Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23969/94

by M.M.

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

Mrs J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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 22 May 1993 by

M.M. against Italy and registered on 25 April 1994 under

file No. 23969/94;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

26 June 1996 and the observations in reply submitted by the

applicant on 27 December 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1964 and currently

residing in Giulianello (Latina). He is a driver by profession.

The facts of the case, as submitted by the parties, may be

summarised as follows.

In 1985, the applicant was assigned by its 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.

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 sodomized at school by a person named "Massimo". R. had

refused to go back to school as from 11 November.

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 preceding trace of rape or sodomy.

The mother also requested that the principal of the said school,

call an employee called "Massimo" to have some explanations, but the

principal refused.

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 before 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 R. had told the

latter that one day someone called Massimo had forced her to have a

sodomizing intercourse with him in the school bathroom.

The police interrogated R. in her mother's presence; the girl

said that about one month before, while she was in the school bathroom

on the second floor, the applicant had told her to lie down on a small

bed and had had a sexual intercourse with her.

The police then interrogated C.D., who declared that about one

month before she was 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 the

applicant had committed indecent acts on her, causing her pain, and had

threatened her.

The police then interrogated the director of the company which

was in charge of organising the school bus service to and from the

school. He indicated the applicant as the relevant driver.

On 14 December 1985, the police filed a criminal complaint

against the applicant with the Rome Public Prosecutor. Preliminary

investigation were started.

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.

On 17 February 1986 the applicant received the official

notification ("comunicazione giudiziaria") of the allegation that he

had committed the offence of rape "in Rome in November 1985". On

19 February 1986, the applicant appointed his defence lawyer.

On 11 April 1986, the Public Prosecutor called the principal of

the school in question 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 had no reason for being on the third floor, and that he

had been assigned to a new job as from January 1986.

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 were always at least twenty

people on the bus, and that he had always met R. in the presence of the

social assistant.

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 a 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").

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.

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 it 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.

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.

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.

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.

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.

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 on his behalf appeared to have an

interest in protecting the reputation of the school.

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.

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, date when R. had ceased to go to school, presumably as a

consequence of the rape itself.

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

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 element 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 have further details about his duties as the school bus

driver.

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 witness, the court came to

the firm conclusion that the applicant was guilty. As to the alleged

vagueness of the accusation, the court considered that the

impossibility to indicate 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.

The applicant was notified of the deposit of the text of the

judgment on 23 June 1992.

On 13 July 1992, the applicant filed an appeal on points of law;

he insisted in particular on the charge being 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.

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 not

admitted to plead before the Court of Cassation. The Supreme Court 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 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 Supreme 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.

As to the refusal to hear the evidence of a witness in 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.

COMPLAINTS

1. The applicant first complains under Article 6 para. 1 of the

Convention of the length of the criminal proceedings brought against

him.

2. The applicant further alleges that he did not have the benefit

of a fair trial.

He alleges in particular that:

(a) his defence rights were hindered, as the accusation brought

against him was vague and inaccurate;

(b) the judges incorrectly assessed the evidence before them and were

thus not impartial;

(c) the court of appeal refused to examine a witness on his behalf.

The applicant invokes Article 6 para. 3 (d).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 May 1993 and registered on

25 April 1994.

On 12 April 1996 the Commission decided to communicate the

applicant's complaints concerning the length and fairness of the

criminal proceedings brought against the applicant to the respondent

Government and to declare the remainder of the application

inadmissible.

The Government's written observations were submitted on 27 June

1996. The applicant replied on 27 December 1996.

On 2 July 1996 the Commission granted the applicant legal aid.

THE LAW

The applicant complains under Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention about the length and fairness of the

criminal proceedings instituted against him on a charge of rape. He

alleges in particular that he was not informed in detail of the

accusation brought against him, and that the judges refused to hear a

witness on his behalf and incorrectly assessed the evidence before

them.

The Government allege at the outset that the present application

was filed on 31 March 1994, which is more than six months after the

final decision was taken in the case. The applicant did not submit any

observations on this point.

The Commission observes that the first letter setting out the

facts and the object of the present case was sent to its Secretariat

on 22 May 1993, and the application form was then completed and

returned on 31 March 1994. The Commission recalls that according to

Rule 38 para. 3 of its Rules of Procedure, "the date of introduction

of the application shall be the date of the first communication from

the applicant setting out, even summarily, the object of the

application". The Commission does not find - nor have the Government

submitted - any reason to consider the date on which the application

form was completed instead of the date of the first letter, as the date

of introduction of the present application. It follows that the

Government's objection must be dismissed.

As to the merits, the Government allege in the first place that

the length of the proceedings can be justified in the light of the

delicate nature of the issues involved; in particular, the delay

between the committal for trial on 23 October 1986 and the first

hearing on 19 May 1990, was due to the entering into force of the new

code of criminal procedure.

As regards the alleged lack of information on the accusation, the

Government allege that the applicant was informed of the object of the

accusation and was enabled to defend himself during the preliminary

investigation, the trial and the appeal proceedings. The notification

of the allegation that he had committed the offence in fact contained

the description of the charge, which was repeated in the summons to

appear before the Court. When he was interrogated on 30 September 1986,

the applicant defended himself.

The applicant claims that his defence rights were seriously

hindered throughout the proceedings.

Having examined these complaints, the Commission considers that

they raise serious issues of facts of law which are of such complexity

that their determination should depend on an examination on the merits.

These complaints cannot therefore be regarded as manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

No other ground for declaring them inadmissible has been established.

For these reasons, the Commission, unanimously,

DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE,

without prejudging the merits of the case.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

M.M. v. ITALY

M.M. v. ITALY

LEXI