AS TO THE ADMISSIBILITY OF
Application No. 23451/94
by Giuseppe MOTTA
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 6 April 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 November 1993
by Giuseppe MOTTA against Italy and registered on 14 February 1994
under file No. 23451/94 ;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
(a) The particular circumstances of the case
The applicant is an Italian national, born in 1952 and currently
residing in Rome. He is a private detective by profession.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 25 April 1987, on the occasion of an inspection of the
applicant's car in the applicant's presence, the police found a bullet
for military use. On that occasion, the applicant indicated an address
for service in Rome.
He was subsequently charged with illegal detention of military
ammunition.
At the address he had indicated to the police, on 5 January 1988
the applicant was delivered a notice to appear before the police on 8
January 1988, in order to be interrogated in relation to the charge
against him. He failed to do so.
The police, having tried in vain to contact the applicant at that
address, and after having carried out further searches, concluded, in
their report dated 14 March 1988, that the applicant had become
untraceable.
By decree issued by the Public Prosecutor's Office of Rome on
28 March 1988, the applicant was therefore declared untraceable
("irreperibile") and a lawyer for his defence was appointed. The
notification of the summons to appear before the investigating judge
was therefore effected by being lodged in the registry, and the
applicant's appointed lawyer was promptly informed thereof (see below).
By judgment of the Rome Court of 6 October 1988, the applicant
was convicted in absentia ("in contumacia") and sentenced to six
months' imprisonment; the sentence was suspended.
On 9 January 1989 the extract from the judgment rendered by
default was served on the applicant at another address; it was
delivered to his cohabiting partner, who allegedly forgot to inform him
thereof. The judgment became final on 13 January 1989.
On 12 October 1990, the applicant applied to the Rome Court of
Appeal for a review ("revisione") of the first instance judgment. The
Court of Appeal rejected the application as manifestly ill-founded on
21 May 1991, after a hearing on the same day.
On 7 December 1991 the applicant, claiming to have only recently
learnt about his conviction and sentence and challenging the validity
of the serving of both the summons to appear before the investigating
judge and the sentence, applied to the Rome Court for an extension of
the time-limit in order to lodge an appeal against the first instance
judgment. His application was rejected on 19 December 1991, on the
grounds that the serving of the sentence by default was valid, the
negligence of the applicant's partner being irrelevant, and that a late
appeal was therefore inadmissible.
The applicant's subsequent appeal was rejected by the Rome Court
of Appeal on 7 May 1992, on the grounds that the serving of the
sentence was valid and that the applicant had in any event failed to
give evidence of the date on which he had had knowledge of his
conviction in absentia and, as a consequence, of his compliance with
the ten days' time-limit to apply for the extension (see below).
The applicant's appeal on points of law was rejected by the Court
of Cassation by judgment of 21 April 1993, filed with the Registry on
22 September 1993.
(b) Relevant domestic law
A. Notification to an accused who is untraceable ("irreperibile")
Article 170 of the former Italian Code of Criminal Procedure:
"Se non é possibile eseguire le notificazioni ( ... ) l'ufficiale
giudiziario ne fa relazione al giudice ( ...) o al pubblico
ministero ( ... ).
(Questi) dopo aver disposto nuove ricerche ( ... ) emette decreto
con il quale, nominato un difensore all'imputato (...), ordina
che le notificazioni ( ... ) siano eseguite mediante deposito
nella cancelleria ( ... ). Di ogni deposito deve essere dato
avviso senza ritardo al difensore."
(translation)
"When it is not possible to carry out a notification, the bailiff
informs the judge or the public prosecutor (who ordered the
notification).
After directing that further searches be conducted, the judge or
the public prosecutor shall take a decision appointing a defence
lawyer to act for the accused, and ordering that notifications
be effected by means of lodging the relevant documents with the
registry. The defence lawyer shall be informed without delay when
any such document is so lodged."
B. Extension of the time-limit
Article 175 para. 2 and 3 of the new Italian Code of Criminal
Procedure:
"Se é stata pronunciata sentenza contumaciale ( ... ) puo' essere
chiesta la restituzione nel termine per proporre impugnazione
( ... ) dall'imputato che provi di non avere avuto effettiva
conoscenza del provvedimento, sempre che ( ... ) il fatto non sia
dovuto a sua colpa.
La richiesta per la restituzione nel termine é presentata, a pena
di decadenza, entro dieci giorni da quello ( ... ) in cui
l'imputato ha avuto effettiva conoscenza dell'atto ( ... )."
(translation)
"When a judgment has been rendered by default, the accused can
apply for an extension of the time-limit to lodge an appeal
against it, if he can give evidence that he did not have
knowledge thereof through no fault of his own.
The request for the extension of the time-limit must be filed
within ten days of the date of the actual knowledge of the
judgment by the accused."
COMPLAINT
The applicant complains under Article 6 para. 1 of the Convention
that he was convicted in absentia without the benefit of a fair and
public hearing and without the opportunity to defend himself. He
challenges the validity of the notifications of the summons and of the
sentence by default.
THE LAW
The applicant complains that he did not have a fair trial, in
that he was convicted in absentia without having the possibility of
defending himself. He alleges that neither the serving of the summons
nor the conviction in absentia was valid.
He invokes Article 6 (Art. 6) of the Convention, which, as far
as relevant, reads:
"In the determination of ( ... ) any criminal charge against him,
everyone is entitled to a fair and public hearing".
However, the Commission is not required to decide whether or not
this complaint discloses any appearance of a violation of the
Convention, as the application is inadmissible for the following
reasons.
The Commission recalls that, pursuant to Article 26 (Art. 26) of
the Convention, it can only deal with a matter after all domestic
remedies have been exhausted and within a period of six months from the
date in which the final decision was taken.
In the present case, the Commission observes that, even assuming
that the summons to appear before the investigating judge and the
judgment by default were not duly served on the applicant, it appears
from the file that he became aware of his conviction and sentence in
absentia at the latest when he applied to the Court of Appeal for
review of the judgment, namely on 12 October 1990.
The Commission recalls that the person who is unaware, at the
time when it was committed, of an act which causes him a prejudice, is
not absolved from exercising available remedies as soon as he becomes
aware of this act (cf. No. 8334/78, dec. 7.5.81, D.R. 24 pp. 103 ss.).
It notes that in October 1990, after he had become aware of his
conviction in absentia, the applicant applied to the Court of Appeal
for a review of the judgment, which was declared inadmissible, rather
than applying for an extension of the time-limit to lodge a late
appeal, a faculty which was available to him under Italian law.
It follows that the applicant failed to avail himself of the
remedy at his disposal under domestic law.
The Commission furthermore considers that in the present case
there are no special circumstances that could absolve the applicant
from exhausting the above remedy.
It follows that the applicant has not met the requirements of
Article 26 (Art. 26) of the Convention as to the exhaustion of domestic
remedies (cf. No. 9022/80, dec. 13.7.83, D.R. 33 p. 21; No. 10363/83,
dec. 1.7.85, D.R. 43 pp. 171, 173) and that the application must be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy