EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23969/94

M.M.

against

Italy

REPORT OF THE COMMISSION

(adopted on 17 September 1998)

23969/94 - i -

TABLE OF CONTENTS

I. INTRODUCTION

(paras. 1 - 17)              1

A. The application

(paras. 2 - 4) 1

B. The proceedings

(paras. 5 - 12)              1

C. The present Report

(paras. 13 - 17) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 18 - 47) 3

III. OPINION OF THE COMMISSION

(paras. 48 - 81) 7

A. Complaints declared admissible

(para. 48) 7

B. Points at issue

(para. 49) 7

C. As regards Article 6 para. 1 of the Convention

in relation to the length of the proceedings

(paras. 50 - 60) 7

CONCLUSION

(para. 61) 8

D. As regards Article 6 paras. 1 and 3 of the Convention

in relation to the fairness of the proceedings

(paras. 62 - 78) 8

CONCLUSION

(para. 79) 11

E. Recapitulation

(paras. 80 - 81) 12

PARTLY DISSENTING OPINION OF MM. M. PELLONPÄÄ, E. BUSUTTIL,

A. WEITZEL, B. MARXER, I.C. BARRETO, P. LORENZEN

AND E. ALKEMA 13

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              15

APPENDIX II: FINAL DECISION OF THE COMMISSION AS TO THE                                                              ADMISSIBILITY OF THE APPLICATION                                        21

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is an Italian citizen, born in 1964 and resident in Giulianello ( Latina ).

3. The application is directed against Italy. The respondent Government were represented by Mr Umberto Leanza , Head of the Diplomatic Legal Service, Ministry of Foreign Affairs.

4. The case concerns the length and fairness of the criminal proceedings brought against the applicant. The applicant invokes Article 6 paras. 1 and 3 of the Convention.

B. The proceedings

5. The application was introduced on 22 May 1993 and registered on 25 April 1994.

6. On 12 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 paras. 1 and 3 of the Convention. It declared the remainder of the application inadmissible.

7. The Government's observations were submitted on 27 June 1996.  The applicant replied on 27 December 1996.

8. On 2 July 1996 the Commission granted the applicant legal aid for the representation of his case. On 21 January 1997, however, given that on the one hand the appointed lawyer had failed to submit observations on behalf of the applicant and that on the other hand the latter had himself presented his observations, the offer for legal aid was withdrawn. 

9. On 21 May 1997 the Commission declared the remainder of the application admissible.

10. The text of the Commission's decision on admissibility was sent to the parties on 3 June 1997 and they were invited to submit such further information or observations on the merits as they wished.  None of the parties did so.

11. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

12. On 15 April 1998 the case was transferred from the First Chamber to the Plenary.

C. The present Report

13. The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

14. The text of this Report was adopted on 17 September 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

15. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

16. The Commission's decisions on the admissibility of the application are annexed hereto.

17. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

18. In 1985, the applicant was assigned by his employer to work as a bus driver for a school for handicapped children in Rome; his job consisted in picking the children up from home in the morning to take them to school, and in driving them home in the afternoon. He was always accompanied by a social assistant.

19. On 22 November 1985, the mother of R., a mentally handicapped girl born in 1964 who attended the aforementioned school, requested the help of a social assistant, C.T., as she suspected that R. had been raped or sodomised at school by a person named "Massimo". R. had refused to go back to school as from 11 November.

20. On 25 November 1985, following C.T.'s advice she took R. to the hospital to undergo a medical examination; the doctor found no recent or earlier trace of rape or sodomy.

21. The mother also requested that the principal of the said school ask an employee called "Massimo" to provide some explanations, but the principal refused.

22. On that same day, the mother filed a criminal complaint against "a person named Massimo"; she reported to the Rome police that about twenty days earlier she had noticed that her daughter seemed to be in pain and kept going to the toilet; R. had explained this by saying to her: "It is Massimo's fault" ("é stato Massimo"). Some days later, the woman had learned from a friend of hers, C.D., that one day R. had told the latter that a certain Massimo had forced her to have sodomising intercourse in the school bathroom.

23. The police interrogated R. in her mother's presence; the girl said that about one month earlier, while she was in the school bathroom on the second floor, "Massimo" had told her to lie down on a small bed and had had sexual intercourse with her.

