EHRM, 18-10-2006, nr. 18114/02

The applicant submitted that any proceedings (whether ordinary or summary and whether at first, second or third instance) should be conducted in public and in the presence of the defendant. In the instant case, the Court of Appeal had ruled on questions of fact and of law. The appeal had related also to the question whether the heroin in the applicant's possession had been for his own personal use and to the repetition of the expert chemical analysis. On appeal, the defendant had the right to request that he or she be heard, and the appeal court could, of its own motion, reopen the investigation, take new evidence, examine new witnesses and order expert reports in order to establish the truth.

To argue, as the Government had, that adoption of the summary procedure made the presence of the defendant superfluous, was contrary to the spirit of the law. Moreover, as it was impossible to predict what would happen at the appeal stage, the participation of the defendant could not be ruled out in advance. In the present case the hearing had taken place in private, without members of the public or the defendant being present, in flagrant breach of Article 6 of the Convention. Moreover, Article 6 gave every defendant the right to defend himself in person, to examine witnesses or have them examined and to have the assistance of an interpreter, none of which was possible in his absence. The defendant should always have the opportunity of defending himself in person and of making in person factual and legal submissions on his own behalf.

The applicant pointed out that the notice of the date of the hearing had been written in Italian, a language which he did not understand. At the time of his trial, he had had a passive, scant and superficial command of spoken Italian and had been quite unable to read the language. He would therefore have been incapable of understanding a technically complex legal document written in Italian. In that connection, the applicant challenged the authenticity of the letters produced by the Government which, in any case, had been written well after his trial had ended. Moreover, at the trial stage, the applicant had been able to understand the charges and the evidence against him only because they had been translated into French by Mr Marini, who had also proposed the adoption of the summary procedure to him.

Accordingly, it had been for the authorities to provide a translation of the notice in one of the two languages spoken by the applicant, namely Arabic and French. Assistance by a third party (a fellow prisoner or the defence lawyer) was not a valid substitute. It was unrealistic in an Italian prison setting to expect that a prisoner might be able to obtain a translation of the procedural documents in his case. Interpreters had to be paid for their services and could be engaged only at the request of the prosecution. Furthermore, it was inconceivable that a defendant whose native language was Arabic would be conversant with the finer points of Italian procedure, unless his rights and their limits had been spelled out for him.

The applicant admitted that he had not requested leave to appear, but considered that he had not waived that right either. Waiver of that right had to be explicit and could not be presumed. Having been brought to the hearings before the preliminary hearings judge as a matter of course, he had expected the same thing to happen in the appeal proceedings. Mr Marini, on realising that his client was not present at the hearing on 3 November 2000, had requested at the outset of the proceedings that he be brought to the hearing room. Moreover, the Chief Prosecutor at the Court of Cassation had requested that the appeal proceedings be declared null and void, arguing that the applicant had the right to appear and that the notice of the date of the hearing, which had not been translated into Arabic, had not set out the rights of the defendant or the steps to be taken in order to assert those rights in a manner comprehensible to the applicant.

Whereas the Government maintained that the applicant should have submitted a written request in Italian to be brought before the appellate court, at least five days before the hearing, such a requirement was itself in breach of the Convention. A defendant could not be made to complete a series of oral and written formalities in order to assert his right to participate in the appeal hearing. The summary procedure, under which the presence of the defendant was not required, was contrary to the Convention and the Italian Constitution and should be abolished.

The applicant considered that the authorities should have set out all his rights, without exception, in the notice informing him of the date of the hearing. They should also have given details of the formalities to be completed in order to take part in the appeal proceedings. However, one had only to read the impugned notice to see that no mention was made of those formalities. It could not be left to lawyers to fill in the gaps left by the authorities.

Lastly, the Court of Cassation had quashed a conviction on account of the fact that the notice of the date of the hearing had not been translated into the defendants' mother tongue (the applicant cited judgment no. 293, Sixth Section, 14 January 1994, in the Chief Mbolu case). On that occasion it had reiterated that Article 143 § 1 of the CCP, which stipulated that every non-national defendant had the right to be assisted by an interpreter, applied to all the oral and written procedural decisions which were served on the defendant, and in particular to the notice of the date of the hearing, which was a crucial procedural document. Italian case-law, therefore, was not unanimous in that regard.

