CASE OF SOMOGYI v. ITALY
Violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
8. The applicant was born in 1951 and is at present detained in Tolmezzo Prison, Udine. 9. In the course of criminal proceedings concerning an arms trafficking charge, the Rimini preliminary investigations judge set down the preliminary hearing for 23 April 1998. 10. On 30 October 1997 he ordered the notice of the date of the hearing, translated into Hungarian and accompanied by an invitation to appoint a legal representative, to be served by post on the accused, a Hungarian national living in Hungary named Thamas Somogyi, who was born in Miskolc on 23 October 1953. The reply slip acknowledging receipt of the notice reached the Rimini District Court's registry bearing a signature which, according to the applicant, was not his. He asserted that there was a difference between that signature and the one in his passport. Moreover, the forename of the signatory was “Thamas” and not “Tamas”. 11. As the defendant did not appear at the preliminary hearing, he was declared to be wilfully seeking to evade trial (contumace) and the court appointed a lawyer, Mr G., to assist him. From that point on, all notifications of procedural steps were served on Mr G. 12. Mr G. did not plead the nullity of the notice of the date of the preliminary hearing. An order was then made committing Thamas Somogyi for trial. 13. In a judgment of 22 June 1999, the Rimini District Court sentenced the accused to eight years' imprisonment and a fine of 2,000,000 Italian lire (approximately 1,032 euros). 14. That decision was grounded on statements made by certain persons facing charges in related proceedings, particularly a Mrs M. and the S. brothers, corroborated by other evidence. The text of the judgment did not indicate whether the persons in question had recognised the applicant on a photograph or if they had identified him in their statements purely on the basis of his name or personal information they had about him. The Rimini District Court merely said that the applicant had been “recognised and identified”. It further observed that, in view of the gravity of the offences he was charged with and the fact that he had constantly refused to give his version of the facts, he could not be granted the benefit of any extenuating circumstance. 15. The judgment of 22 June 1999 was served on Mr G. 16. On 30 October 1999 the Rimini District Court, having noted that the judgment of 22 June 1999 had become final, ordered the arrest of Mr Thamas Somogyi. 17. On 15 August 2000 the Austrian police arrested the applicant (Tamas Somogyi, born in Budapest on 19 October 1951) and notified the Italian authorities. 18. The Italian authorities opened an investigation which led to the finding that the person convicted on 22 June 1999 was in fact the applicant. 19. In a decision of 17 August 2000, the Rimini District Court ordered that the judgment of 22 June 1999 be rectified by insertion of the applicant's forename and his date and place of birth in place of the information originally recorded. That decision was served on Mr G. 20. The applicant was then extradited from Austria to Italy, where he was deprived of his liberty in execution of the judgment of 22 June 1999. 21. On a date which has not been specified he applied to the Rimini District Court under Article 175 of the Code of Criminal Procedure (“the CCP”), asking it to reopen the time allowed for an appeal (istanza di rimessione in termini). He contended that the judgment of 22 June 1999 was invalid because the summons was null and void, submitting the following arguments: (a) the identity of the person convicted had not been reliably established, so that the procedure for rectification of an error ought not to have been followed; (b) he had not been aware of the proceedings against him, and the signature on the envelope containing the notice of the date of the preliminary hearing was not his. In that connection he said that if necessary a handwriting expert should be asked to determine whether the signature was authentic and that if he had to do so he would lodge a complaint alleging forgery (querela di falso); (c) the notice concerned had not been properly served since the form of service did not comply with the provisions of the Italo-Hungarian agreement signed on 26 May 1977 (and ratified by the Italian parliament in Law no. 511 of 23 July 1980), which required all judicial communications from one of the two signatory countries addressed to individuals in the other country to take the form of a request for judicial assistance. The applicant further asserted that the form of service of the notice in question had in any case been incompatible with the relevant provisions of the Hungarian legislation concerning judicial communications by post. 22. In a decision of 24 October 2000, the Rimini District Court refused the applicant's request. 23. It observed in the first place that the judge responsible for the execution of sentences could not look into grounds for annulment arising out of the proceedings and concerning the merits of the charges. The defects complained of had in any case been cured (sanate) when the judgment of 22 June 1999 became final. 24. Secondly, the identity of the person convicted had been established through an investigation conducted by the Rimini prefecture with the assistance of the Rome branch of Interpol. Moreover, a mere inaccuracy concerning a defendant's date of birth did not constitute a ground for annulment of a judgment, and could properly be corrected via the rectification procedure. 25. Lastly, according to the case-law of the Court of Cassation, a request to reopen the time allowed for an appeal was admissible only where a defendant alleged that he had been prevented from finding out about his conviction by circumstances beyond his control. It would be inadmissible, however, if he pleaded that service of a notice was null and void. In such a case a person convicted at first instance could lodge an appeal out of time, arguing in effect that the time allowed for an appeal had not begun to run. 26. On 27 November 2000 the applicant appealed to the Bologna Court of Appeal against the judgment of 22 June 1999, submitting that as it had been based on invalid procedural steps it could not have become final. He also repeated his request for a report by a handwriting expert and his statement concerning the possibility of lodging a complaint of forgery. 27. In a judgment of 24 May 2001, deposited with the registry on 3 July 2001, the Bologna Court of Appeal declared the applicant's appeal inadmissible. It observed in particular that the evidence against the applicant had been corroborated by two persons charged in related proceedings, who had stated that the weapons in question, which had been brought in from Hungary and then used to commit an armed robbery, a murder and an attempted murder, had been bought at the applicant's house. He had then taken to Hungary a Fiat Uno car which one of the co-defendants had sold him. The District Court had correctly identified the defendant as Tamas Somogyi, a Hungarian national living at 16 Erdo Street, Szigethalom, previously convicted of rape, armed robbery and acts of vandalism. Moreover, on 27 January 1995, Italian Interpol had reported that the applicant was the son of a woman named Maria Jobbik (as his lawyer had confirmed), that he had been born on 19 October 1951 in Budapest and that he lived at “26 ... Erdo Str., Szigethalom/Hungary”. His address had also been confirmed by a co-defendant. In those circumstances, the Court of Appeal ruled that there was no doubt that the applicant was indeed the person sought by the Italian authorities. 28. The Court of Appeal went on to note that notification of the charges had been served on the applicant. An acknowledgment-of-receipt slip dated 16 January 1998 and apparently signed by the addressee proved that this information had been received. The address at which the notice had been served was in most respects correct, the only mistakes being that an extra “h” had been added to “Szigethalom” (making “Szigethalhom”) and the accent had been missed off the place name Ërdo (making Erdo). It was therefore not necessary to compare the applicant's signatures on his passport and certain company documents with the one on the return slip acknowledging receipt. 29. As regards the applicant's argument that the terms of the Italo-Hungarian agreement had not been complied with, the Court of Appeal observed that notification had been properly served on the applicant in accordance with the relevant domestic provisions, since the assistance between States provided for in the agreement was mandatory only if one of the High Contracting Parties requested it. Where, as in the present case, no explicit request to that effect had been made, domestic law had to be applied. In addition, although it was true that under Hungarian legislation registered letters could be delivered only to persons who had first been authorised and designated, it was obvious that those rules applied only where, unlike the position in the applicant's case, the person receiving the letter was not the addressee. 30. The Court of Appeal therefore ruled that, contrary to the applicant's submissions, the first-instance judgment was valid. It followed that the defendant's appeal was out of time, and therefore inadmissible pursuant to Article 591 § 1 (c) of the CCP. 31. On 30 July 2001 the applicant appealed on points of law. He repeated his request for a report by a handwriting expert and again stated that he was minded to lodge a complaint of forgery. 32. In a judgment of 23 April 2002, deposited with the registry on 23 May 2002, the Court of Cassation dismissed the applicant's appeal, holding that the reasons given by the Court of Appeal for all its disputed rulings had been logical and correct. It observed in particular that, in spite of minor clerical errors in the address, the notice sent by the Rimini preliminary investigations judge had obviously reached the person it had been sent to. There was no evidence that it had been received by someone of the same name as the applicant living at a similar or nearly identical address. 33. On 11 December 2001 the applicant asked for a retrial, alleging that certain new information showed that he should have been acquitted. It was submitted that a Hungarian journalist and writer, Mr P., had informed the applicant's lawyer that during a television programme two co-defendants had made statements establishing his client's innocence. In addition, Mr P. had asserted that in his opinion the Italian and Hungarian secret services had intervened in the applicant's case and that a Colonel K., employed in the Organised Crime Unit, knew that the convicted man was innocent. 34. In a decision of 18 July 2002, the Ancona Court of Appeal declared the application inadmissible. It pointed out that, according to the case-law of the Court of Cassation, statements by co-defendants did not justify reopening a trial. Moreover, the evidence of the persons concerned had already been taken by the lower courts. Furthermore, the opinions expressed by Mr P. about the applicant's innocence were completely subjective and unsubstantiated by any evidence. 35. According to the information supplied by the Government, identification of the applicant as an arms trafficker was based on the following evidence: – the record of an interview with Mrs M. on 20 January 1995 during which she declared that a Tamas Somogyi wished to participate in the criminal activities of the S. brothers and that he had supplied guns to them; – a handwritten note from Mrs M. giving the applicant's name and address; – a letter sent by one of the S. brothers to Mrs M. – and received by her – at the applicant's address; – a receipt for 20,000 German marks, given by Mr Somogyi to Mrs M.; – a television interview obtained by an Italian journalist on 16 February 1995 at the applicant's home, during which the applicant showed photographs of Mrs M. and one of the S. brothers; – the fact that Mrs M. had recognised the applicant's face in the video recording of the interview; and – the fact that the applicant's identity had been checked by the Italian and Austrian police at the time of his extradition, on the basis of a photograph taken from the interview broadcast on 16 February 1995. 36. The relevant passages of Article 175 §§ 2 and 3 of the Code of Criminal Procedure (“the CCP”) provide: “In the event of conviction in absentia ..., the defendant may request the reopening of the time allowed for appeal against the judgment where he can establish that he had no knowledge [of it] ... without any negligence on his part or where, in the case of a conviction in absentia having been served ... on his lawyer ..., he can establish that he did not deliberately refuse to take cognisance of the procedural steps. A request for the reopening of the time allowed for appeal must be lodged within ten days of the date ... on which the defendant learned [of the judgment], failing which it shall be declared inadmissible.” 37. Article 130 of the CCP provides: “Rectification of judgments and decisions affected by errors or omissions which do not entail their nullity, and which may be corrected without requiring a substantial redrafting of the text, shall be ordered, where necessary of his or her own motion, by the judge who gave the decision in question ...” 38. Article 546 of the CCP indicates what elements a judgment must include. Sub-paragraph (b) mentions, among other details, the defendant's particulars or other information by which he can be identified. Article 547 of the CCP provides that, where one of the elements mentioned in Article 546 is missing or incomplete, the judgment must be rectified in accordance with Article 130, and that an order to that effect may be made by the judge even of his or her own motion. 39. Article 552 § 1 of the CCP also provides that a summons must include the applicant's particulars or other information by which he can be identified. Paragraph 2 adds that the decision in question is null and void if the defendant has not been reliably identified.