CASE OF ARTICO v. ITALY
Preliminary objection rejected (ratione temporis);Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (six month period);Violation of Art. 6-3-c;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed
8. Mr. Ettore Artico, an Italian citizen born in 1917, is an accountant by profession. On 27 January 1965, Mr. Artico was sentenced by the Verona District Judge (pretore) to eighteen months’ imprisonment and a fine for simple fraud (truffa semplice). A further sentence of eleven months’ imprisonment and a fine for repeated fraud (truffa con recidiva), impersonation (sostituzione di persona) and uttering worthless cheques was imposed on him by that Judge on 6 October 1970. These various offences had been committed in May/June 1964. Appeals lodged by the applicant on 28 January 1965 and 11 December 1970 were rejected on 16 December 1969 and 17 April 1971, respectively, by the Verona Criminal Court; it dealt with both cases in Mr. Artico’s absence. On 11 October and 13 November 1971, the pretore issued committal warrants to enforce the two prison sentences. The warrants were served on the applicant on 22 December 1971; he had, in fact, been arrested on 8 December in connection with other offences. 9. On 25/26 December 1971, Mr. Artico, who was then in Brindisi prison, appealed once more to the Criminal Court against both of the decisions of the pretore. He claimed to be unaware of the Criminal Court’s judgments and accordingly filed with the appeals applications to quash (ricorsi per cassazione), inter alia, "any decision given on appeal" ("la eventuale sentenza di secondo grado"). The fact that the cases had been dealt with in Mr. Artico’s absence was the basic target of these applications: they challenged in particular the regularity of both the procedure followed as regards the service of various documents and declarations to the effect that the applicant was untraceable (decreto di irreperibilità; Article 170 of the Code of Criminal Procedure). By two Orders of 6 March 1972, the Criminal Court declared the appeals inadmissible on the ground that they were directed against decisions that had already been the subject of appeals. At the same time, the Criminal Court, for reasons of jurisdiction, transmitted the applications to quash to the Court of Cassation. 10. On 10 and 14/15 March, Mr. Artico, who was then in Venice prison, filed declarations with the latter Court setting out his further arguments. Although this was not mentioned amongst the principal grounds invoked, the declarations concluded with a new request: the offences covered by the decisions of the pretore should be declared to have been extinguished as a result of statutory limitation (prescrizione; Articles 157 et seq. of the Criminal Code) in November/December 1971, since by that date the statutory period of seven years and six months had elapsed. In pleadings dated 3 and 10 July 1973, which dealt only with the alleged procedural irregularity and not with the issue of statutory limitation, the public prosecutor (pubblico ministero) submitted that Mr. Artico’s applications were manifestly ill-founded. By two Orders (ordinanze) of 12 November 1973, the Court of Cassation, sitting in chambers, declared the applications inadmissible on the ground that there had been no procedural irregularity; it dit not, however, advert to the question of statutory limitation. 11. During 1975, Mr. Artico, relying once more on the issue of statutory limitation, filed with the Court of Cassation an appeal (istanza di revisione) against the decisions of 27 January 1965 and 6 October 1970 which had been confirmed by the Criminal Court on 16 December 1969 and 17 April 1971. By judgment of 5 August 1975, the Court of Cassation held that the offences of simple fraud, impersonation and uttering worthless cheques had been extinguished by statutory limitation. Accordingly, the Verona Criminal Court’s judgments were quashed but not, in the case of that of 1971, as regards the offence of repeated fraud. At the same time, the Court declared a request by the applicant for provisional release to be inadmissible on the ground that it had not been established that his detention stemmed from the decisions that were under appeal. 12. Mr. Artico was, however, released on 23 August 1975 pursuant to a directive (provvedimento) issued on the same date by the Milan public prosecutor’s department (procura della Repubblica). The directive, after referring to the 1975 judgment of the Court of Cassation, re-calculated at two years and eight months the total period of imprisonment due to be served in respect of the offence of repeated fraud and various other offences; as the applicant had been in prison since 8 December 1971, the period had already expired on 7 August 1974. An application by Mr. Artico for compensation for wrongful detention was dismissed by the Court of Cassation on 4 November 1977 on the ground that it had been lodged out of time. In a directive issued by the Ferrara public prosecutor (procuratore della Repubblica) on 15 March 1978, another re-calculation was made of the period of imprisonment due to be served by the applicant for various offences; the detention which he had undergone "unduly" ("indebitamente") from 8 August 1974 to 23 August 1975 was set off against other sentences. 13. Mr. Artico, who had originally been represented by a lawyer of his own choice, Mr. Ferri, included in his declaration of 10 March 1972 to the Court of Cassation a request for free legal aid in connection with the applications to quash. This request was granted on 8 August 1972 by the President of the Second Criminal Section ("the Section President") who appointed for the purpose Mr. Della Rocca, a lawyer from Rome. 14. On 4 September, Mr. Artico wrote to the Section President and the public prosecutor (procuratore generale) attached to the Court of Cassation ("the Cassation prosecutor") to inform them that he had heard nothing from Mr. Della Rocca and to request that steps be taken to provide effective assistance. By letter of 8 September, Mr. Della Rocca advised the applicant that it was only on his return from holiday that he had learned of the appointment, stated that other commitments prevented him from accepting it and gave the name of a colleague whose services he strongly recommended the applicant to utilise. On 10 October, Mr. Artico asked Mr. Della Rocca to apply for the appointment of a substitute in accordance with the procedure laid down by law. In a letter of 18 January 1973 to the applicant, the lawyer said that on 17 October he had submitted to the Section President a formal request (istanza) to that effect, indicating therein that for health reasons he was unable to undertake a task which he described as very demanding and onerous (molto impegnative e gravi); he considered that in this way he had fulfilled his obligations and expressed the wish to be left in peace. On 30 January 1973, the applicant wrote to the Section President and the Cassation prosecutor requesting Mr. Della Rocca’s replacement and enclosing a copy of the latter’s letter to him of 18 January. The registry of the Court of Cassation apparently replied on 26 February with a note to the effect that Mr. Della Rocca was still acting since a lawyer appointed for legal aid purposes was not in law entitled to refuse the appointment. On 6 March, Mr. Artico – who referred as on subsequent occasions to various statutory texts - sent to the Cassation prosecutor a complaint requesting, in addition to Mr. Della Rocca’s replacement, the imposition on him of criminal and disciplinary sanctions; no action seems to have been taken on this complaint, a copy whereof had been sent to the Section President. On 12 March, the applicant wrote to the Senior President of the Court of Cassation, inter alia, to draw his attention to the lack of legal assistance and to seek his intervention. By a telegram of 4 May the registry advised the applicant that Mr. Della Rocca had not been replaced and that the applications to quash were still with the public prosecutor’s department. Three days later Mr. Artico wrote again to the Cassation prosecutor to complain, amongst other things, of the absence of a substitute counsel and, on 6 June, the registry sent to the applicant a telegram worded similarly to the previous one. By letter of 19 June to the Cassation prosecutor, a copy of which was sent to the Section President, Mr. Artico emphasised the situation’s serious consequences for the defence and once more requested the appointment of another lawyer. 15. By notification dated 25 September, the registry of the Court of Cassation informed Mr. Della Rocca that the case was due to be heard on 12 November 1973. On 5 October, the registry sent to Mr. Artico, in reply to his telegram, a telegram advising him of the date of the hearing and that the lawyer had not been replaced. Letters dated 6 October from the applicant to the Section President and the Cassation prosecutor, which referred to several earlier communications of a similar nature, complained of Mr. Della Rocca’s attitude and of the authorities’ failure to act and contained a further request for replacement. On 2 November, Mr. Artico submitted to the Section President, with a copy to the Cassation prosecutor, the last of such requests, alleging a violation of the rights of the defence and asking for an adjournment of the hearing; however, this request did not reach the Court of Cassation until 20 December whereas it had already declared the applications to quash inadmissible on 12 November (see paragraph 10 above). 16. Under Article 524 of the Code of Criminal Procedure: "An application to quash may be made to the Court of Cassation on the following grounds: 1) failure to observe or erroneous application of the criminal law ...; 2) exercise by a court of a power reserved by law to legislative or administrative bodies or not granted to the State authorities; 3) failure to observe the rules of the present Code in cases where it is stipulated that non-observance shall result in nullity, inadmissibility or estoppel. ... An application shall be inadmissible if made on grounds which are not prescribed by law or are manifestly ill-founded." 17. Article 531 provides as follows: "When a ground on which the application would be inadmissible is pleaded by a party or is raised ex officio, the question shall be decided as a preliminary point by the Court of Cassation sitting in chambers ... ... In all the aforesaid cases, the Court shall rule on the matter, having regard to the public prosecutor’s written pleadings, without the intervention of defence lawyers. However, in the cases contemplated in the final paragraph of Article 524, the public prosecutor’s pleading shall be filed at the registry of the Court and notice of the said filing shall be given forthwith to the applicant’s lawyer. The latter shall be entitled to submit, within fifteen days of the notification, to the President of the Section seised of the matter a written request that the application be heard in open court. If such a request is presented, the Court shall sit in public. If the applicant has not appointed a lawyer, the aforesaid notice shall be given to the lawyer officially appointed for that purpose by the President." 18. Free legal aid is governed, inter alia, by the provisions of Royal Decree (Regio Decreto) no. 3282 of 30 December 1923. In criminal matters, legal aid is available as of right to anyone who is in a "state of poverty" ("stato di povertà"; Article 15), which phrase is to be interpreted as meaning inability to meet the expenses involved (Article 16). The decision affording legal aid is taken by the president of the trial court (Article 15; see also Article 3 of Royal Decree no. 602 of 28 May 1931). Once granted, it is the judicial authority seised of the case which nominates the lawyer who is to act for the person concerned (Article 29 of the 1923 Decree). The prosecuting authorities or the court president may cause a substitute lawyer to be designated either on their own initiative, where there are serious reasons, or if the original lawyer "establishes legitimate grounds which oblige him to abstain, or entitle him to be excused, from acting" (Article 32). Similarly, Article 128 of the Code of Criminal Procedure provides that an officially appointed lawyer may be replaced "for a justified reason". Article 5 of Royal Decree no. 602 of 28 May 1931 stipulates that any defence lawyer who is unable to act must supply a written statement of the reasons therefore; even after such a declaration has been made and for so long as he has not been replaced, the lawyer must fulfil the obligations of his office. An assisted party loses the benefit of legal aid if he instructs a lawyer of his own choice (Article 128 of the Code of Criminal Procedure). In general, legal aid comes under the supervision of the prosecuting authorities; they can take such measures as may be necessary to ensure that the case of an assisted person is properly attended to and, without prejudice to the latter’s action for damages, may request the imposition of disciplinary penalties on lawyers who neglect their duties (Article 4 of the 1923 Decree). 19. By virtue of Article 152 of the Code of Criminal Procedure, a court is obliged, at any stage of the proceedings, to take notice of its own motion of the extinction of an offence; statutory limitation takes effect by operation of law, even where an appeal is otherwise inadmissible. The Government conceded that in the present case the Court of Cassation should itself have raised this question in its decisions on the applications to quash.