The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Brozicek case delivered on 19 December 1989 and
transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application against
Italy lodged with the European Commission of Human Rights
on 7 May 1984 under Article 25 (art. 25) of the Convention
by Mr Georg Brozicek, a German national who complained that he
had not been informed, in a language which he understood, of the
nature and the cause of the criminal charges brought against him
and that, since he had been tried in absentia without having any
opportunity to defend himself, he had not had a fair trial;
Recalling that the case was brought before the Court by the
Commission on 11 May 1988;
Whereas in its judgment of 19 December 1989 the Court:
- dismissed by fifteen votes to five the objection of non-
exhaustion of domestic remedies as regards the possibility
of a "late appeal";
- dismissed unanimously the remainder of the said objection;
- held by fifteen votes to five that there had been a
violation of paragraphs 3.a and 1 of Article 6 (art. 6-3-a,
art. 6-1) of the Convention;
- held unanimously, as regards the non-pecuniary damage
sustained by the applicant, that the judgment constituted
in itself adequate just satisfaction for the purposes of
Article 50 (art. 50);
- held unanimously that the respondent State was to pay to
the applicant in respect of costs and expenses 4 027,27
Deutschmarks and 1 900 Swiss francs;
- dismissed unanimously the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Italy to inform it of the
measures which had been taken in consequence of the judgment of
19 December 1989, having regard to its obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Italy gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that the Government of Italy has
paid the applicant the sums provided for in the judgment of
19 December 1989,
Declares, after having taken note of the information
supplied by the Government of Italy, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH (93) 63
Information provided by the Government of Italy
during the examination of the Brozicek case
by the Committee of Ministers
The new Code of Criminal Procedure, which entered into force
on 24 October 1989, stipulates in Article 169, paragraph 3, that
the indictment shall be drafted in the language of the accused
if it does not appear from the file that the accused knows
Italian.
Article 183bis of the Code of Criminal Procedure, as
modified by Section 1 of Law No. 22 of 23 January 1989, has
reformed the Italian regulations in respect of restitution of
time ("restituzione nel termine") and anticipated the regulations
laid down in Article 175 of the new Code of Criminal Procedure
in such a manner as to align these regulations with the
requirements of the European Convention on Human Rights as
developed by the European Court of Human Rights. Article 183bis,
accordingly, lays down in its second paragraph that restitution
of time in order to appeal against an in absentia judgment may
be requested, not only in cases involving exceptional
circumstances or force majeure, but also when the accused can
produce evidence that he did not have effective knowledge of the
judgment in question. However, this right cannot be exercised
when the defence counsel has already submitted an appeal or when
it is his fault that the accused has not been able to gain
knowledge of the judgment or - following notification of the in
absentia judgment according to the procedure prescribed for
accused persons who are untraceable ("irreperibili") - when the
accused has voluntarily put himself in such a position as not to
be able to be notified of the proceedings.
Considering the aim and wording of the new regulations cited
above and the increased willingness demonstrated by the Italian
courts to take into account the requirements of the Convention
(see, inter alia, the judgment of the Court of Cassation, First
Criminal Section, of 12 May 1993 in the Medrano case), the
Italian Government is of the opinion that the Italian courts will
not fail to respect the principles laid down in the Brozicek
judgment.
Full & Egal Universal Law Academy