CASE OF HERMI v. ITALY
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The applicant was born in 1969 and is currently in Frosinone Prison. 9. On 28 November 1999 the applicant was discovered in possession of a package containing 485 grams of heroin and was arrested by the Rome carabinieri. Proceedings were instituted against him for drug trafficking. On 23 December 1999 the applicant appointed a lawyer of his own choosing, Mr M., who represented him throughout the proceedings. 10. The applicant subsequently requested, through the intermediary of his lawyer, adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). The representative of the Public Prosecutor’s Office gave a favourable opinion. The Rome preliminary hearings judge, taking the view that the charges against the applicant could be determined on the basis of the steps in the proceedings taken at the preliminary investigation stage (allo stato degli atti) ordered that the summary procedure be adopted. 11. At the private hearing held on 24 March 2000 in the presence of the applicant, the latter, through the intermediary of his lawyer, pleaded not guilty on the ground that the drugs had been intended for his personal use and not for sale. 12. In a judgment of 24 March 2000 the Rome preliminary hearings judge sentenced the applicant to six years’ imprisonment and a fine of 40,000,000 lire (approximately 20,658 euros). He observed that the quantity of drugs permitted for personal use must not exceed what was required to meet immediate needs. At the time of his arrest, the applicant had just purchased a quantity corresponding to more than 8,000 average daily doses. 13. The applicant appealed against the judgment, reiterating the arguments adduced at first instance. He contended that interpreting the law on drugs in a way that penalised drug users was in breach of the Constitution. 14. On 1 September 2000 Mr M. was informed that the hearing had been set down for 3 November 2000. On that day Mr M. objected to the continuation of the proceedings in the absence of his client and requested that the latter be brought from the prison to the hearing room. The Rome Court of Appeal dismissed his request, observing that the applicant had not informed the authorities in advance that he wished to participate in the appeal proceedings. 15. In a judgment of 3 November 2000 the Court of Appeal upheld the judgment at first instance. 16. The applicant appealed on points of law. He alleged that the appeal judges had not allowed him to attend his trial and that the summons to appear at the appeal hearing had not been translated into Arabic. 17. In his final submissions, the public prosecutor requested that the impugned decision be set aside. 18. In a judgment of 24 January 2002 the Court of Cassation dismissed the applicant’s appeal. It observed that neither the Convention nor the CCP required the steps in the proceedings to be translated into the language of a non-national defendant in Italy. However, the latter had the right to be assisted free of charge by an interpreter in order to be able to understand the charges against him and follow the progress of the proceedings. As to the other complaints, the Court of Cassation observed that the presence of the defendant was not required under the summary procedure, the adoption of which had been requested by the applicant himself of his own free will. Furthermore, the applicant had not made clear his wish to participate in the appeal hearing. 19. The summary procedure is governed by Articles 438 to 443 of the CCP. 20. Under the terms of these provisions as they applied at the time when the applicant was arrested, the defendant could request, subject to a favourable opinion from the representative of the Public Prosecutor’s Office, that the case be decided at the preliminary hearing. If the judge deemed that the charges could be determined on the basis of the steps performed at the preliminary investigation stage and recorded in the file held by the Public Prosecutor’s Office (fascicolo del pubblico ministero), he ordered the summary procedure to be adopted. The summary procedure was subsequently amended by Law no. 479 of 16 December 1999. Under the new rules, a favourable opinion from the representative of the Public Prosecutor’s Office is no longer required, and the judge cannot reject the request for the summary procedure to be adopted if the defendant does not request that any evidence be produced (integrazione probatoria). 21. Where the summary procedure is adopted, the hearing takes place in private and is devoted to hearing the arguments of the parties, which must be based on the documents contained in the file held by the Public Prosecutor’s Office. If the judge decides to convict the defendant, the sentence is reduced by onethird (Article 442 § 2). The judgment is delivered in private. 22. Under the terms of Article 597 § 1 of the CCP: “The appeal judge shall be empowered to rule (la congnizione del procedimento) solely (limitatamente) on those aspects of the decision referred to in the grounds of appeal.”