 below). He also appointed a lawyer to represent the accused. After an adjournment for reasons extraneous to the proceedings, the trial took place on 1 July 1981. On that date the applicant was convicted in absentia, sentenced to five months' imprisonment and ordered to pay the costs. The sentence was, however, suspended and no reference to the conviction was to be included in criminal-record certificates issued at the request of private individuals. 20. This decision too was notified to the applicant by being lodged at the court registry because, still pursuant to Article 177 bis of the Code of Criminal Procedure, the president of the court had again noted, on 2 July, that Mr Brozicek had not provided an address for service in Italy. As there was no appeal, the judgment became final on 7 July 1981. 21. On 5 May 1984 the applicant received a letter from the Principal Public Prosecutor at the German Federal Court of Justice (Bundesgerichtshof). The letter informed him of his conviction by judgment of the Savona court of 1 July 1981, which had become final on 7 July 1981, and that the conviction had been entered in the German criminal records (Article 52 of the Criminal Records Act, Bundeszentralregistergesetz). 22. On 7 May Mr Brozicek lodged an application with the Commission, stating, inter alia, that "the possibilities for appealing [were] manifestly time-barred under Italian law ...". On the same day he also wrote to the German Ministry of Foreign Affairs and the Italian Ministry of Justice. In his letter to the German Ministry he requested its assistance in securing, as soon as possible, the rectification or the annulment of the Savona judgment. In his letter to the Italian Ministry he claimed that he had not received any information in his own language on the trial and had been unable to defend himself because neither the indictment nor the judgment had been notified to him. He asked what possibilities of appealing against the decision were open to him. On 5 October the Italian Ministry replied that he could lodge an appeal against the judgment outside the normal time-limits (hereinafter referred to as a "late appeal"; see paragraph 26 below), if the notification to him had not been lawfully made, and seek a retrial. The applicant did not avail himself of either of these possibilities. 23. The German Ministry of Foreign Affairs instructed the Consulate General of the Federal Republic of Germany at Genoa to determine whether there was any possibility of appealing against the judgment of 1 July 1981. As the first result of its communications with the Savona court, the Consulate forwarded to the applicant, on 10 July 1989, a photocopy of the Italian text of the judgment, which was for the most part handwritten. Mr Brozicek acknowledged receipt of this text by a letter dated 18 July 1984. 24. A judicial notification is the document by which the judicial authorities inform the person suspected of having committed an offence that an investigation has been opened and invite him to appoint a defence lawyer of his choice and to provide an address for service. It must specify the legal provisions infringed and the date of the alleged offence. 25. The investigating judge, in the event of a "formal" investigation, or the public prosecutor, where the investigation is "summary", must send the notification at the very beginning of their investigation (Articles 304 and 390 of the Code of Criminal Procedure). The notification must be sent by registered letter requiring acknowledgment of receipt. If the letter is not delivered because the addressee is untraceable (irreperibile), a bailiff must serve the notification in accordance with the normal procedure (Articles 168-175 of the Code of Criminal Procedure). 26. In its Foti and Others judgment of 10 December 1982 and its Colozza judgment of 12 February 1985 (Series A no. 56, p. 12, §§ 33-36, and Series A no. 89, p. 11, §§ 18-19, and pp. 12-13, §§ 21-23) the Court gave a brief description of the Italian legislation then in force as regards the notification to a person or an accused who is "untraceable", trial in absentia (contumacia) and "late appeal" (appello apparentemente tardivo). In this regard Article 177 bis of the Code of Criminal Procedure provides as follows (translation from the Italian): "Where there is precise information in the documents in the proceedings as to the place where the accused resides abroad, the Public Prosecutor or trial judge (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 states that (translation from the Italian): "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 or proves impossible to carry out be effected by means of lodging the relevant documents at the registry of the judicial organ before which the proceedings are pending. The defence lawyer shall be informed without delay of any such notification." The possibility of lodging a "late appeal" was at the time derived from judicial interpretation of Articles 500 and 199 of the Code of Criminal Procedure, according to which (translation from the Italian): "In the case of in absentia proceedings, an extract of the decision or 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 decisions or 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. ..." On the basis of these provisions the courts had consistently held that if the notification of an extract of a decision or judgment delivered in absentia was not lawful because it had been wrongly assumed that the accused did not intend to participate in the proceedings, the person concerned could, within three days, contest such notification and challenge the finality of the decision in question. If he was successful in so doing, he was accorded a new time-limit within which to appeal against the said decision. The new Code of Criminal Procedure, which came into force on 24 October 1989, now makes express provision for this possibility of "re-establishing the time-limit".