Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21068/92

by A.M.

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996 the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 2 September 1992

by A.M. against Italy and registered on 15 December 1992 under file No.

21068/92 ;

Having regard to the reports provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to the observations submitted by the respondent

Government on 13 February 1995 and the observations in reply submitted

by the applicant on 10 March 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian citizen, born in 1946 and at present

detained in Sicily. He is a lawyer by profession.

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

summarised as follows.

1. The house searches

On 20 February 1990, in connection with certain criminal

proceedings pending against the applicant on charges of belonging to

a mafia-type organisation, drug offences, illegal possession of

firearms and forgery, the Marsala Public Prosecutor issued a search

warrant against the applicant pursuant to Article 250 of the code of

criminal procedure. According to this provision, when starting a house

search the judicial authorities must inform the accused or the person

who is present of his right to be assisted or represented by a lawyer

or a person of his choice, provided that the latter is promptly

available ("prontamente reperibile").

The search warrant was served on the applicant on 21 February

1990; on the same day, the house search was carried out by the Marsala

police in the applicant's presence. The applicant appointed a lawyer,

but the latter could not be found promptly and therefore could not

attend the search, which was eventually unsuccessful.

The applicant was later arrested and detained on remand.

In June 1990, on the applicant's appeal on points of law against

his arrest, the Court of Cassation released him on the ground of a

procedural mistake, namely that his case had been dealt with on the

basis of the new code of criminal procedure, just entered in force,

whereas the old code ought to have been applied.

On 27 September 1990 a new warrant of arrest was issued by the

Marsala Investigating Judge against the applicant, who had meanwhile

absconded.

On 16 October 1990, the Trapani police searched the applicant's

apartment in Campobello pursuant to article 352 para. 2 of the code of

criminal procedure, according to which police officers can proceed to

a search without the warrant being issued in advance, when they can

reasonably expect that an absconding accused is hiding there. The

record of the search must then be submitted within 48 hours of the

search to the Public Prosecutor, who ratifies ("convalida") the search

provided that it is in accordance with the law.

The applicant could not be found. The record of the search was

immediately sent to the Public Prosecutor who ratified it.

On 8 March 1991 and 22 February 1992, other unsuccessful searches

in pursuance of article 352 para. 2 of the code of criminal procedure

were carried out by the police of Mazara del Vallo of the apartments

in both Campobello and Torretta Granitola, the latter belonging to the

applicant's wife. The relevant records were submitted to the Public

Prosecutor, who ratified the searches.

The applicant alleges that in May 1992 the apartment in

Campobello was searched again, this time in the presence of applicant's

counsel; at the same time the police searched the flat in Torretta

Granitola with a view to seize hidden firearms, which they eventually

did not find. On this occasion, the applicant's property was damaged.

The Government do not mention the episode.

In the meantime, another warrant of arrest against the applicant

was issued by the Marsala investigating judge.

On 27 September 1992, another search of the flat of Torretta

Granitola was carried out by the Castelvetrano police, with a view to

finding hidden firearms in pursuance of Article 41 of the Law on public

safety ("Testo Unico delle leggi di pubblica sicurezza"), which

provides:

"Gli ufficiali e gli agenti di polizia, che abbiano notizia,

anche se per indizio, della esistenza, in qualsiasi locale

pubblico o privato o in qualsiasi abitazione, di armi,

munizioni o materie esplodenti, non denunciate o non consegnate

o comunque abusivamente detenute, procedono immediatamente a

perquisizione e sequestro".

(translation)

"Should the Judiciary Police have knowledge or suspicion that

firearms, ammunition or explosives, which have not been duly

declared or handed over, or are anyway illegally detained, are

kept on any public or private premises or in any private house,

they will immediately search such premises and seize them",

The applicant maintains that on this occasion the police

frightened the applicant's minor daughters with guns and machine-guns

and that no record of the search was made. The Government have

submitted the record of the search, according to which only one of the

applicant's daughters was present.

On 12 January 1993, another search, eventually unsuccessful,

pursuant to Article 352 para. 2 of the code of criminal procedure was

carried out by the Castelvetrano police of the apartment in Campobello,

in the presence of the applicant's wife. The record was then submitted

to the Public Prosecutor, who ratified the search.

Finally, another search pursuant to Article 41 of the Law on

Public Safety was carried out on 20 January 1993.

2. The criminal proceedings

On 12 January 1976 the applicant and other coaccused were taken

into police custody ("stato di fermo"), under suspicion of kidnapping,

theft, illegal possession of firearms and other crimes related thereto.

The investigation concerned altogether 23 persons.

The Public Prosecutor Office of Marsala issued a warrant of

arrest ("ordine di cattura") against the applicant, who was

subsequently detained on remand.

The accusation brought against the applicant and the coaccused

was mainly based on the testimony of two witnesses, F.M. and V.P.

In January and February 1976, F.M. received various anonymous

intimidating letters. He and his family were threatened. On

9 February 1976, he asked the Marsala Public Prosecutor for protection.

On 2 February 1977, F.M. was examined by the investigating judge

and confronted with one of the applicant's coaccused. F.M. identified

the applicant from a telefax reproducing a photograph of him taken for

an electoral campaign. The applicant refused to undergo an

identification parade ("ricognizione personale") in the presence of

F.M.

By decision of 2 December 1977, the Marsala Investigating Judge

closed preliminary investigations, dismissed the case against certain

coaccused and committed the applicant and four coaccused for trial

before the Marsala Court.

F.M. could not be summoned to appear as a witness during the

trial, as he had fled to Venezuela.

By judgment of 9 June 1978, the Marsala Court acquitted the

applicant for not having committed the crime ("per non avere commesso

il fatto"), and released him.

On the Public Prosecutor's appeal against the applicant's

acquittal from all charges, by decision of 14 March 1979 the Palermo

Court of Appeal decided to reopen the investigations ("rinnovazione del

dibattimento") in order to hear a witness, G.C., and to have knowledge

of the outcome of other criminal proceedings pending against certain

of the applicant's presumed accomplices.

By a decision of 20 June 1979, the Court of Appeal decided in

particular to await the outcome of a specific trial. The latter

proceedings terminated on 4 March 1983.

At the hearing of 21 March 1983, the accused were examined by the

court.

The witness G.C. was heard on 2 May 1983.

By judgment of 1 June 1983, the Court of Appeal, after completing

the investigation, convicted one of the applicant's coaccused and

acquitted the applicant and the other coaccused for lack of evidence

("per insufficienza di prove"). One of the applicant's coaccused was

also found guilty of having threatened F.M., thus causing him to flee

abroad.

Both the applicant and the Public Prosecutor lodged an appeal on

points of law against this judgment.

By a judgment of 1 February 1985, the Court of Cassation

dismissed the applicant's appeal and upheld that of the Prosecutor. In

particular, the Court held that there were not enough grounds to

differentiate the position of the applicant from that of the convicted

coaccused and therefore to acquit him. The proceedings were therefore

referred back to another Chamber of the Court of Appeal of Palermo,

with detailed factual arguments of the Court of Cassation to be taken

into consideration.

By judgment of 7 May 1987, after reexamining all the evidence

gathered in the course of the previous proceedings, the Court of Appeal

found the applicant guilty of all charges, and sentenced him to 15

years' imprisonment.

On the applicant's appeal on points of law, the Court of

Cassation quashed this judgement on 10 April 1990 for lack of reasons

("difetto di motivazione"), and referred the case back to another

Chamber of the Court of Appeal of Palermo.

In June 1990 the applicant absconded in connection with another

set of criminal proceedings, meanwhile instituted against him (cf.

below).

On 27 July 1990, a warrant of arrest was issued against him. He

could not be found and was therefore declared untraceable and fugitive

("latitante").

By judgment in absentia of 7 November 1991, the Court of Appeal

of Palermo found the applicant guilty of both kidnapping and theft (the

other charges were dismissed as time-barred), and sentenced him to 14

years' imprisonment. The Court examined in particular the question of

F.M.'s credibility; for this purpose, it examined all his declarations

and considered that his apparent contradictions were due to the fact

that he had been seriously threatened by the applicant and his

coaccused. The Court came to the conclusion that F.M.'s testimony was

convincing. The Court finally addressed the issue of the applicant's

identification by F.M. from the telefax, and held that such

identification had been precise and was thus fully acceptable.

On 30 January 1992 the applicant appealed on points of law to the

Court of Cassation. His main grounds for the appeal were the allegedly

insufficient reasons given by the court of appeal in respect of its

finding that F.M. was credible and the identification acceptable.

On 4 May 1992, the Palermo Investigating judge issued a warrant

of arrest against the applicant, who was still a fugitive.

By judgment of the Court of Cassation dated 9 June 1992, filed

with the Registry on 12 December 1992, the applicant's conviction and

sentence were confirmed. The Court held in particular that the lower

court had scrupulously tested F.M.'s credibility and had given ample

and convincing reasons for considering his testimony fully credible and

his identification acceptable also in the light of the further

corroboration, such as the testimony of another witness V.P.

On 29 August 1992, the Palermo Public Prosecutor issued an order

for imprisonment against the applicant in execution of his final

conviction.

In August 1993, the applicant was finally found in Switzerland,

from where he was extradited to Italy on 23 November 1993.

COMPLAINTS

1. The applicant complains about a series of house searches that

were carried out by the police allegedly not in accordance with the

law. In particular, the applicant alleges that these searches were

unlawful, in that they were carried out on premises that belonged to

his family and not to himself, all except one in the absence of his

counsel and, except on two occasions, without any record of the

operations being made. He also maintains that on one occasion the

policemen who were carrying out the search frightened his minor

daughters.

He further complains of the damage to his property as a

consequence of the searches.

He invokes Articles 8 and 13 of the Convention in this respect.

2. The applicant further complains under Articles 1, 2, 5 and 6 of

the Convention about the length and fairness of another set of criminal

proceedings.

As to the fairness, he claims in particular that his conviction

and sentence was only based on the testimony of a witness who was not

credible and that the judges incorrectly assessed the evidence before

them.

3. In his letter dated 13 October 1993, the applicant complains,

with reference to the criminal proceedings mentioned sub 2, that he did

not have the opportunity to examine the main witness against him in the

course of the trial, in breach of Article 6 para. 3 (d) of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 September 1992 and registered

on 15 December 1992.

By a letter dated 13 October 1993, the applicant added a

complaint relating to the impossibility for him to examine the main

witness against him during the trial.

On 12 October 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure, as to the complaints related to the

house searches and to the length of the criminal proceedings.

The Government's written observations were submitted on

13 February 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 10 March 1995.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention about a series of house searches that were carried out by

the police in connection with certain criminal proceedings, instituted

against him in February 1990 on charges of belonging to a mafia-type

organisation and drug offenses. He also complains of the damages to his

property.

The applicant alleges that the said searches were unlawful, in

that they were carried out on premises that belonged to his family and

not to himself, all except one in the absence of his counsel and,

except on two occasions, without any record of the operations being

made.

Article 8 (Art. 8) of the Convention provides as follows:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

2. There shall be no interference by a public authority with the

exercise of this right except such as is in accordance with the

law and is necessary in a democratic society in the interests of

national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

a) The Government raise an objection of inadmissibility on the

ground that domestic remedies have not been exhausted in that the

applicant has failed to lodge an appeal on points of law against the

search warrants in pursuance of article 111 of the Italian

Constitution, has not complained before the national courts of an

arbitrary search ("perquisizione arbitraria") on the part of the police

pursuant to article 609 of the criminal code and has not sought

compensation for the alleged damages to his property.

On the merits, the Government concede that there was an

interference with the applicant's right to respect for his private life

and home, but argue that such interference was "in accordance with the

law" contrary to the applicant's allegations. They have submitted the

records of the searches. In reply to the applicant's allegations, they

argue in particular that, according to the relevant legal provisions,

the presence of a lawyer during a search is not essential: the person

against whom the search is carried out has the right to be assisted by

his lawyer or by a person of his choice, provided that the latter is

promptly available. This is justified by the very nature of a search,

which is a "surprise act" ("atto a sorpresa"). Moreover, any public or

private premises or private house can be searched.

The Government also submit that the searches at issue were

carried out to seize allegedly hidden firearms and to arrest the

applicant who had absconded, and were therefore "necessary in a

democratic society" for legitimate aims, namely public safety and

prevention of crime.

As to the applicant's allegations that the police frightened his

minor daughters, the Government argue that it is inevitable that a

search to find allegedly hidden arms is carried out by armed policemen,

and it is therefore plausible that the people who are subject to the

search are frightened. However, they maintain that the policemen did

not overstep the limits of legality and respect for dignity.

b) The applicant objects that he could not exhaust domestic remedies

because he was a fugitive; he argues that in any event no remedy would

be effective in Italy. On the merits, he insists that the way in which

the searches were conducted was in breach of the law.

c) In so far as the lawfulness of the searches is concerned, the

Commissions observes that the applicant has failed to avail himself of

the remedies indicated by the Government. However, the above remedies

seem to concern only the possible arbitrariness of the searches. It

appears in fact that according to the relevant provisions of the

Italian code of criminal procedure, the lawfulness - i.e. the

compliance with the procedural formalities - of a search cannot be

challenged ("riesame") unless the search ends by a seizure.

However, the Commission considers that it is not necessary to

examine whether the applicant has complied with the requirements of

Article 26 (Art. 26) of the Convention in so far as exhaustion of

domestic remedies is concerned, as, even assuming that he has done so,

this complaint is inadmissible for the following reasons.

The Commission recalls the Convention organs' constant case-law

to the effect that house searches constitute an interference with an

applicant's right to respect for his private life and home (cf. Eur.

Court H.R., Chappell judgment of 30 March 1989, Series A No. 152-A, p.

21, paras 50-51; Funke judgment of 25 February 1993, Series 256-A, p.

22, para. 48; Crémieux judgment of 25 February 1993, Series A No. 256-

B, p. 60 para. 31).

The Commission must therefore examine whether this interference

was justified under Article 8 para. 2 (Art. 8-2) of the Convention.

It must consider first whether the interference in question was

"in accordance with the law".

The Commission points out that the interference cannot be held

to be "in accordance with the law" within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention, unless, first of all, it has some

basis in domestic law (cf. the Chappel judgment cited above, p. 22,

para. 52). However, the words "in accordance with the law" also relate

to the quality of the law in question, since they require it to be

accessible to the person concerned, who must moreover be able to

foresee its consequences for him, and compatible with the rule of law

(cf. Eur. Court H.R., Sunday Times judgment of 27 october 1979, Series

A No. 30, p. 31 para. 49; Kruslin judgment of 24 April 1990, Series A

No. 176-A, p. 20, para. 27 ss.).

The Commission emphasises that the scope of its power to review

compliance with the relevant domestic legislation is limited under the

Convention. It is in the first place for the national authorities,

notably the courts, to interpret and apply the domestic law (Eur. Court

H. R., Niemitz v. Germany judgment of 16 December 1992, Series A no.

251-B, p. 41).

In the present case, the Commission observes that the bases for

the searches are to be found in the Italian code of criminal procedure

and in the Law on Public Safety. It is undisputed that both texts are

adequately accessible to citizens and formulated with sufficient

precision.

The applicant however alleges that the searches were unlawful

because the searched apartments did not belong to him, his lawyer was

not present and no record was made of all the operations.

The Commission observes in this respect that the Government have

submitted the records of the searches, from which it appears that the

police acted in conformity with the code of criminal procedure and with

the Law on Public Safety. The searches have been considered to be "in

accordance with the law" and have thus been ratified by the judicial

authorities.

The Commission further observes that, in the light of the

relevant provisions of domestic law, the other arguments adduced by the

applicant do not disclose any non-observance of the relevant legal

provisions.

The searches were therefore "in accordance with the law", as

required by Article 8 para. 2 (Art. 8-2) of the Convention.

The Commission must next examine whether the interference was

"necessary in a democratic society" for a legitimate aim, and whether

it was proportionate to this aim.

The Commission observes that two warrants of arrest had been

issued against the applicant on 27 July 1990 and 4 May 1992

respectively; an order for imprisonment had been issued on 29 August

1992 by the Palermo Public Prosecutor. Two different sets of

proceedings concerning charges inter alia of belonging to a mafia-type

association, possession of firearms and drug offences, were pending

against the applicant, who was also a fugitive.

The aims pursued by the searches were to collect evidence in the

criminal proceedings against him, to seize allegedly hidden firearms

and to arrest the applicant who had absconded.

The Commission is of the opinion that, even assuming that the

applicant has exhausted the domestic remedies which were available to

him under Italian law, the interference with his rights under Article

8 (Art. 8) of the Convention pursued aims, namely the prevention of

crime and public safety, that were legitimate under paragraph 2 of

Article 8 (Art. 8-2).

The Commission further considers that, although the interference

with the applicant's right to respect for his private life and home was

relatively serious, the searches could be regarded as essential to

enable the Italian authorities to obtain evidence against the

applicant, to prevent further offences and to arrest the applicant who

was a fugitive.

In particular, the file contains nothing to suggest that in the

present case the searches were conducted in a way which was

disproportionate to the legitimate aims pursued.

The Commission therefore considers that the measures complained

of did not go beyond what the respondent Government could regard as

necessary in a democratic society for the prevention of crime and

public safety.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 1 (Art. 27-1) of the

Convention.

d) The Commission then observes that, in so far as the damages to

property are concerned, the applicant has failed to seek compensation

for such damages, a remedy which was available to him under Italian

law.

The Commission considers that in the present case there are no

special circumstances that could absolve the applicant from exhausting

the above remedy.

It follows that the applicant has not met the requirements of

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies, and that this part of the complaint must be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

e) The applicant finally invokes Article 13 (Art. 13), which

provides that:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before a

national authority notwithstanding that the violation has been

committed by persons acting in their official capacity".

The Commission recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention. It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.

23, para. 52).

The Commission finds that the applicant cannot be said, in the

light of its finding above, to have an "arguable claim" of a violation

of his Convention rights.

It follows that this complaint must be dismissed as manifestly

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

Convention.

2. The applicant further complains about the length of the criminal

proceedings instituted against him on charges of kidnapping, theft and

illegal possession of firearms.

The Commission observes that the proceedings in question began

on 12 January 1976 and ended on 12 December 1992, when the Court of

Cassation judgment was filed with the Registry.

However, the Commission further observes that the applicant

absconded in June 1990; it recalls in this respect that when an accused

person flees from a state which respects the principle of the rule of

law, it can be assumed that he is not entitled to complain of the

unreasonable duration of the proceedings following his flight, unless

he can show sufficient reason to rebut this assumption (cf. No.

7438/76, Ventura v. Italy, Report of the Commission, 15 December 1980,

D.R. 23, pp. 59-60 para. 197). In the present case, the applicant

failed to do so.

The Commission therefore considers that the period to be taken

into consideration ended in June 1990; the overall length of the

proceedings is thus 14 years and five months.

The Government invoke the complexity of the investigations and

the number of coaccused; in these circumstances, they maintain that the

overall duration of the proceedings cannot be regarded as being

unreasonable. The applicant objects.

The Commission considers, in the light of the criteria

established by the case-law of the Convention on the question of

"reasonable time" (the complexity of the case, the applicant's conduct

and that of the competent authorities), and having regard to all the

information in its possession, that a thorough examination of this

complaint is required, both as to the law and as to the facts.

3. The applicant finally complains 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

based themselves almost exclusively on the testimony of a witness who

was not credible and whom he could not examine during the trial, and

that they incorrectly assessed the evidence before them.

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: (...)

(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".

a) In so far as the applicant complains that he could not examine

a witness against him, the Commission first 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 (see Eur. Court H. R., Lüdi judgment of 15 June 1992, Series A, no.

238, p. 23, para. 43).

It further recalls that all the evidence must normally be

produced in the presence of the accused at a public hearing with a view

to adversarial argument. There are exceptions to this principle, but

they must not infringe the rights of the defence; as a general rule

paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d) require that the

defendant be given an adequate and proper opportunity to challenge and

question a witness against him, either when he makes his statements or

at a later stage of the proceedings (see the above mentioned Lüdi

judgment, loc. cit. p. 21, para. 47; Eur. Court H.R., Isgró judgment

of 19 February 1991, Series A no. 194-A, p. 12, para. 34; Eur. Court

H.R., Saïdi judgment, loc. cit., p. 56, para. 43).

However, the Commission is not required to decide whether or not

this complaint discloses an 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 after all

domestic remedies have been exhausted according to the generally

recognised rules of international law, and within a period of six

months from the date in which the final decision was taken.

The Commission also recalls that the condition of exhaustion of

domestic remedies is not met by the mere fact that the applicant has

submitted his case to the various competent courts; it is also

necessary for the complaint brought before the Commission to have been

raised at least in substance, during the proceedings in question (cf.

for example No. 11425/85, D.R. 53 pp.76 ss.).

In the present case, the Commission first observes that this

complaint was introduced by a letter of 13 October 1993, whereas the

proceedings at issue ended on 12 December 1992.

Even assuming that the applicant has complied with the six

months' time-limit laid down in Article 26 (Art. 26), the Commission

observes that the applicant has failed to raise before the national

courts any argument concerning the fairness of the proceedings in

respect of the impossibility for him to examine the witness in the

course of the trial, his arguments only challenging the witness'

credibility.

It follows that the applicant has not met the requirements of

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies.

The Commission further considers that in the present case there

are no special circumstances that could absolve the applicant from

exhausting domestic remedies.

This part of the application must therefore be rejected under

Article 27 para. 3 (Art. 27-3) of the Convention.

b) In so far as the applicant complains about his conviction and

sentence and namely about the way in which the evidence was assessed

by the domestic courts, 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 judgment of 16

December 1992, Series A, no. 247-B, pp. 34-35, para. 34; Windisch

judgement 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

judgment of 20 September 1993, Series A no. 261-C, p. 56 , para. 43).

The Commission notes that in the present case the applicant has

challenged, through his lawyer, the statements made by the witness,

thus providing the judges with all information which was capable of

casting doubt on the witness' credibility. Moreover, the Italian courts

had examined the evidence before them thoroughly, and had come to the

conclusion that the statements made by F.M. were convincing and

corroborated by other evidence, namely by the testimony of other

witnesses, by certain documents found in one of the accomplices'

possession and by the applicant's refusal to undergo an identification

parade.

The Court of Cassation analyzed thoroughly and in detail all of

the applicant's complaints, addressing the issues of the credibility

of the main witness and of the assessment of 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.

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.

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) Finally, the Commission does not consider that any issue arises

under Articles 1, 2 and 5 (Art. 1, 2, 5) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint about the length of the criminal

proceedings against him;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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A.M. v. ITALY

A.M. v. ITALY

LEXI