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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> F.C.B. v. ITALY - 12151/86 [1991] ECHR 40 (28 August 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/40.html Cite as: (1992) 14 EHRR 909, 14 EHRR 909, [1991] ECHR 40

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In the case of F.C.B. v. Italy*,

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and

the relevant provisions of the Rules of Court***, as a Chamber

composed of the following judges:

Mr R. Ryssdal, President,

Mrs D. Bindschedler-Robert,

Mr F. Gölcüklü,

Mr F. Matscher,

Mr J. Pinheiro Farinha,

Mr B. Walsh,

Mr C. Russo,

Mr R. Bernhardt,

Mr A. Spielmann,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 21 March and 26 June 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 40/1990/231/297. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Article 11 of Protocol No. 8 (P8-11), which came

into force on 1 January 1990.

*** The amendments to the Rules of Court which came into force

on 1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court by the European

Commission of Human Rights ("the Commission") on 11 July 1990,

within the three-month period laid down by Article 32 para. 1 and

Article 47 (art. 32-1, art. 47) of the Convention. It originated

in an application (no. 12151/86) against Italy lodged with the

Commission under Article 25 (art. 25) by a citizen of that State,

Mr F.C.B., on 9 May 1986. The applicant requested the Court not

to reveal his identity.

The Commission's request referred to Articles 44 and 48 (art. 44,

art. 48) and to the declaration whereby Italy recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46). The

object of the request was to obtain a decision as to whether the

facts of the case disclosed a breach by the respondent State of

its obligations under Article 6 paras. 1 and 3 (c) (art. 6-1,

art. 6-3-c).

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated

that he wished to take part in the proceedings and designated the

lawyer who would represent him (Rule 30). On 19 September 1990

the President authorised him to use the Italian language

(Rule 27 para. 3).

3. The Chamber to be constituted included ex officio

Mr C. Russo, the elected judge of Italian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 para. 3 (b)). On 27 August 1990,

in the presence of the Registrar, the President drew by

lot the names of the other seven members, namely

Mrs D. Bindschedler-Robert, Mr F. Gölcüklü, Mr F. Matscher,

Mr J. Pinheiro Farinha, Mr B. Walsh, Mr R. Bernhardt and

Mr A. Spielmann (Article 43 in fine of the Convention and

Rule 21 para. 4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Italian Government ("the Government"), the Delegate of the

Commission and the lawyer for the applicant on the need for a

written procedure (Rule 37 para. 1). In accordance with the

orders made in consequence, the Registrar received the

Government's memorial on 15 January 1991 and the applicant's

memorial on 21 January. In a letter received on 14 March the

Secretary to the Commission informed him that the Delegate would

submit his observations at the hearing.

5. Having consulted, through the Registrar, those who would

be appearing before the Court, the President directed

on 22 February that the hearing should open on 18 March

(Rule 38).

6. On 7 March the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

instructions of the President.

7. The hearing took place in public in the Human Rights

Building, Strasbourg, on the appointed day. The Court had held

a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, on secondment to

the Diplomatic Legal Service, Ministry

of Foreign Affairs, Co-Agent;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr P. Barone, avvocato, Counsel.

The Court heard their addresses and their replies to its

questions.

8. On 3 June the applicant produced detailed figures for his

claim for just satisfaction, but the Court rejected them as out

of time.

AS TO THE FACTS

I. The circumstances of the case

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.

A. The trial

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.

B. The applicant's conduct after his release on 27 March 1980

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.

C. The retrial and the fresh appeal

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.

D. The refusal to extradite the applicant to Italy

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.

II. The relevant domestic law

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."

PROCEEDINGS BEFORE THE COMMISSION

26. In his application of 9 May 1986 to the Commission

(no. 12151/86) Mr F.C.B. complained of a violation of the rights

of the defence, on the ground that as he was wrongly held to be

unlawfully absent, he did not have a fair trial. He relied on

Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the

Convention.

27. The Commission declared the application admissible

on 16 March 1989. In its report of 17 May 1990 (made under

Article 31) (art. 31) it expressed the unanimous opinion that

there had been a violation of Article 6 paras. 1 and 3 (c)

(art. 6-1, art. 6-3-c). The full text of the Commission's

opinion is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar. For practical reasons this annex will

appear only with the printed version of the judgment

(volume 208-B of Series A of the Publications of the Court), but

a copy of the Commission's report is obtainable from the

registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF PARAGRAPH 1 IN CONJUNCTION WITH

PARAGRAPH 3 (c) OF ARTICLE 6 (art. 6-1, art. 6-3-c)

28. Mr F.C.B. complained of the fact that the Milan Assize

Court of Appeal had tried him in his absence. He alleged a

violation of Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c)

of the Convention, which read as follows:

"1. In the determination ... of any criminal charge against him,

everyone is entitled to a fair ... hearing ... by [a]

tribunal ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

(c) to defend himself in person or through legal assistance of

his own choosing ... ;

... ."

The Commission agreed with this submission, but it was contested

by the Government.

29. Unlike the Goddi, Colozza and Brozicek cases (judgments

of 9 April 1984, Series A no. 76, 12 February 1985, Series A

no. 89, and 19 December 1989, Series A no. 167), the present case

relates only to the opportunity for a person charged with a

criminal offence to attend his trial alongside his counsel.

As that is the fundamental question and as the requirements of

paragraph 3 of Article 6 (art. 6-3) are to be seen as particular

aspects of the right to a fair trial guaranteed by paragraph 1

(art. 6-1), the Court will examine the complaint from the point

of view of these two provisions in conjunction (see, as the most

recent authority, the Isgrò judgment of 19 February 1991,

Series A no. 194-A, p. 12, para. 31).