The Government pointed out at the outset that the appeal proceedings had been conducted under the summary procedure, a simplified procedure which the applicant himself had requested and which entailed certain advantages for the defendant. Under that procedure, in which the decision was taken on the basis of the file held by the Public Prosecutor's Office and the production of fresh evidence was ruled out in principle, the importance of the defendant's presence was reduced. The appeal was discussed in private and evidence was heard from the parties only if they appeared.

Under Italian law, where the rights of the defence could not be exercised jointly by the defendant and his representative, the technical defence put forward by the lawyer was considered to be of greater importance. That was particularly true in cases such as the present one where, since the accused had been arrested in flagrante delicto, the arguments adduced by the defence had been of an essentially legal nature and the input from the applicant himself had been negligible. The applicant had never attempted to deny the offence and had not made his request for adoption of the summary procedure subject to the admission of new evidence, as permitted by Article 438 § 5 of the CCP.

The Court of Appeal's jurisdiction had been limited to examining the issues raised in the grounds of appeal (the legal concepts of ‘trafficking’, ‘personal use’ of drugs and a ‘considerable quantity’ of heroin, whether an expert report was null and void, and the interpretation and application of section 73 of the Narcotics Act and its constitutionality), all issues of an essentially legal nature. True, the question of the guilt or innocence of the defendant had been at issue, but from a legal rather than a factual standpoint. Nor had the Court of Appeal been called upon to assess the character and personality of the defendant or to determine whether he was a drug addict. While it could re-examine the evidence already contained in the file, that process simply amounted to ascertaining the existence of evidence that had already been obtained.

Furthermore, the Court of Appeal had no power to increase the sentence. The Government further pointed out that reopening of the investigation at the appeal stage was an exceptional measure which could be taken only if the judge deemed it necessary. It was even less common under the summary procedure. In addition, during the proceedings at first instance the applicant had attended two hearings before the preliminary hearings judge. Although a lawyer was required to be present, he had been free to intervene in person in his own defence.

In view of the circumstances outlined above, and on the basis of the Court's case-law in Kamasinski v. Austria (judgment of 19 December 1989, Series A no. 168) and, conversely, in Kremzow v. Austria (judgment of 21 September 1993, Series A no. 268-B), the Government concluded that the presence of the defendant at the appeal hearing was not required under the Convention. In any event, even assuming that an irregularity had occurred as a result of the applicant's absence from the appeal hearing, the proceedings taken overall had been fair.

In that connection the Government pointed out that Article 6 of the Convention required only those written documents which were crucial to an exact understanding of the charges against the accused, and hence to the effective exercise of his defence rights, to be translated. In the instant case the document concerned had been a simple notification which had no bearing on the merits of the case or the charges against the defendant. The State had therefore been under no obligation to provide a translation. In any event, if he had not fully understood the notice of the date of the hearing, the applicant could have asked to be assisted free of charge by an interpreter; alternatively he could have asked a fellow prisoner to translate it or sought clarification from the lawyer he had appointed, who was supposed to be proficient in Italian and able to grasp the meaning of a perfectly straightforward legal document.

It was true that the impugned notice had not indicated the procedure to be followed in order to participate in the hearing. However, the State could not be required to explain to individuals the procedural subtleties of each oral or written step in the proceedings. Establishing such a principle, particularly in the case of straightforward formalities, was liable to undermine the effectiveness of the judicial system. The lawyers appointed by the applicant, on the other hand, could have got in touch with their client to explain that, if he wished to take part in the appeal hearing, he should ask to be brought to the courtroom. The lawyers could also have requested his transfer when they filed pleadings with the registry of the Rome Court of Appeal on 23 October 2000 (see paragraph 19 above).

In addition, the record of the hearing of 25 February 2000 showed that the applicant had made the request for adoption of the summary procedure himself. He therefore knew the language of the proceedings and would have been able to understand his lawyer's explanations concerning the summary procedure. This was borne out by the fact that, at the hearings on 25 February and 24 March 2000, the applicant had said that he could speak Italian and that he had understood the charges against him. The applicant had lived in Italy since at least 1990 and, when he had been arrested on 26 April 1999, had displayed sufficient mastery of Italian to admit to theft and to provide details as to the circumstances of the offence (see paragraph 26 above). The applicant had also handed over to the authorities in the prison where he was detained a statement to the effect that he was dismissing his previous lawyers and appointing two new counsels to represent him, and had written two long letters by hand. All those documents had been written in Italian. Even assuming that the applicant had exaggerated his command of Italian, his statements had given the authorities legitimate grounds for presuming that he was capable of understanding the notification of the appeal hearing.