24. The police then interrogated C.D., who declared that about one month earlier she had been in the mother's apartment and had noticed that R. was very quiet; after certain hesitations, R. had confessed to her, in the presence of her sister A. and of another friend, M.P. , that "Massimo" had committed indecent acts on her, causing her pain, and had threatened her.

25. The police then interrogated the director of the company in charge of organising the school bus service to and from the school. He indicated the applicant as the relevant driver.

26. On 14 December 1985, the police filed a criminal complaint against the applicant with the Rome Public Prosecutor. Preliminary investigations were started.

27. On 29 January 1986, the Public Prosecutor called R. and her mother, as well as C.D. and C.T., to appear before her on 13 February 1986 in order to be interrogated as witnesses. The applicant's mother stated that she had reported the rape to the authorities about fifteen days after it had been committed because her daughter had spoken to a friend of hers and not to her directly, and because her father had died during that period. She said however that she had noted that her daughter was in pain and had given her some treatment against the pain. She stated that her daughter had refused to return to school after the rape and that she had not sent her to school any more. She added however that for about one week after the rape had been committed, her daughter "would come back, be silent and refused to eat, and would go immediately to bed". She said that she had not seen "Massimo" after that day because he had asked to be replaced by another driver as of the day after the rape. She added that she herself had seen that there is a bed in the school bathroom on the second floor.

28. On 17 February 1986, the applicant received the official notification (" comunicazione giudiziaria ") of the allegation that he had committed the "offence provided for in Article 519 of the criminal code, in that he forced R. who is mentally handicapped to have sexual intercourse with him. In Rome, in November 1985". On 19 February 1986, the applicant appointed his defence lawyer.

29. On 11 April 1986, the Public Prosecutor called the principal of the school to appear before her on 29 April 1986, in order to be interrogated as a witness. The principal acknowledged that the mother of the victim had reported the rape to her, but argued that she did not believe this to be plausible, because there are no beds in the bathrooms and because all children are accompanied when they go either to the toilet or to the therapy rooms on the third floor (where in fact there are beds). She added that the applicant did not normally enter the school and would have had no reason for being on the third floor, and that he had been assigned to a new job as from January 1986.

30. On 30 September 1986, the applicant was interrogated by the Latina Public Prosecutor in his counsel's presence. He claimed that he was innocent. He underlined that there had always been at least twenty people on the bus, and that he had always met R. in the presence of the social assistant.

31. On 23 October 1986  the applicant was committed for trial before the Rome Court; he was accused of "the offence provided for in Article 519 of the criminal code, in that he forced R. who is mentally handicapped to have sexual intercourse with him. In Rome, in November 1985" (" del reato di cui all'articolo 519 c.p . per aver costretto R. malata di mente a congiungersi carnalmente con lui . In Roma , nel novembre 1985").

32. At the applicant's request on 25 November 1989, the Rome Court fixed the first hearing in the case at 19 May 1990. At this hearing the applicant claimed to be innocent, and reiterated that he had never been alone with R. because on the bus there had always been some twenty people, including the social assistant. He argued that he did not normally enter the school.

33. R. could not be interrogated, as she appeared to be very agitated; her mother was interrogated instead. She declared that she could not know the exact date of the events, and specified that she had not reported the rape immediately because her father had died just in that period. She alleged that the rape had taken place on the third floor, in the therapy room.

34. C.T. was also interrogated; she declared that R.'s mother had contacted her on 22 November 1985 and had told her that the rape had been committed the day before.

35. C.D. was interrogated next; she repeated what she had told the police, and specified that she recalled that the rape had presumably been committed on 21 November 1985.

36. Finally, R. was interrogated with the help of the social assistant. R. said that she had gone to the bathroom to wash her hands, and on her way back to her classroom she had been caught by the applicant who had pushed her into a room and had raped her.

37. The case was then adjourned to 12 June 1990, in order to hear the evidence of two of the school caretakers. They declared that all children are accompanied to both bathrooms and therapy rooms, and that bus drivers are not allowed to enter the school.

