AS TO THE ADMISSIBILITY OF
Application No. 24238/94
by Gianfranco PIAZZI
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 18 December 1993
by Gianfranco PIAZZI against Italy and registered on 31 May 1994 under
file No. 24238/94;
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
The applicant is an Italian national, born in 1953 in Ferrara,
artisan by profession. He is currently detained in Bologna.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 4 February 1989 the Venice Investigating Judge issued a
warrant of arrest against the applicant and seventeen coaccused, on
charges of:
- importing significant quantities of cocaine (five and
eight kilograms) from Colombia to Ferrara on several occasions
between 1984 and 1986,
- selling significant quantities of cocaine to D.Z. in Ferrara on
several occasions between 1984 and 1986,
- importing three kilograms of cocaine from Columbia on 24 May 1986
through F.G. (the latter had already been finally convicted of
this charge by the Milan Court),
- belonging to a criminal association of more than three people
with a view to trafficking cocaine from Colombia, and
- belonging to a criminal association of more than ten people with
a view to trafficking cocaine from abroad, in Ferrara, Venezia,
Rome and Milan between 1983 and 1988 (the applicant and
six coaccused being the heads of the association and the
financiers).
The warrant of arrest included three pages of grounds for the
arrest; reference was made to Articles 71, 74 section 1 no. 2,
74 section 2, and 75 of Law of 22 December 1975 no. 685, articles 81
and 110 of the criminal code.
On 9 February 1989, the applicant was arrested by the police and
was notified of the warrant of arrest.
In February 1989, the Bologna Public Prosecutor's Office arrested
F.F., who accused certain alleged accomplices of his, including the
applicant.
The applicant filed with the Ferrara Investigating Judge a
request to be released on the ground that the evidence against him was
not sufficient ("per insufficienza di indizi").
On 24 August 1989 the Investigating Judge dismissed the
applicant's request. Following the applicant's appeal against this
decision, in a decision of 12 October 1989 the Ferrara Court
("Tribunale della libertà") considered that, with the exception of
charge (5), there was not enough evidence against the applicant, who
was thus released from prison the same day.
In January 1990 the Bologna police proceeded to the arrest of
several coaccused including the applicant.
In February 1990 the two preliminary investigations pending in
Ferrara and in Bologna were joined before the Bologna Public
Prosecutor's Office.
On 1 October 1990 the applicant was committed for trial before
the Bologna Court together with 107 coaccused, on the charges of:
(1) illegally buying and keeping fifty grams of cocaine in Anzola and
Ferrara in winter 1986;
(2) importing significant quantities of cocaine (five and eight
kilograms) from Colombia to Ferrara and other unidentified places
on several occasions between 1984 and 1986, and acting in a group
of more than three people, thus belonging to a criminal
association;
(3) selling quantities of cocaine to D.Z. in Ferrara on several
occasions between 1984 and 1986;
(4) importing three kilograms of cocaine from Columbia to Milan
Linate airport in Italy on 24 May 1986 through F.G. (the latter
having already been finally convicted of this charge by the Milan
Court), acting in a group of more than three people, thus
belonging to a criminal association;
(5) buying, keeping, transporting and importing significant
quantities of cocaine to Italy from Columbia, acting in a group
of more than three people together with other unidentified
persons all belonging to a criminal association, in Ferrara and
other unidentified places between 1986 and 1988; and
(6) belonging to a criminal association of more than ten people with
a view to trafficking cocaine from abroad, in Ferrara, Venezia,
Rome, Milan, Savona and other unidentified places between 1983
and 1988 (the applicant and six coaccused being the heads of the
association and the financiers).
Reference was made to Articles 71, 74 section 1 no. 2,
74 section 2, and 75 of Law of 22 December 1975 no. 685, articles 81
and 110 of the criminal code.
The applicant was interrogated at the hearing of 21 March 1991.
By a judgment of 17 June 1991 the Bologna Court found the
applicant guilty of charge (2) - charges (4), (5) and (6) being
included in this charge - and acquitted him of charges (1) and (3); it
sentenced him to eleven years' imprisonment and to a fine. Twenty-four
pages of the judgment described the evidence against the applicant, the
assessment of such evidence by the Court and the grounds for the
applicant's conviction. The evidence against the applicant was mainly
formed by statements made by F.F., numerous statements made by
eight coaccused - in particular O.M. and P.T. - and witnesses,
documents concerning the arrest of F.G., documents supplied by the
German police and concerning a coaccused arrested in Germany, and a
diary seized from the applicant's cohabiting partner.
