CASE OF FODALE v. ITALY
Violation of Art. 5-4;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Corneliu Bîrsan;Egbert Myjer;John Hedigan;Lucius Caflisch;Vladimiro Zagrebelsky
7. The applicant was born in 1947 and lives in Trapani. He is an oil producer. 8. On an unspecified date criminal proceedings were brought against the applicant, who was charged with attempted extortion, attempted arson and arson, and (under Article 416 bis of the Criminal Code) with being a member of a mafia-type criminal association based in Sicily. 9. By an order of 12 July 1999, the Palermo preliminary investigations judge (giudice per le indagini preliminari), considering that there were “substantial indications” of the applicant’s guilt, remanded him in custody. As to the existence of special requirements (esigenze cautelari) justifying his detention pending trial under Article 274 of the Code of Criminal Procedure, the preliminary investigations judge observed that on account of his involvement in a criminal organisation the applicant had contacts which might enable him to reoffend, abscond, or pervert the course of justice. Moreover, given that the applicant had also been charged with the offence provided for under Article 416 bis of the Criminal Code, the requirements referred to in Article 274 of the Code of Criminal Procedure were to be presumed to have been met unless there was proof to the contrary. 10. The applicant appealed against the order of 12 July 1999. 11. By an order of 2 August 1999, the division of the Palermo District Court responsible for reviewing precautionary measures (“the Specialised Division”), finding that the preliminary investigations judge had not correctly assessed the evidence of the applicant’s guilt, set aside the order of 12 July 1999 and ordered the applicant’s release. 12. The public prosecutor’s office appealed on points of law. It alleged in particular that the Specialised Division had given the reasons for its decision in an illogical and contradictory manner. 13. The Court of Cassation set the case down for a hearing on 15 February 2000. No summons to appear was served on the applicant or his lawyer. 14. The hearing was held on the scheduled date. 15. In a judgment of 15 February 2000, the Court of Cassation quashed the order of 2 August 1999, finding it to have been illogical and contradictory. It remitted the case to the Specialised Division, indicating the legal principles to which the Division should adhere. 16. The Specialised Division set the case down for a hearing on 4 April 2000. On that date Mr Oddo sought leave to produce additional evidence. He also argued that the judgment of 15 February 2000 was null and void as he had not been informed of the date of the hearing. He alleged that Article 627 § 4 of the Code of Criminal Procedure, which provided that grounds of nullity that had not been examined previously could not be submitted before the court to which the case was remitted, breached the rights of the defence. Consequently, he requested that the provision in question be waived. 17. The Specialised Division agreed to the inclusion of the new evidence requested by Mr Oddo. Relying on Article 627 § 4 of the Code of Criminal Procedure, it dismissed the objection that the judgment of 15 February 2000 was null and void. 18. On 13 April 2000 the Specialised Division upheld the preliminary investigations judge’s order of 12 July 1999 in respect of two of the charges and set aside the remaining provisions. 19. The applicant was then arrested and remanded in custody. 20. On 15 May 2000 the applicant appealed to the Court of Cassation, again claiming that the judgment of 15 February 2000 was null and void, and alleging that Article 627 § 4 of the Code of Criminal Procedure was unconstitutional and breached the rights of the defence. 21. In a judgment of 11 December 2000, the Court of Cassation, considering that the decision appealed against had been logically and properly reasoned, dismissed the applicant’s appeal on points of law. It considered manifestly ill-founded the objection that Article 627 § 4 of the Code of Criminal Procedure was unconstitutional. 22. In the meantime, in a judgment of 20 July 2000, the Palermo preliminary hearings judge (giudice dell’udienza preliminare) had convicted the applicant. The length of the sentence is not known. 23. The applicant lodged an appeal. 24. In a judgment of 17 May 2001, the Palermo Court of Appeal acquitted the applicant on the ground that he had not committed the offences with which he had been charged (per non aver commesso il fatto). 25. The public prosecutor at the Palermo Court of Appeal lodged an appeal on points of law, which was dismissed in a judgment of 23 May 2002. The applicant’s acquittal thus became final.