Case of European Court of Human Rights, October 18, 2006 (case CASE OF HERMI v. ITALY)

Defense:Italy
Resolution Date:October 18, 2006
 
FREE EXCERPT

GRAND CHAMBER

CASE OF HERMI v. ITALY

(Application no. 18114/02)

JUDGMENT

STRASBOURG

18 October 2006

This judgment is final but may be subject to editorial revision.

In the case of Hermi v. Italy,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Mr. L. Wildhaber, prÈsident,

Mr C.L. Rozakis,

Mr J.-P. Costa,

Mr B.M. Zupančič,

Mr R. T¸rmen,

Mr C. BÓrsan,

Mr J. Hedigan,

Mr A.B. Baka,

Mr V. Zagrebelsky,

Mr J. Borrego Borrego,

Mrs A. Gyulumyan,

Mr. D. Spielmann,

Mr E. Myjer,

Mr David ThÛr Bjˆrgvinsson,

Mrs D. Jočienė,

Mr D. Popović,

Mrs I. Ziemele, juges,

and Mr T.L. Early, Section Registrar,

Having deliberated in private on 3 May 2006 and on 6 September 2006,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

  1. ††The case originated in an application (no. 18114/02) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ('the Convention') by a Tunisian national, Mr Fausi Hermi ('the applicant'), on 31 March 2002.

  2. ††The applicant was represented by Mr M. Marini and Mrs†D.†Puccinelli, lawyers practising in Guidonia (Rome). The Italian Government ('the Government') were represented by their Agent, Mr†I.M.†Braguglia, and their co-Agent, Mr F. Crisafulli.

  3. ††The applicant alleged, in particular, that he had been unable to participate in a hearing before the Rome Court of Appeal held in the context of criminal proceedings for drug trafficking.

  4. ††The application was allocated to the First Section of the Court (Rule†52 ß 1 of the Rules of Court). On 23 September 2004 it was declared partly admissible by a Chamber of that Section, composed of Mr†C.L.†Rozakis, Mr P. Lorenzen, Mr G. Bonello, Mr A. Kovler, Mr†V.†Zagrebelsky, Mrs E. Steiner and Mr K. Hajiyev, judges, and also of Mr†S.†Nielsen, Section Registrar.

  5. ††On 1 November 2004 the Court changed the composition of its Sections (Rule 25 ß 1). This case was assigned to the newly composed Fourth Section (Rule 52 ß 1).

  6. ††On 28 June 2005 a Chamber of the Fourth Section, composed of Sir†Nicolas Bratza, Mr J. Casadevall, Mr G. Bonello, Mr R. Maruste, Mr†V.†Zagrebelsky, Mr S. Pavlovschi and Mr L. Garlicki, judges, and of Mr†M.†O'Boyle, Section Registrar, delivered a judgment in which it held, by four votes to three, that there had been a violation of Article 6 of the Convention. It also awarded the applicant a thousand euros for non-pecuniary damage.

  7. ††On 23 September 2005 the Government requested that the case be referred to the Grand Chamber under Article 43 of the Convention and Rule†73. On 30 November 2005 a panel of the Grand Chamber granted the request.

  8. ††The composition of the Grand Chamber was determined according to the provisions of Article 27 ßß 2 and 3 of the Convention and Rule 24 of the Rules of Court.

  9. ††The applicant and the Government each filed a memorial.

  10. ††A hearing took place in public in the Human Rights Building, Strasbourg, on 3 May 2006 (Rule 59 ß 3).

    There appeared before the Court:

    (a)††for the Government

    Mr F. Crisafulli, judge, Ministry of Foreign Affairs, co-Agent,

    (b)††for the applicant

    Mrs D. Puccinelli, lawyer, Counsel.

    The Court heard addresses by them.

    THE FACTS

    I.††THE CIRCUMSTANCES OF THE CASE

  11. ††The applicant was born in 1969 and is currently serving a sentence in Viterbo Prison.

