Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23451/94

by Giuseppe MOTTA

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 6 April 1995, 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

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 20 November 1993

by Giuseppe MOTTA against Italy and registered on 14 February 1994

under file No. 23451/94 ;

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

(a) The particular circumstances of the case

The applicant is an Italian national, born in 1952 and currently

residing in Rome. He is a private detective by profession.

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

summarised as follows.

On 25 April 1987, on the occasion of an inspection of the

applicant's car in the applicant's presence, the police found a bullet

for military use. On that occasion, the applicant indicated an address

for service in Rome.

He was subsequently charged with illegal detention of military

ammunition.

At the address he had indicated to the police, on 5 January 1988

the applicant was delivered a notice to appear before the police on 8

January 1988, in order to be interrogated in relation to the charge

against him. He failed to do so.

The police, having tried in vain to contact the applicant at that

address, and after having carried out further searches, concluded, in

their report dated 14 March 1988, that the applicant had become

untraceable.

By decree issued by the Public Prosecutor's Office of Rome on

28 March 1988, the applicant was therefore declared untraceable

("irreperibile") and a lawyer for his defence was appointed. The

notification of the summons to appear before the investigating judge

was therefore effected by being lodged in the registry, and the

applicant's appointed lawyer was promptly informed thereof (see below).

By judgment of the Rome Court of 6 October 1988, the applicant

was convicted in absentia ("in contumacia") and sentenced to six

months' imprisonment; the sentence was suspended.

On 9 January 1989 the extract from the judgment rendered by

default was served on the applicant at another address; it was

delivered to his cohabiting partner, who allegedly forgot to inform him

thereof. The judgment became final on 13 January 1989.

On 12 October 1990, the applicant applied to the Rome Court of

Appeal for a review ("revisione") of the first instance judgment. The

Court of Appeal rejected the application as manifestly ill-founded on

21 May 1991, after a hearing on the same day.

On 7 December 1991 the applicant, claiming to have only recently

learnt about his conviction and sentence and challenging the validity

of the serving of both the summons to appear before the investigating

judge and the sentence, applied to the Rome Court for an extension of

the time-limit in order to lodge an appeal against the first instance

judgment. His application was rejected on 19 December 1991, on the

grounds that the serving of the sentence by default was valid, the

negligence of the applicant's partner being irrelevant, and that a late

appeal was therefore inadmissible.

The applicant's subsequent appeal was rejected by the Rome Court

of Appeal on 7 May 1992, on the grounds that the serving of the

sentence was valid and that the applicant had in any event failed to

give evidence of the date on which he had had knowledge of his

conviction in absentia and, as a consequence, of his compliance with

the ten days' time-limit to apply for the extension (see below).

The applicant's appeal on points of law was rejected by the Court

of Cassation by judgment of 21 April 1993, filed with the Registry on

22 September 1993.

(b) Relevant domestic law

A. Notification to an accused who is untraceable ("irreperibile")

Article 170 of the former Italian Code of Criminal Procedure:

"Se non é possibile eseguire le notificazioni ( ... ) l'ufficiale

giudiziario ne fa relazione al giudice ( ...) o al pubblico

ministero ( ... ).

(Questi) dopo aver disposto nuove ricerche ( ... ) emette decreto

con il quale, nominato un difensore all'imputato (...), ordina

che le notificazioni ( ... ) siano eseguite mediante deposito

nella cancelleria ( ... ). Di ogni deposito deve essere dato

avviso senza ritardo al difensore."

(translation)

"When it is not possible to carry out a notification, the bailiff

informs the judge or the public prosecutor (who ordered the

notification).

After directing that further searches be conducted, the judge or

the public prosecutor shall take a decision appointing a defence

lawyer to act for the accused, and ordering that notifications

be effected by means of lodging the relevant documents with the

registry. The defence lawyer shall be informed without delay when

any such document is so lodged."

B. Extension of the time-limit

Article 175 para. 2 and 3 of the new Italian Code of Criminal

Procedure:

"Se é stata pronunciata sentenza contumaciale ( ... ) puo' essere

chiesta la restituzione nel termine per proporre impugnazione

( ... ) dall'imputato che provi di non avere avuto effettiva

conoscenza del provvedimento, sempre che ( ... ) il fatto non sia

dovuto a sua colpa.

La richiesta per la restituzione nel termine é presentata, a pena

di decadenza, entro dieci giorni da quello ( ... ) in cui

l'imputato ha avuto effettiva conoscenza dell'atto ( ... )."

(translation)

"When a judgment has been rendered by default, the accused can

apply for an extension of the time-limit to lodge an appeal

against it, if he can give evidence that he did not have

knowledge thereof through no fault of his own.

The request for the extension of the time-limit must be filed

within ten days of the date of the actual knowledge of the

judgment by the accused."

COMPLAINT

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

that he was convicted in absentia without the benefit of a fair and

public hearing and without the opportunity to defend himself. He

challenges the validity of the notifications of the summons and of the

sentence by default.

THE LAW

The applicant complains that he did not have a fair trial, in

that he was convicted in absentia without having the possibility of

defending himself. He alleges that neither the serving of the summons

nor the conviction in absentia was valid.

He invokes Article 6 (Art. 6) of the Convention, which, as far

as relevant, reads:

"In the determination of ( ... ) any criminal charge against him,

everyone is entitled to a fair and public hearing".

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

this complaint discloses any appearance of a violation of the

Convention, as the application 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 and within a period of six months from the

date in which the final decision was taken.

In the present case, the Commission observes that, even assuming

that the summons to appear before the investigating judge and the

judgment by default were not duly served on the applicant, it appears

from the file that he became aware of his conviction and sentence in

absentia at the latest when he applied to the Court of Appeal for

review of the judgment, namely on 12 October 1990.

The Commission recalls that the person who is unaware, at the

time when it was committed, of an act which causes him a prejudice, is

not absolved from exercising available remedies as soon as he becomes

aware of this act (cf. No. 8334/78, dec. 7.5.81, D.R. 24 pp. 103 ss.).

It notes that in October 1990, after he had become aware of his

conviction in absentia, the applicant applied to the Court of Appeal

for a review of the judgment, which was declared inadmissible, rather

than applying for an extension of the time-limit to lodge a late

appeal, a faculty which was available to him under Italian law.

It follows that the applicant failed to avail himself of the

remedy at his disposal under domestic law.

The Commission furthermore 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 (cf. No. 9022/80, dec. 13.7.83, D.R. 33 p. 21; No. 10363/83,

dec. 1.7.85, D.R. 43 pp. 171, 173) and that the application must be

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

For these reasons, the Commission unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

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

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MOTTA v. ITALY

MOTTA v. ITALY

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