CASE OF F.C.B. v. ITALY
Violation of Art. 6-1+6-3-c;Damage - finding of violation sufficient;Costs and expenses award - Convention proceedings
C. Russo
9. On 20 September 1972, in the course of an armed robbery in the province of Bergamo, two masked criminals killed one person and seriously injured another; they then fled in a car driven by an accomplice. Among the suspects, who were swiftly identified, was the applicant. 10. Mr F.C.B. was arrested in Switzerland on 9 November 1973 and extradited to Italy on 19 February 1974. He was charged with armed robbery, murder and attempted murder, these crimes being aggravated by the fact that he had committed them while wilfully evading arrest under other warrants. 11. On 10 November 1977 the Bergamo Assize Court found him and his four co-defendants guilty and sentenced him inter alia to twenty-four years’ imprisonment. 12. The applicant and three others who had been found guilty appealed, and on 26 March 1980 the Brescia Assize Court of Appeal acquitted them for lack of evidence. Mr F.C.B. was released on the following day; in accordance with Article 171 of the Code of Criminal Procedure (see paragraph 25 below), he indicated his address. 13. The Principal Public Prosecutor and three other parties, including the applicant, appealed on points of law. The prosecution’s notice of appeal was served on Mr F.C.B. personally on 5 April 1980 at the address he had given, which was also that of his mother. 14. On 13 April 1983 the Court of Cassation dismissed the applicant’s appeal, allowed the prosecution’s appeal, and remitted the case to the Milan Assize Court of Appeal. 15. Mr F.C.B. had in the meantime entered the Federal Republic of Germany on 24 April 1980. He settled at Constance and was granted a residence permit there on 29 September 1980. He claims that he informed the Italian Consulate in Freiburg of his new address, in order for it to be notified to the Italian authorities for "entry in the civil status register". He did not, however, send the authorities an amended version of his declaration of 27 March 1980 (see paragraph 12 above). 16. The applicant was arrested in Brussels on 19 December 1982 under a warrant issued in the Netherlands in connection with proceedings relating to the abduction of a Netherlands woman. According to Mr F.C.B., after he had been extradited to the Netherlands the Dutch authorities obtained a copy of his criminal record; furthermore, the judge in charge of the case arranged for his Italian colleagues in Milan and Bergamo to co-operate in investigations in Italy and asked the Milan Chief Public Prosecutor’s Office to have searches of the dwellings of the applicant, his sister and his sister-in-law carried out. The Government did not contest this point, merely stating that they had no detailed information about it. Mr F.C.B. maintained that he was held in solitary confinement from 19 December 1982 to 19 February 1985, when his conviction by the ‘s-Hertogenbosch Court of Appeal became final, and was thus subject to certain restrictions - which were, however, eventually relaxed - on correspondence, visits and contacts with other detainees. 17. On 25 November 1983 the President of the Milan Assize Court of Appeal attempted to serve a summons to appear before that court on the applicant at the address given by him on his release, but neither the applicant nor his mother lived there any more. On 15 December 1983 the summons was delivered to Mr F.C.B.’s mother, whose new address had been found out in the meantime. The applicant’s lawyer had also been informed on 23 October 1983 of the hearing date. 18. The trial opened on 9 April 1984 in Mr F.C.B.’s absence. His counsel informed the court that, according to close relatives of his client, the latter was in custody in Maastricht; he added, however, that he was unable to produce documentary evidence to this effect. The prosecution submitted that there was no objective evidence to show that Mr F.C.B. was in custody and invited the court to try him in absentia as unlawfully absent (contumace). The court decided to do this, but counsel for one of the co-defendants asked it to verify the information that Mr F.C.B. was unable to attend the trial, as the applicant’s presence could prove to be of importance for his client. That client and another co-defendant confirmed that Mr F.C.B. was in prison in the Netherlands; the one had learnt of it from the newspapers and the other had received a letter from the applicant sent from Maastricht prison. 19. The prosecution for their part repeated their submissions. After deliberating in private, the Assize Court of Appeal confirmed its declaration that Mr F.C.B. was unlawfully absent, as he had not provided proof that he was unable to attend, despite having been notified in good time of the start of the trial. On 10 April 1984 the court sentenced him to twenty-four years’ imprisonment and issued a warrant for his arrest. 20. On 26 April Mr F.C.B.’s Dutch lawyer sent his Italian colleague copies of documents (two summonses to appear before the Netherlands courts) showing that his client was in custody. Translations were given to the court on 26 May. 21. The applicant’s lawyer appealed on points of law to the Court of Cassation; his grounds of appeal were filed in February 1985. He submitted that the Assize Court of Appeal had been wrong in declaring Mr F.C.B. unlawfully absent and questioned the correctness in law of the judgment. On the first point he argued that the decision itself and the subsequent proceedings were null and void, as it had been impossible for his client to attend the hearing. He said that it was only out of excessive regard for formal propriety that the Assize Court of Appeal had declined to rule that the applicant was unable to appear, notwithstanding several concurring statements testifying to the fact. 22. The Court of Cassation dismissed the appeal on 13 November 1985. It found, firstly, that the appeal court had been right to try Mr F.C.B. as unlawfully absent, as there was no proof that he was unable to attend. The documents produced on 26 May 1984 (see paragraph 20 above) had been offered in evidence only after judgment had been given and therefore had no probative value. With greater diligence the defence could have produced them before the hearing. It could be seen from the statement of appeal that the applicant would have had time to do this, as he had been in custody in the Netherlands well before the summons to appear was served. The Court of Cassation held that it was for the Assize Court of Appeal to assess the alleged inability to attend, and that that court had given proper reasons for its decision. 23. On 5 September 1984 the Italian authorities had requested Mr F.C.B.’s extradition for the purposes of the judicial investigation concerning him. On 17 June 1985, however, the Maastricht Regional Court dismissed the request as inadmissible, on the grounds that the Milan Assize Court of Appeal had already given a judgment on the merits on 10 April 1984 (see paragraph 19 above). The court added that it would consider the matter again in the event of the judicial investigation being reopened as a result of a retrial being ordered by the Court of Cassation or for some other reason. 24. The Netherlands agreed to extradite Mr F.C.B. to Belgium and he is currently in custody there. According to the information given to the Court by counsel for the applicant, the applicant will have to return to the Netherlands to serve one year’s imprisonment there, and if the Italian authorities succeed in obtaining his extradition, he will then serve in Italy six years and six months of the prison sentence imposed by the Milan Assize Court of Appeal. 25. In the Foti and Others judgment of 10 December 1982, the Colozza judgment of 12 February 1985 and the Brozicek judgment of 19 December 1989 (Series A no. 56, p. 12, paras. 33-36; no. 89, p. 11, para. 18, and p. 12, paras. 21-22; no. 167, p. 13, para. 26) the Court gave a brief description of the Italian legislation then in force as regards notifications and trials in absentia (contumacia). As to notifications to an accused who has been released but in whose case a final judgment has not yet been given, the first and fourth paragraphs of Article 171 of the Code of Criminal Procedure provide as follows (translation from Italian): "An accused held in custody who has to be released for a reason other than a final acquittal ... must at the time of release declare or elect an address [for service] by lodging a document with the director of the prison. The director shall enter any declaration he has received in the register specified in Article 80 and shall immediately notify it to the judicial authority which ordered the release ... . Any change relating to the address declared or elected must be communicated by the suspect or accused to the authority in charge of the case, as provided for in the first paragraph. Notifications made to the address previously declared or elected shall be valid until such communication has been received."