    A.††The applicant's arrest and conviction at first instance

  12. ††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 two lawyers of his own choosing, Mr M. Marini and Mrs D. Puccinelli.

  13. ††A hearing was held in private before the Rome preliminary hearings judge (giudice dell'udienza preliminare) on 25 February 2000, attended by the applicant and his two lawyers. The record of the hearing shows that there was no interpreter present. The applicant stated that he had understood the content of the charge and the evidence against him and could speak Italian. He subsequently requested adoption of the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure ('the CCP'). His lawyers requested that their client's detention pending trial be replaced by house arrest (arresti domiciliari). The 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 and adjourned the proceedings.

  14. ††A further hearing was held in private on 24 March 2000, at which the applicant and his two lawyers were present. The record of the hearing states that the applicant 'speaks Italian' (si da atto che parla la lingua italiana). One of the applicant's lawyers requested that his client be released on the ground that the drugs in his possession had been intended for his personal use. In the alternative, he requested that his client's detention pending trial be replaced by a less stringent security measure. The requests were rejected by the preliminary hearings judge.

  15. ††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.

    B.††The proceedings before the Court of Appeal and the Court of Cassation

  16. ††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.

  17. ††On 1 September 2000 Mr Marini was informed that the hearing had been set down for 3 November 2000. The applicant, who was in Rome Prison, was notified on the same day. He received a letter entitled 'Notice to appear in appeal proceedings before the court sitting in private' (decreto di citazione per il giudizio di appello davanti la Corte in camera di consiglio), the relevant parts of which read:

    'The President ... of the Court of Appeal ... in view of the notice of appeal lodged by (1) Basilaran Pacilyanathan, born [in] Sri Lanka on 1 November 1964, who is [in] Vasto Prison and (2) Fauzi [sic] Hermi, born [in] Tunisia on 27 January 1969, who is [in] Regina Coeli Prison ... against the judgment of the Rome preliminary hearings judge of 24 March 2000 convicting them as [set out] in the official record[;] whereas in the appeal proceedings the court must sit in private as the circumstances are those provided for in Articles 443 ß 4 [and] 599 ß 1 of the CCP ... ; having regard to Article†601 of the aforementioned Code of Criminal Procedure; gives notice to the above-mentioned [persons] to appear at the hearing which the Court of Appeal ... is to hold in private on 3 November 2000, at 9 a.m., to rule on the above appeal. The appellants may, up to five days before the hearing and through the intermediary of [their] lawyers, examine at the registry the records and documents and ... make a copy of and consult them...'

  18. ††Between 1 September 2000 and the day of the hearing, the applicant had no contact with his lawyers.

  19. ††On 23 October 2000 the applicant's lawyers filed pleadings with the registry of the Rome Court of Appeal. They submitted that there was no proof that the drugs in the applicant's possession had been intended for sale; the judges should therefore have accepted the applicant's assertion that they had been for his own personal use. Moreover, the expert chemical analysis of the drugs had been performed by the police without the defendant's lawyer being present, and was therefore null and void. The first-instance judge had also omitted to rule on the objection of unconstitutionality raised by the defence. In the alternative, the lawyers requested a reduction of the applicant's sentence.

  20. ††At the hearing on 3 November 2000 Mr Marini requested an adjournment of the hearing on the ground that Mrs Puccinelli, the applicant's other lawyer, was ill. The Court of Appeal dismissed the request. Mr Marini then 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.

  21. ††In a judgment of 3 November 2000 the Court of Appeal upheld the judgment at first instance.

  22. ††The applicant appealed on points of law. He alleged, inter alia, that the appeal judges had not allowed him to attend his trial and that the notice to appear at the appeal hearing had not been translated into Arabic.

  23. ††In his final submissions, the public prosecutor requested that the impugned decision be set aside.

  24. ††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 procedural documents 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 volition. Furthermore, the applicant had not made clear his wish to participate in the appeal...

To continue reading

REQUEST YOUR TRIAL