30. The applicant claimed that he did not know when his trial

before the Milan Assize Court of Appeal would take place, as he

was in solitary confinement while in custody in the Netherlands

(see paragraph 16 above). He also submitted that the attempted

notification on 25 November 1983 and the service on

15 December 1983 were null and void (see paragraph 17 above).

31. The Government, on the other hand, were convinced that

Mr F.C.B. had been made aware of the trial date by his lawyer and

his family, who had been notified on 23 October and

15 December 1983 respectively (see paragraph 17 above).

32. The Commission thought it unlikely that the applicant was

unaware of when the trial would open, as he was certainly in

contact with a co-defendant, his family and his lawyer. In

particular, it was difficult to see how else his lawyer could

within two weeks have submitted written evidence of his client's

inability to attend his trial (see paragraph 20 above). The

Commission expressed the opinion, however, that such knowledge

was no substitute for personal service, only the latter being

conclusive.

33. The Court points out firstly that Mr F.C.B., who was not

present at the hearing before the Milan Assize Court of Appeal

despite the fact that he was charged with very serious crimes

(see paragraph 10 above), had not expressed the wish to waive

attendance. Moreover, that court had learnt from concurring

sources (Mr F.C.B.'s counsel and two co-defendants) that

apparently he was in custody in the Netherlands. Yet it did not

adjourn the trial, nor did it investigate further to see whether

the applicant had indeed consented to not being present; it

merely stated that it had not been provided with proof that he

was unable to attend.

It must also be borne in mind that the Dutch authorities had

requested the co-operation of the Italian authorities, thereby

informing them that the applicant was in prison in the

Netherlands (see paragraph 16 above), but the Italian authorities

did not draw the necessary inferences as regards the proceedings

pending against Mr F.C.B. in Milan. That behaviour was scarcely

compatible with the diligence which the Contracting States must

exercise in order to ensure that the rights guaranteed by

Article 6 (art. 6) are enjoyed in an effective manner (see the

Colozza judgment already cited, Series A no. 89, p. 15,

para. 28).

The Court considers it unnecessary to decide whether, as the

Government maintained, indirect knowledge of the trial date

sufficed to allow the applicant to participate in the trial, a

right whose existence is, according to the Court's case-law,

shown by the object and purpose of Article 6 (art. 6) taken as

a whole (see, inter alia, the Brozicek judgment cited above,

Series A no. 167, p. 19, para. 45). Even if such a method does

comply with the requirements of this provision, it does not

appear that Mr F.C.B., whether expressly or at least in an

unequivocal manner, intended to waive his right to appear at the

trial and defend himself (see inter alia the above-mentioned

Colozza judgment, Series A no. 89, p. 14, para. 28).

34. In the Government's opinion the applicant was responsible

for the position, in that he failed to take the necessary steps,

either before or during the hearing on 9 April 1984, to prove

that he was indeed unable to attend and in that he omitted to

inform the appropriate authorities of his change of address.

They suggested that this was an attempt by him to delay a verdict

which was bound to be adverse.

35. The Court considers these two criticisms to be unfounded.

As to the first point, it has not been shown that Mr F.C.B. was

aware of the date of the trial.

As to the second point, the applicant's conduct may give rise to

certain doubts but the consequences which the Italian judicial

authorities attributed to it are - in the light of the

information available to the Milan Assize Court of Appeal

on 9 April 1984 - manifestly disproportionate, having regard to

the prominent place which the right to a fair trial holds in a

democratic society within the meaning of the Convention (see the

above-mentioned Colozza judgment, Series A no. 89, p. 16,

para. 32).

In the instant case, the Court therefore does not have to

determine whether and under what conditions an accused can waive

exercise of his right to appear at the hearing (see the same

judgment, p. 14, para. 28).

36. In sum, there has been a violation of paragraph 1 in

conjunction with paragraph 3 (c) of Article 6 (art. 6-1,

art. 6-3-c).

II. APPLICATION OF ARTICLE 50 (art. 50)

37. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a legal

authority or any other authority of a High Contracting Party is

completely or partially in conflict with the obligations arising

from the ... Convention, and if the internal law of the said

Party allows only partial reparation to be made for the

consequences of this decision or measure, the decision of the

Court shall, if necessary, afford just satisfaction to the

injured party."

A. Damage

38. Mr F.C.B. sought compensation for damage. He stated that

he wished to pass the money on to the Italian Association for

Cancer Research, but failed to quantify his claim in due time

(see paragraph 8 above).

The Court considers that in the present case the finding that

there has been a violation of Article 6 (art. 6) in itself

affords sufficient just satisfaction.

B. Costs and expenses

39. The applicant claimed a total of 89,500,000 Italian lire

in respect of lawyer's fees and costs relating to the domestic

and European proceedings.

The Court sees no causal link between the violation found and the

costs incurred before the domestic courts. Making an assessment

on an equitable basis, and in the light of the evidence before

it and its case-law on the point, it awards Mr F.C.B.

5,000,000 lire in respect of costs and expenses incurred before

the Convention organs.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6

paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention;

2. Holds that the respondent State is to pay to Mr F.C.B.

5,000,000 (five million) Italian lire in respect of costs and

expenses;

3. Dismisses the remainder of the claim for just

satisfaction.

Done in English and in French, and delivered at a public hearing

at the Human Rights Building, Strasbourg, on 28 August 1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar