Information Note on the Court’s case-law No. 87
June 2006
Fodale v. Italy - 70148/01
Judgment 1.6.2006 [Section III]
Article 5
Article 5-4
Procedural guarantees of review
Unfairness of proceedings to review the lawfulness of detention: violation
Facts: Criminal proceedings were brought against the applicant, who was charged with a number of offences and in particular with being a member of a mafia-type organisation. On 12 July 1999 the investigating judge remanded him in custody. On an appeal by the applicant the detention order was set aside, on 2 August 1999, by the court’s “specialised division” having jurisdiction for the review of precautionary measures. The public prosecutor appealed to the Court of Cassation, which fixed 15 February 2000 as the date of the hearing. However, no summons was served on the applicant or his lawyer. The Court of Cassation quashed the order of 2 August 1999 and remitted the case to the specialised division. At its hearing the applicant’s counsel requested leave to adduce further evidence. He also argued that the judgment of 15 February 2000 was null and void as he had not been informed of the date of the hearing. The specialised division agreed to the production of the new evidence indicated by defence counsel but rejected the argument that the cassation judgment was null and void. On 13 April 2000 the specialised division upheld the investigating judge’s decision of 12 July 1999 as regards two of the charges and set aside the remainder of the decision. The applicant was then arrested and remanded in custody. He appealed to the Court of Cassation, again claiming that the judgment of 15 February 2000 was null and void, but his appeal was dismissed. However, in the criminal proceedings against him, the applicant was acquitted of all the charges in an appeal court judgment, which was upheld by the Court of Cassation.
Law: Whilst the proceedings for review of the lawfulness of the applicant’s detention had been brought when the applicant was not detained, the public prosecutor, by applying to have the order of 2 August 1999 set aside, had sought to restore the order remanding the applicant in custody. Accordingly, if the prosecutor’s appeal had been dismissed, the decision to release the applicant would have become final but, if it was allowed, the question of the desirability of remanding the applicant in pre-trial detention would have been referred back to the appropriate court. In those circumstances, the proceedings before the Court of Cassation had been decisive for the issue of the lawfulness of the applicant’s detention. Consequently, Article 5(4) was applicable to the proceedings in question. Having regard to the dramatic consequences of the deprivation of liberty on the fundamental rights of the person concerned, any proceedings under Article 5(4) of the Convention were required as a rule, as far as possible in the circumstances of a judicial investigation, to respect the fundamental principles of a fair trial, such as the right to adversarial proceedings. In the present case the Court of Cassation had set the public prosecutor’s appeal down for hearing on 15 February 2000, but no summons had been served on the applicant or his lawyer. The applicant had therefore been denied the possibility of filing pleadings or making oral submissions at the hearing in reply to the prosecution’s arguments. By contrast, the prosecution had been represented before the Court of Cassation. In those circumstances, the Court could not find that the requirements of adversarial process and equality of arms had been complied with.
Conclusion: violation (unanimously).
Article 41 – The finding of a violation afforded in itself sufficient just satisfaction for the non-pecuniary damage sustained.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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