On 29 November 1991 the applicant lodged an appeal against this
judgment before the Bologna Court of Appeal. He claimed that the
judgment was a nullity as it had been issued by an incompetent judge,
that he had not been notified of the warrant of arrest and that the
judicial authorities of Bologna were not territorially competent. As
to the substance, he challenged the credibility of G.F. and of his
coaccused O.M., pointing out certain of G.F.'s contradictions and the
lack of corroboration. He finally requested a reduction in the
sentence. The applicant later filed further grounds for the appeal,
mainly challenging the assessment of evidence by the lower courts.
By a judgment of 10 June 1992, the Bologna Court of Appeal
dismissed the applicant's allegations concerning the nullity of the
procedure; it reexamined F.F.'s statements and came to the conclusion
that they were corroborated by the statements of the applicant's
coaccused O.M. and by several other statements of other coaccused, in
particular P.T., and by the diary seized from the applicant's
cohabiting partner. It subsequently confirmed the applicant's
conviction but reduced the sentence to 10 years and four months'
imprisonment.
On 6 February 1993 the applicant lodged an appeal on points of
law against this judgment, reiterating that the procedure was null and
void, and that there was no corroboration to F.F.'s and O.M.'s
statements, and that P.T.'s statements were not reliable.
By judgment of 20 May 1993, filed in the Registry on 23 August
1993, the applicant's appeal on points of law was dismissed by the
Court of Cassation.
COMPLAINTS
1. The applicant complains of his conviction and sentence and claims
that he has been denied a fair trial and in particular that the judges
incorrectly assessed the evidence before them as they trusted the
statements of certain of his former accomplices who were not reliable.
He further maintains that he was convicted of importing cocaine
to Frankfurt together with four people on account of charge (5),
whereas this charge was clearly different from the facts of which he
was convicted and that the charge of belonging to a criminal
association (charge 6) was too vague to allow him to defend himself:
he therefore maintains that he was not informed in detail of the
accusations brought against him.
He alleges a violation of Article 6 paras. 1 and 3 (a) of the
Convention in these respects.
2. The applicant complains of the length of the criminal proceedings
brought against him, during which he was kept in detention. He invokes
Article 5 para. 3 of the Convention.
THE LAW
1. The applicant complains in the first place of his conviction and
sentence.
The Commission first recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers to its established case-law (cf.,
e.g., No. 13926/88, Dec. 4.10.90, D.R. 66 pp. 209, 225; No. 21283/93,
Dec. 5.4.94, D.R. 77-A pp. 81, 82 and 88).
It is true that in the present case the applicant complains also
that he was denied a fair hearing and in particular that the judges
incorrectly assessed the evidence before them, that he was convicted
of a charge which was different from the one of which he had been
informed and that the charge of belonging to a criminal association was
too vague to allow him to defend himself.
Article 6 (Art. 6), in so far as relevant, reads:
"1. In the determination (...) of any criminal charge against
him, everyone is entitled to a fair (...) hearing within a
reasonable time by a (...) tribunal (...).
3. Everyone charged with a criminal offence has the following
minimum rights: (...)
(a) to be informed promptly, in a language which he understands
and in detail, of the nature and cause of the accusation against
him; (...)
Even assuming that the applicant, in accordance with Article 26
(Art. 26) of the Convention, has complied with the condition as to the
exhaustion of domestic remedies, namely that he had raised his
complaints either in form or in substance before the Court of Appeal
and the Court of Cassation, the Commission considers that this part of
the application is inadmissible for the following reasons.
The Commission recalls that the requirements of paragraph 3 of
Article 6 (Art. 6-3) represent particular aspects of the right to a
fair trial guaranteed in paragraph 1. It will therefore examine the
complaints from the point of view of these two provisions taken
together (see Eur. Court H. R., Lüdi v. Switzerland judgment of 15 June
1992, Series A, no. 238, p. 23, para. 43).
a) The applicant submits that charge (5) did not correspond to the
charge of which he was convicted and that charge (6) was vague and
inaccurate. He thus maintains that he was not informed in detail about
the accusations brought against him.
The Commission and the Court have stressed that Article 6
para. 3 (a) (Art. 6-3-a) of the Convention is of fundamental importance
in preparing the defence and that its scope must be understood in
relation to Article 6 para. 3 (b) (Art. 6-3-b) , which guarantees to
everyone the right to have adequate time and facilities for the
preparation of his defence and in the light of the more general right
to a fair trial secured by Article 6 para. 1 (Art. 6-1) of the
Convention (cf. Gea Catalan v. Spain, Comm. Report 30.11.93, para. 28,
to be published in Eur Court H.R., Series A no. 309).
The Commission recalls that pursuant to Article 6 para. 3 (a)
(Art. 6-3-a) of the Convention, the accused is entitled to be informed
of the cause of the accusation, i.e. the material facts alleged against
him which are at the basis of the accusation, and of the nature of the
accusation, i.e. the legal qualification of these material facts. The
"detailed" information referred to in this provision should contain the
material enabling the accused to prepare his defence, without however
necessarily mentioning the evidence on which the charges are based
(No. 7628/76, Dec. 9.5.77, D.R. 9 p. 173).
In the present case, the Commission observes in the first place
that the two charges contained in the applicant's warrant of arrest and
subsequently in the applicant's committal for trial [charges (5)
and (6)], and about which the applicant complains, described - although
at times not in detail: "other unidentified places" and "together with
other unidentified persons" - the relevant periods of time and the
places where they had supposedly taken place as well as the alleged
accomplices. Reference was made to Articles 71, 74 section 1 no. 2,
74 section 2, and 75 of Law of 22 December 1975 no. 685, articles 81
and 110 of the criminal code, and the legal qualification of the facts
was clearly indicated. The Commission further observes that in the
course of the proceedings further elements were added to the
accusation; these elements were brought to the applicant's knowledge
and he had the opportunity of disputing them and defending himself from
the accusation as it developed.
In any event, the Commission notes that the applicant was
convicted of charge (2) only, the two charges at issue having been
considered as "included" in charge (2); the Commission therefore
considers that the applicant cannot claim to be a victim of a violation
of the Convention in this respect.
b) The applicant further submits that the assessment of evidence
made by the various judges was arbitrary and erroneous, and in
particular that the former accomplices of his who accused him were not
reliable.
The Commission recalls that the question of the admissibility of
evidence and of its probative value is primarily governed by the rules
of domestic law, and as a general rule it is for the national courts
and in particular the courts of first instance, to assess the evidence
before them, as well as the evidence which the accused seeks to adduce
(see Eur. Court H. R., Edwards v. United Kingdom judgment of
16 December 1992, Series A no. 247-B, pp. 34-35, para. 34; Windisch v.
Austria judgment of 27 September 1990, Series A no. 186, p. 10,
para. 25).
The Commission's task in the present case is therefore not to
express a view as to whether the evidence against the applicant was
correctly admitted and assessed by the judges, but rather to ascertain
whether the proceedings considered as a whole, including the way in
which evidence was taken, were fair (see, Eur. Court H.R.,
Saïdi v. France judgment of 20 September 1993, Series A no. 261-C,
p. 56, para. 43).
The Commission points out that the use at the trial of evidence
obtained from an accomplice by granting him a reduction of sentence may
put in question the fairness of the hearing granted to an accused
person, and thus raise an issue under Article 6 para. 1
(Art. 6-1) of the Convention (No. 7306/75, Dec. 6.10.76, D.R. 7, p.
115).
However, the Commission notes that in the present case the
applicant had the opportunity, through his lawyer, to challenge his
former accomplices' statements, thus providing the judges with all
information which was capable of casting doubt on their credibility.
Moreover the Italian courts had examined the evidence before them
thoroughly, and had come to the conclusion that the statements made by
F.F., O.M. and P.T. were convincing and corroborated by other evidence,
namely by numerous statements of the applicant's other accomplices, but
also by certain documents gathered during the preliminary
investigations.