The Government submitted that, by omitting to inform the authorities of his wish to be brought before the Court of Appeal, the applicant had, tacitly but unequivocally, waived his right to participate in the hearing of 3 November 2000. The request to be brought to the hearing room had to be made at least five days before the hearing (Article 127 § 2 of the CCP, which the Court of Cassation, in its judgment no. 6665 of 1995, had found to be applicable to such situations — see paragraph 33 above). Having received the notice on 1 September 2000, the applicant had had almost two months to make his request.

It was strange and regrettable, in the Government's view, that neither of the applicant's two lawyers had felt the need to talk to their client, or to telephone him or write to him ahead of the appeal hearing. As the lawyers had been appointed by the applicant, the authorities could not be held responsible for that omission, since any shortcomings on the part of the lawyers in question had not been manifest and had not been brought to the attention of the courts in good time.

The applicant in the instant case had been, or should have been, perfectly aware of the proceedings, the appeal, the date of the hearing and the need to make a request to the prison authorities to be taken to the hearing room. To find in those circumstances that the absence of the accused from the appeal hearing had not been fully informed and intentional would represent a clear departure from the Court's settled case-law and would alter the balance which had to be struck between the requirements of justice and the rights of the defence. The Government referred in that connection to Medenica v. Switzerland (no. 20491/92, ECHR 2001-VI) and, conversely, to the Grand Chamber judgment in Sejdovic v. Italy, (no. 56581/00, 1 March 2006).

Lastly, the request made by Mr Marini at the hearing could not carry decisive weight. In Italy, the presence of the defendant at the hearing was optional rather than compulsory. The contradiction between the attitude of the accused and his lawyer's statements could not therefore be resolved by giving greater weight to the latter. The lawyer's task was to represent and defend his client; he could not take the place of his client in performing actions falling within the private sphere relating to freedom of decision and action.

The Court notes first of all that the applicant was present at the first-instance hearings on 25 February and 24 March 2000 before the Rome preliminary hearings judge. It is true that, as pointed out by the applicant, these two hearings were not public but were conducted in private.

However, the Court observes that the fact that the hearings were not held in public was the result of the adoption of the summary procedure, a simplified procedure which the applicant himself had requested of his own volition. The summary procedure entails undoubted advantages for the defendant: if convicted, he receives a substantially reduced sentence, and the prosecution cannot lodge an appeal against a decision to convict which does not alter the legal characterisation of the offence (see Articles 442 § 2 and 443§ 3 of the CCP — paragraph 28 above). On the other hand, the summary procedure entails a reduction of the procedural guarantees provided by domestic law, in particular with reference to the public nature of the hearings and the possibility of requesting the admission of evidence not contained in the file held by the Public Prosecutor's Office.

The Court considers that the applicant, who was assisted by two lawyers of his own choosing, was undoubtedly capable of realising the consequences of his request for adoption of the summary procedure. Furthermore, it does not appear that the dispute raised any questions of public interest preventing the aforementioned procedural guarantees from being waived (see Kwiatkowska, cited above).

In that connection the Court reiterates that it has accepted that other considerations, including the right to trial within a reasonable time and the related need for expeditious handling of the courts' case-load, must be taken into account in determining the necessity of a public hearing at stages in the proceedings subsequent to the trial at first instance (see, for example, Helmers, cited above, p. 16, § 36; Jan Åke Andersson v. Sweden, judgment of 29 October 1991, Series A no. 212-B, p. 45, § 27; Fejde, cited above, pp. 68–69, § 31; and Hoppe v. Germany, no. 28422/95, § 63, 5 December 2002). Introduction of the summary procedure by the Italian legislature seems to have been expressly aimed at simplifying and thus expediting criminal proceedings (see, mutatis mutandis, Rippe v. Germany (dec.), no. 5398/03, 2 February 2006).

In the light of the above considerations, the fact that the hearings at first and second instance were conducted in private, and hence without members of the public being present, cannot be regarded as being in breach of the Convention. It remains to be determined whether the applicant's absence from the hearing of 3 November 2000 before the Rome Court of Appeal infringed his right to a fair trial.

Under Italian law, the applicant had an indisputable right to attend the appeal hearing, on condition that he made a request to be brought to the hearing room. That is not contested by the Government and, moreover, is made clear by the domestic provisions concerning private hearings. In particular, Article 127 § 3 of the CCP stipulates that ‘evidence shall be heard from … the other recipients of the notice [of the date of the hearing]’ — a category which included the defendant — ‘if they appear at the hearing’ (see paragraph 32 above). Article 599 § 2 of the CCP states that the proceedings are to be adjourned if ‘a defendant who has expressed a wish to appear’ has a legitimate reason for not attending (see paragraph 31 above). It is hard to see how this would be possible if the legislation did not confer on the defendant the right to take part in the appeal hearing.

That does not necessarily imply, however, that the presence of the applicant at the appeal hearing is required by Article 6 § 1 of the Convention, as the requirements of that provision are autonomous in relation to those of national legislation.

In the instant case, the Court deems it appropriate to proceed on the basis of the following facts. The Rome Court of Appeal, as is readily understandable, was empowered to rule solely on those aspects of the decision referred to in the grounds of appeal (see Article 597 § 1 of the CCP — paragraph 29 above). In the grounds of appeal, the applicant confined himself to reiterating the arguments adduced in his defence before the preliminary hearings judge, namely that the drugs in his possession had been for his own personal use. He also alleged that the way in which the legislation on drugs had been interpreted was unconstitutional (see paragraphs 14 and 16 above). In addition, in the pleadings which they filed on 23 October 2000, the applicant's lawyers argued that the expert chemical analysis of the drugs was null and void owing to procedural defects (see paragraph 19 above).

In the Court's view these grounds related essentially to the legal characterisation of the offence and to the interpretation of the domestic legislation on drugs and the validity of expert reports. On the other hand, the fact that the applicant had been in possession of the drugs was not disputed at the appeal stage (see, mutatis mutandis, Fejde, cited above, p. 69, § 33). The applicant had been arrested in flagrante delicto (see paragraph 12 above) and at no stage in the proceedings attempted to deny the factual basis of the charges against him. In particular, insofar as the applicant continued to maintain at the appeal stage, despite all appearances to the contrary, that the drugs found in his possession had been intended for his own personal use and not for sale, even though the quantity concerned, according to the preliminary hearings judge, was equivalent to more than twenty years' average consumption (see paragraph 15 above), the Court fails to see how in the present case the physical presence of the applicant at the appeal hearing could in any way have influenced the characterisation of the offence of drug trafficking which had formed the basis for his conviction.

The Court also notes that, as the prosecution could not appeal against a decision to convict which did not alter the characterisation of the offence, the Rome Court of Appeal had no power to increase the applicant's sentence. The court could uphold the sentence imposed at first instance, reduce it or acquit the applicant. In that respect the present case differs from that of Kremzow, cited above.

Lastly, the Court notes that, under the summary procedure, which was requested by the applicant, the production of fresh evidence is ruled out in principle, as the decision must be taken on the basis of the documents contained in the file held by the Public Prosecutor's Office (see, in particular, Articles 438 § 1 and 442§ 1a of the CCP — paragraph 28 above). It is true that, under the terms of paragraph 5 of Article 438, cited above, the defendant may make his request for adoption of the summary procedure subject to the admission of fresh evidence necessary for the court to reach a decision. However, that did not occur in this case, as the applicant had consented to a decision being given on the sole basis of the evidence obtained by the authorities during the preliminary investigation. Accordingly, he knew or should have known through his lawyers that the appeal hearing would be confined in principle to hearing the arguments of the parties, without any evidence being produced or witnesses examined.

In the light of the above, and having taken into account all the specific circumstances of the present case, the Court considers that, regard being had to the fact that the applicant participated in the first-instance hearings and that those proceedings were of an adversarial nature, the requirements of a fair trial, as defined by the Convention, did not necessitate the presence of the applicant at the appeal hearing.

That finding is sufficient basis for concluding that there has not been a violation of Article 6 § 1 of the Convention. In any event, the Court observes that, even assuming that the applicant had a right under the Convention to appear at the hearing of 3 November 2000, he was duly informed of the date of that hearing and waived his right to appear.

With regard to the last point, and unlike the Chamber, the Grand Chamber considers that it is clear from the case file that the applicant had sufficient command of Italian to grasp the meaning of the notice informing him of the date of the appeal court hearing. It observes that, at the first-instance hearings on 25 February and 24 March 2000, the applicant himself stated that he could speak Italian and that he had understood the content of the charge and the evidence against him (see paragraphs 13 and 14 above). The truth of that assertion and the fact that it had been made spontaneously were not disputed by the applicant or his lawyers during the domestic judicial proceedings. Moreover, as the Government rightly pointed out, at the time of the appeal proceedings the applicant had been living in Italy for at least ten years, and when he was arrested in 1999 had been able to provide the carabinieri with details about the factual basis of the allegations against him (see paragraph 26 above).

In the Court's view, these elements gave the domestic judicial authorities sufficient reason to believe that the applicant was capable of grasping the significance of the notice informing him of the date of the hearing, and that it was not necessary to provide any translation or interpretation. The Court also notes that the applicant does not appear to have informed the prison authorities of any difficulties in understanding the document in question.

It is regrettable that the notice did not indicate that it was for the applicant to request, at least five days before the date of the hearing, that he be brought to the hearing room (see paragraph 17 above). However, the State cannot be made responsible for spelling out in detail, at each step in the procedure, the defendant's rights and entitlements. It is for the legal counsel of the accused to inform his client as to the progress of the proceedings against him and the steps to be taken in order to assert his rights.

In the instant case, the applicant was informed of the date of the appeal hearing on 1 September 2000, that is, more than two months in advance of the hearing. The same was true of the lawyer appointed by the applicant (see paragraph 17 above). During that time, the applicant's lawyers did not deem it necessary to get in touch with their client (see paragraph 18 above). There is nothing in the case file to indicate that the applicant attempted to make contact with them.

The Court cannot but regret the lack of communication between the applicant and his lawyers. Precise explanations concerning the request to be brought to the hearing, and the time-limit and arrangements for making such a request, could have dispelled any doubts the applicant might have had in that regard. In that connection, the Court points out that it is clear from the wording of Article 599 § 2 of the CCP (see paragraph 31 above) and the case-law of the Court of Cassation (see judgment no. 6665 of 1995 — paragraph 33 above) that a prisoner wishing to attend the appeal hearing in the context of a summary procedure must make known his wish to be brought to the hearing at least five days in advance. That would have been known to the lawyers appointed by the applicant.

The Court reiterates that while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to ‘defend himself in person or through legal assistance …’, it does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court's task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial (see Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 30). In that connection it must be borne in mind that the Convention is intended to ‘guarantee not rights that are theoretical or illusory but rights that are practical and effective’ and that assigning a counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 38, and Artico v. Italy, judgment of 13 May 1980, Series A no. 37, p. 16, § 33).

Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes or appointed by the accused. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Daud v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, pp. 749–750, § 38, and Sannino v. Italy, no. 30961/03, § 49, 27 April 2006).

In the present case, the applicant at no point alerted the authorities to any difficulties encountered in preparing his defence. Furthermore, in the Court's view, the shortcomings of the applicant's counsel were not manifest. The domestic authorities were therefore not obliged to intervene or take steps to ensure that the defendant was adequately represented and defended (see, conversely, Sannino, cited above, § 51).

In addition, the Court notes that the Rome Court of Appeal interpreted, in substance, the applicant's omission to request his transfer to the hearing room as an unequivocal, albeit implicit, waiver on his part of the right to participate in the appeal hearing (see paragraph 20 above). In the particular circumstances of the present case, the Court considers that that was a reasonable and non-arbitrary conclusion.

It observes in that regard that the obligation on the applicant to make clear his wish to be brought to the hearing did not entail the completion of any particularly complex formalities. Moreover, the transfer of a prisoner calls for security measures and needs to be arranged in advance. A strict deadline for submitting the request for transfer is therefore justified.

It should also be pointed out that there were further indications lending weight to the conclusion that the applicant did not wish to take part in the appeal hearing. Firstly, there is nothing in the case file to indicate that, on the day of the hearing, when he realised that he was not going to be taken to the hearing room, the applicant protested to the prison authorities. Secondly, in their pleadings of 23 October 2000, filed with the registry of the Court of Appeal a mere eleven days before the date of the hearing, the applicant's lawyers did not request that Mr Hermi be brought to the hearing room.

It is true that, at the appeal hearing, Mr Marini objected to the proceedings being continued in his client's absence (see paragraph 20 above). However, in the Court's view, that objection, made at a late stage and unsupported by any statement from the defendant himself, could not outweigh the attitude adopted by the applicant.

In the light of the above, and taking account in particular of the conduct of the applicant's lawyers, the Court considers that the Italian judicial authorities were entitled to conclude that the applicant had waived, tacitly but unequivocally, his right to appear at the hearing of 3 November 2000 before the Rome Court of Appeal. Moreover, the applicant could have asserted that right without the need for excessive formalities.

It follows that there has been no violation of Article 6 of the Convention.