38. By a judgment delivered on the same day, the Rome Court convicted the applicant of rape and sentenced him to three years' imprisonment. The court underlined that, although R. was mentally handicapped and therefore seemed not to be fully aware of her own declarations, she had been precise and detailed enough to be credible. The court held that the apparent contradictions concerning the time and the place of the rape could be easily justified by the peculiar circumstances of the case, and that in any event the witnesses against the applicant were all fully credible, whereas those who gave evidence on his behalf appeared to have an interest in protecting the school's reputation.

39. The court found that it had been possible for the applicant to enter the school, and that it was plausible that he had in fact committed the crime; the court added that it was superfluous to know the exact place of the rape - namely the exact floor where it had been committed - once it had been established that (a) it had been committed inside the building and (b) the applicant could enter the building.

40. As for the time of the rape, the court held that the rape had been committed on the day when R. had spoken to C.D., namely a couple of weeks before 25 November 1985 and immediately before 11 November 1985, the date when R. had ceased to go to school, presumably as a consequence of the rape itself.

41. The judgment was filed with the Registry on 27 June 1990.

42. On 30 July 1990, the applicant appealed to the Rome Court of Appeal. He argued that the charge brought against him was too vague to allow him to defend himself, there being no exact indication of the place and time of the rape, and these elements not having emerged during the trial. He therefore claimed that the proceedings were null and void, on the ground of a violation of his defence rights. He also requested, if the appellate court so agreed, that the evidence of a witness on his behalf, namely his employer at the time of the rape, be heard to obtain further details about his duties as the school bus driver.

43. By judgment of 30 April 1991, filed with the Registry on 20 May 1991, the Court of Appeal confirmed the first instance judgment. After reexamining the evidence gathered during the first instance trial and considering it unnecessary to examine the applicant's employer, the court came to the conclusion that the applicant was guilty. As to the alleged vagueness of the accusation, the court considered that the impossibility of specifying the exact place and time of the rape did not render the accusation itself null and void, as the elements (November 1985 - inside the school) contained in the accusation were sufficient to allow an adequate defence.

44. The applicant was notified of the deposit of the text of the judgment on 23 June 1992.

45. On 13 July 1992, the applicant filed an appeal on points of law; he reiterated in particular that the charge was too vague to allow him to defend himself, and claimed that the Court of Appeal had not given any grounds for refusing to examine another witness on his behalf.

46. By judgment of 17 June 1993, filed with the Registry on 19 July 1993, the Court of Cassation rejected the applicant's appeal as being manifestly ill-founded, besides having been lodged by a lawyer who had not been admitted to plead before the Court of Cassation . The Court of Cassation held in particular that the charge brought against the applicant was not vague, as it contained all the details that were necessary for the applicant to defend himself. It considered that the lack of an indication of the specific time and place of the rape was a consequence of the original inaccuracy of the charge (" originaria imprecisione dell'accusa ") due to the mental handicap of R.; the court found however that such original inaccuracy had been remedied in the course of the trial through further corroboration, namely the statements of the three main witnesses against the applicant.

47. As to the refusal to hear the evidence of a witness on appeal, the court found that the Court of Appeal had given reasons therefor, namely that the evidence already gathered before the Rome Court was sufficient. 

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

48. The Commission has declared admissible:

- the applicant's complaint that the length of the proceedings was excessive;

- the applicant's complaint that he did not benefit from a fair trial, in that, in particular, he was not informed in detail of the accusation brought against him, and in that the judges incorrectly assessed the evidence against him and refused to hear a witness on his behalf.

B. Points at issue

49. The Commission is required to state an opinion on the following questions:

- whether the length of the criminal proceedings brought against the applicant violated the "reasonable time" requirement laid down in Article 6 para. 1 of the Convention; and

- whether the proceedings were fair within the meaning of Article 6 para. 1 of the Convention, in particular whether the applicant was informed in detail of the accusation brought against him as required by para. 3 (a) of Article 6, whether the judges correctly assessed the evidence before them and whether the refusal to hear a witness on the applicant's behalf impaired the latter's rights under para. 3 (d) of Article 6 of the Convention.

C. As regards Article 6 para. 1 of the Convention in relation to the length of the proceedings

50. The applicant complains in the first place about the length of the proceedings. Article 6 para. 1 provides inter alia that:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by (a) ... tribunal ..."

51. The relevant proceedings commenced on 17 February 1986, when the applicant received the official notification (" comunicazione giudiziaria ") of the allegation that he had committed the offence of rape (see Eur. Court HR, Deweer v. Belgium of 27 February 1980, Series A No. 35, p. 24, para. 46), and ended on 19 July 1993, when the Court of Cassation's judgment was filed with the registry. The overall length is thus approximately seven years and five months.

52. The Government maintain that the length of the proceedings can be justified in the light of the delicate nature of the issues involved. In connection with the delay between the applicant's committal for trial and the first hearing, the Government plead the excessive workload of the Rome Court, which gave priority to cases in which the accused were being kept in detention on remand, and the organisational difficulties encountered by the Rome Court consequent on the entry into force of the new code of criminal procedure. The applicant disputes these arguments.

53. The Commission recalls that the reasonableness of the length of the proceedings is to be assessed in the light of the following criteria: the complexity of the case, the applicant's conduct and that of the competent authorities (see, amongst other authorities, Eur. Court HR, Philis v. Greece (No. 2) judgment of 27 June 1997, Reports of Judgments and Decisions for 1997, para. 35).

54. The Commission notes at the outset that the proceedings in question were not particularly complex, despite the accuser's mental handicap.

55. It notes that the applicant was not in any way responsible for the length of the proceedings. On the contrary, on one occasion (on 25 November 1989) he succeeded in expediting the proceedings by urging the Rome Court to schedule the first hearing in the case.

56. The Commission observes that certain delays occurred in the proceedings which were attributable to the State; the most significant one occurred between the applicant's committal for trial on 23 October 1986 and the first hearing in the case on 19 May 1990 (approximately three years and seven months). Over a year, then, elapsed between the filing of the judgment of the Rome Court of Appeal with the Registry  on 20 May 1991 and its notification to the applicant on 23 June 1992.

57. The Commission points out, in connection with the Government's explanation of the first delay partly by reference to the entry into force of the new code of criminal procedure, that the latter event dates back to 24 October 1989, i.e. three years after the applicant's committal for trial.

58. At any rate, in connection with the reference made by the Government to the excessive workload of the Rome Court and its understandable concern to give priority to cases in which the accused were in detention, the Commission reiterates that the Contracting States are under a duty to organise their legal systems so as to enable the courts to guarantee to everyone the right to a definitive determination of any criminal charge against him within a reasonable time (see Eur. Court HR, Baggetta v. Italy judgment of 25 June 1987, Series A p. 119, pp. 32-33, para. 23).

59. The Commission considers therefore that, despite a certain complexity of the case, the delays in the proceedings have not been convincingly explained by the Government.

60. Accordingly, in the light of the criteria established by case-law and having regard to the circumstances of the case, the Commission considers that the length of the proceedings at issue was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

61. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings.

D. As regards Article 6 paras. 1 and 3 of the Convention in relation to the fairness of the proceedings

62. The applicant further claims that the information he was given in the bill of indictment was insufficient for him to defend himself adequately. Furthermore he underlines that his request to hear a witness on his behalf in appeal was rejected. The judges, in the applicant's opinion, have wrongly assessed the evidence before them.

63. Article 6 of the Convention, in relevant part, provides as follows:

"1. In the determination of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly ... and in detail of the nature and cause of the accusation against him; ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

64. The Commission recalls in the first place that the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1. The Commission will therefore examine the applicant's complaints from the point of view of these two provisions taken together (see Eur. Court HR, Foucher v. France judgment of 18 March 1997, Reports of Judgments and Decisions 1997, para. 30; Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 23, para. 43).

65. As regards the information on the accusation, the Commission and the Court have stressed that Article 6 para. 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), 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 of the Convention (cf. Gea Catalán v. Spain, Eur. Court HR, Series A no. 309, Opinion of the Commission, p. 13, para. 28).

66. Pursuant to Article 6 para. 3 (a) of the Convention, the accused is entitled to be "promptly" informed and "in detail" 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 (see No. 7628/76, dec. 9.5.77, D.R. 9 p. 173).

67. The Commission further 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 HR, Edwards v. the 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). As regards the refusal to hear a witness, the Commission recalls that it is normally for the national courts to decide whether it is necessary or advisable to call a witness (see Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). The Commission's task 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 the evidence was taken, were fair (see Eur. Court HR, Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).

68.  The applicant claims that the information contained in the bill of indictment was too vague to allow an adequate defence.  He further claims that the judges did not truly try and establish the circumstances of the case, particularly in the course of the appeal proceedings, as they were influenced and touched by the fact that the victim was a handicapped girl. He underlines that the judges did not seek a psychological profile of the victim.

69. The Government for their part argue that the applicant was promptly informed of the object of the accusation and enabled to defend himself fully during both the preliminary investigation and the trial; they underline that the applicant even filed further documents on his behalf during the appeal proceedings.

70. The Commission observes that the text of the indictment - of which the applicant was notified on 17 February 1986 - was as follows: "charged with the offence provided for in Article 519 of the criminal code, in that he forced R. who is mentally handicapped to have sexual intercourse with him. In Rome, in November 1985".

71. The Commission considers that the original indictment was indeed very vague, as was the general evidence surrounding the information given to the applicant in the indictment with regard to the accusations against him. At that time, the prosecuting authorities knew neither when, nor exactly where the reported rape had taken place. As to the date, the victim and the other witnesses had stated, when interrogated by the police on 25 November 1985, that the rape had been committed "about twenty days previously" or "about one month previously".

72. As to the place of the rape, the victim had mentioned "the school bathroom on the second floor". The Commission notes in this respect that, although the police and the prosecuting authorities had known since the beginning that the rape was alleged to have been committed inside the school - although it had not been and never was ascertained where exactly on the school premises - the indictment did not specify this, and merely referred to "Rome" as the place of the crime. Furthermore, although the applicant, when interrogated by the Public Prosecutor on 30 September 1986, merely stated that he had never been alone on the bus with the victim and made no reference to the possibility for him to have entered the school, the Public Prosecutor did not specify that the rape was alleged to have been committed on the school premises and not on the bus, nor did he address the question of the applicant's duties as a driver and of his presence inside the school.

73. The Commission further notes that more than three and a half years then elapsed before the trial was held, with no further activity whatsoever being carried out in respect of the case. There is nothing to indicate that the applicant was ever put on notice that, contrary to the defence which he had so far advanced, it was alleged that the rape had taken place not in the bus (where he had only seen the victm when others were present) but in the school.

74. At the trial, however, it became clear for the applicant that he was accused of having raped the girl inside the school. New details and allegations came to light and the charge was amended and adjusted to the new elements which emerged during the proceedings. It was stated that the rape had been committed "on the third floor, in the therapy room", and "in a room on the way back from the bathroom". The date became "presumably" 21 November 1985.

75. It is true that the applicant was informed of these new details or allegations as they came to light in the course of the trial. The Commission notes however that the trial lasted less than one month; only two hearings were held, and the judgment was delivered at the end of the second hearing. The applicant was interrogated only once, in the course of the first hearing. Only two of the school caretakers were interrogated as witnesses on the applicant's behalf; the court however, in a judgment delivered on the very same day of these witnesses' interrogation, disregarded their testimony on the ground that they appeared to have an interest in protecting the school's reputation. No other evidence was sought. In the judgment, the court held that the rape had been committed "a couple of weeks before 25 November 1985" and "immediately before 11 November 1985" and that it was irrelevant to know on what floor in the school, given that the applicant, even if he was a driver, had the possibility of entering the school.

76. The Commission notes that the applicant requested the court of appeal to examine his employer as a witness on his behalf. The latter could have provided more details on the applicant's duties as a driver and on his working schedule in November 1985. The court dismissed this application on the ground that it was superfluous. Though it is not its task to rule on the evidential value of such testimony, the Commission considers that it does not immediately appear to be manifestly devoid of merit.

77. The Court of Cassation then considered that the inaccuracies concerning the charge were an inevitable consequence of the victim's mental handicap and that the latter's allegations had been corroborated by the testimonies of the three main witnesses against the applicant. The Commission notes however that the three main witnesses' testimonies were even more contradictory than the victim's, and that the courts did not accept their reconstruction of the facts: for example, at the trial they stated that the rape had been committed on 21 November 1985, whereas the courts held that it had taken place, presumably, on 10 November 1985. Furthermore, the Commission notes that these witnesses only repeated what they had allegedly been told by R.

78. In these circumstances, the Commission finds that the proceedings taken as a whole did not satisfy the requirement of a fair hearing. Accordingly, there has been a violation of Article 6 paras. 1 and 3 of the Convention.

CONCLUSION

79. The Commission concludes, by twenty-five votes to seven, that in the present case there has been a violation of Article 6 paras. 1 and 3 of the Convention.

E. Recapitulation

80. The Commission concludes, unanimously, that in the present case there has been a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings (para. 61).             

81. The Commission concludes, by twenty-five votes to seven, that in the present case there has been a violation of Article 6 paras. 1 and 3 of the Convention (para. 79).

        M. de SALVIA                       S. TRECHSEL

          Secretary                         President

      to the Commission                       of the Commission

PARTLY DISSENTING OPINION OF MM. M. PELLONPÄÄ, E. BUSUTTIL,

A. WEITZEL, B. MARXER, I.C. BARRETO, P. LORENZEN AND E. ALKEMA

We regret that we are not able to join the majority in finding a violation of Article 6 paras. 1 and 3 of the Convention concerning the fairness of the hearing.

It is true that the original indictment was very vague. As rightly stressed by the majority, this must be seen in connection with the fact that also the general evidence surrounding the information given to the applicant in the indictment with regard to the accusations against him was very vague. At that time, the prosecuting authorities knew neither when, nor exactly where the reported rape had taken place.

However, it was clear from the statements R. and her mother gave to the police on 25 November 1985 that the rape had allegedly taken place inside the school premises. Being informed of the charge on 17 February 1986, the applicant appointed his defence counsel on 19 February 1986 and they could at any time have asked for access to the file - including the police reports of the interrogations of R. and her mother. Neither the applicant nor his defense counsel however did so. Counsel was thus present during the interrogation of the applicant on 30 September 1986 without having acquainted himself with the file and not even the fact that his client denied ever having been alone with R. made him ask for more detailed information on the allegations. The fact that the prosecutor's interrogation seems to have been of a rather summary character should in our opinion not be considered of particular importance. The prosecution had no reason to expect that counsel would not ask for the file until the court hearing on 25 November 1989 or possibly shortly before. The omission of the defense counsel to seek relevant available information and confront his client with it at a much earlier stage of the proceedings is in our opinion an important factor when assessing whether the applicant's rights under Article 6 paras. 1 and 3 were respected (cf. mutatis mutandis Eur. Court HR, Kamasinki v. Austria judgment of 19 December 1989, Series A no. 168, p. 33, para. 65).

In the course of the proceedings before the Rome Court the applicant had full knowledge of all the elements of the charge and had the opportunity of disputing them and defending himself from the accusation. The Italian judicial authorities acknowledged that, due to the mental handicap of R., the original indictment was inaccurate as to the place and time of the rape. They found however that such inaccuracy had been remedied at a later stage of the proceedings through further corroboration, namely through the testimony of the main witnesses against the applicant, and concluded that the applicant's defense rights had not been hindered.

We do not find this conclusion arbitrary or otherwise unfair. It is therefore our opinion - also in the light of the just mentioned special circumstances of the case - that the applicant's right to be informed of the nature and cause of the accusation against him was not violated.

As to the allegedly incorrect assessment of the evidence by the judges, we recall 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 HR, Edwards v. the 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 Court of cassation analyzed thoroughly and in detail all of the applicant's complaints, addressing the issue of the assessment of the evidence by the lower courts, and concluded that the latter had not overstepped the limits of appreciation of evidence or established facts in an arbitrary manner. We do not find these conclusions arbitrary or otherwise unfair.

As to the refusal to hear a witness on the applicant's behalf, we recall that it is normally for the national courts to decide whether it is necessary or advisable to call a witness (see Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). There are exceptional circumstances which could prompt a conclusion that the failure to hear a witness was contrary to Article 6 of the Convention. We do not think, however, that such circumstances exist. In particular, the applicant has in our opinion failed to state in what way the witness he wanted to examine would have supported his defence.

We have therefore come to the conclusion that the proceedings as a whole do not disclose that the applicant was deprived of a fair hearing within the meaning of Article 6 of the Convention, in respect of the administration of evidence or in any other aspect.