The Court of Cassation analysed thoroughly and in detail all of
the applicant's complaints, addressing the issue of the assessment of
evidence by the lower courts and concluding that the latter had not
overstepped the limits of appreciation of evidence or established facts
in an arbitrary manner.
The Commission does not find these conclusions arbitrary or
otherwise unfair.
In conclusion, the Commission considers that the proceedings as
a whole do not disclose that the applicant was deprived of a fair
hearing within the meaning of Article 6 (Art. 6) of the Convention, in
respect of the administration of evidence or in any other aspect.
It follows that the application in this respect is manifestly
ill-founded and must be rejected in pursuance of Article 27 para. 2
(Art. 27-2) of the Convention.
c) The applicant also alleges that the proceedings were unreasonably
long.
The Commission considers that this complaint falls to be examined
under Article 6 para. 1 (Art. 6-1) of the Convention.
The period to take into consideration began on 9 February 1989
when the applicant was arrested (see Eur. Court HR, Wemhoff v. Germany
judgment of 27 June 1968, Series A no. 7, p. 26, para. 9) and ended on
23 August 1993, when the final judgment was deposited in the Registry.
The overall length is therefore four years, six months and
fourteen days.
The Commission recalls that:
"The reasonableness of the length of the proceedings is to be
assessed in the light of the particular circumstances of the
case, regard being had to the criteria laid down in the Court's
case-law, in particular the complexity of the case, the
applicant's conduct and that of the competent authorities (...)"
(Eur. Court H.R., Kemmache v. France judgment of 27 November
1991, Series A no. 218, p. 27, para. 60).
The Commission considers that the proceedings at issue were
undoubtedly complex, regard being had in particular to the number of
coaccused and the number and nature of the charges and, insofar as the
appeal proceedings are concerned, the number and nature of the grounds
for appeal.
The Commission considers that the proceedings in question, having
lasted four years, six months and fourteen days, having regard to the
complexity of the case and also to the fact that there were three
degrees of jurisdiction, are not sufficiently long to conclude that the
"reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the
Convention has been exceeded in the present case (see No. 22717/93,
Dec. 28.6.95, unpublished).
It follows that this part of the application is also manifestly
ill-founded and must be rejected in pursuance of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant finally complains under Article 5 para. 3
(Art. 5-3) of the Convention that he was detained throughout the period
of the proceedings brought against him.
Article 5 (Art. 5) of the Convention, in so far as relevant,
provides as follows:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person following conviction by a
competent court;
(...)
c. the lawful arrest or detention of a person, effected for
the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when
it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so.
(...)
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1.c of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned to guarantees to appear for trial."
(a) In so far as the applicant's detention prior to his conviction
and sentence by the Bologna Court judgment of 10 June 1991 is
concerned, the Commission is not required to decide whether or not this
part of the complaint discloses any appearance of a violation of the
Convention, as it 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 within a period of
six months from the date in which the final decision was taken.
It notes that the applicant's detention on remand ended on
10 June 1991 with his conviction by the Bologna Court, which is more
than six months before the date when the present application was filed
with the Commission.
It follows that this part of the complaint has been lodged out
of time and must be rejected pursuant to Article 27 para. 3
(Art. 27-3) of the Convention.
(b) In so far as the applicant's detention after 10 June 1991 is
concerned, the Commission recalls that Article 5 para. 3 (Art. 5-3) of
the Convention relates exclusively to the detention referred to in the
first paragraph under (c), i.e. detention on remand.
It further observes that by judgment of the Bologna Court on this
date, the applicant was convicted of drug trafficking and sentenced to
11 years of imprisonment; therefore, after this date even if the
applicant continued to be considered as a remand prisoner under
domestic law, for the purposes of Article 5 para. 3 (Art. 5-3) of the
Convention his detention comes under Article 5 para. 1 (a)
(Art. 5-1-a), which authorises the lawful detention of a person after
conviction by a competent court (cf. Eur Court H.R., Wemhoff v. Germany
judgment of 27 June 1968, Series A no. 7, p. 23, para. 9; No. 20253/92,
G.P. v. Italy, Dec. 6.4.95, unpublished).
It follows that the remainder of the complaint is manifestly ill-
founded and must be rejected pursuant to Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy