Lexploria

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

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PIAZZI v. ITALY

PIAZZI v. ITALY

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