FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31803/96 by Massimo GOLFETTO against Italy

The European Court of Human Rights, sitting on 15 November 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mr A. Kovler , judges Mr L. Ferrari bravo , ad hoc judge , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 5 May 1996 and registered on 10 June 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Massimo Golfetto, is an Italian national, who was born in 1926 and lives in Padua . He is represented before the Court by Mr U. Giuliani Balestrino, a lawyer practising in Milan.

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

On 11 December 1989, 24 November 1990 and 9 April 1991 respectively, the Padua Court declared three companies, allegedly directly or indirectly administered by the applicant, insolvent.

In connection with these facts, the applicant was charged on an unspecified date with fraudulent trading and was committed for trial in the Padua Court. At a hearing on 10 February 1995, the presiding judge of the Court of Padua questioned a witness, A.R., who had been the official receiver in the insolvencies of the above-mentioned companies. The presiding judge asked him whether he had been previously involved, as a victim, in criminal proceedings. A.R. answered that he recently had, because someone had fired shots at the door of his house, probably as an act of intimidation. The witness added that the outcome of those proceedings was that the applicant's son had been found guilty and had been sentenced to two years' imprisonment.

In fact, the presiding judge of the Court of Padua had also presided over the criminal proceedings against the applicant's son, which had ended on 18 January 1994.

On 30 March 1995 the applicant filed a request with the Court of Appeal of Venice for the presiding judge of the Court of Padua to be removed from hearing his case ( ricusazione ). The grounds for the request were that the presiding judge had stated his opinion on the facts of the case when not exercising his judicial functions (Article 36 para. 1 (c) of the Italian Code of Criminal Procedure) or, in the alternative, that he had stated his opinion on the facts of the case before the end of the proceedings (Article 37 para. 1 (b) of the same Code).

On 5 April 1995 the Venice Court of Appeal rejected the applicant's request as manifestly ill-founded. The applicant appealed against that decision to the Court of Cassation. On 9 November 1995 the latter court rejected the applicant's appeal.

On 28 December 1995 the Court of Padua found the applicant guilty of fraudulent insolvency and sentenced him to six years' imprisonment and five years' disqualification from civic office.

On 9 April 1996 the applicant lodged an appeal against the above decision with the Venice Court of Appeal.

When lodging the appeal with the Venice Court of Appeal, the applicant did not explicitly refer to the alleged lack of impartiality of the first-instance judge. Before the Court, he maintains that he did not explicitly raise such a complaint because his request for the judge to be removed had ended with a final decision of the Court of Cassation rejecting it and that, in any event, in Italian law the issue of the alleged partiality of a first-instance judge was not a ground on which the Court of Appeal could set aside a first-instance judgment.

According to the latest information provided by the Government, on 4 July 2001 the proceedings in the Court of Appeal were still pending because priority had been accorded to other proceedings. According to the Government, the first hearing should take place at the beginning of 2002.

COMPLAINT

The applicant complains, under Article 6 § 1 of the Convention, that the presiding judge of the Court of Padua was not impartial and, generally, about the unfairness of the proceedings brought against him in that court.

The applicant maintains that the questions put by the presiding judge of the Padua Court to the witness A.R. were neither linked to something the witness had stated nor introduced by the parties: they pertained to facts which the judge already knew, that is, facts which were not strictly related to the case and which were clearly unfavourable to the applicant. The applicant stresses that the Padua Court, when sentencing him to six years' imprisonment, took into account elements such as the fact that his son had committed a crime against the witness A.R., which should not have been considered relevant to the case at issue.

THE LAW

The applicant complains, under Article 6 § 1 of the Convention, that the presiding judge of the Court of Padua was not impartial, having regard to the nature of the questions put by him to the witness A.R., and, generally, about the unfairness of the proceedings brought against him in that court.

Article 6 § 1 of the Convention, in so far as relevant, provides as follows:

“In the determination (...) of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. (...)”

The Government raise a preliminary objection to the admissibility of the complaint. They contend that the appeal proceedings are still pending and stress that the appeal lodged by the applicant reiterates essentially the same complaints as were set out in his request for the presiding judge of the Padua Court to be removed from the case. In fact, in his appeal the applicant complains that in the determination of his sentence, the Padua Court also relied on A.R.’s answers to the presiding judge’s questions.

As to the alleged partiality of the presiding judge of the Padua Court, the Government maintain that, in any event, the questions addressed to A.R. did indeed concern the accusations against the applicant and were aimed specifically at assessing A.R.’s credibility and the overall behaviour of  the applicant. Furthermore, it has not been proved that the presiding judge of the Padua Court was mindful at the time that he had presided over previous proceedings in which A.R. was also involved or that the questions put to A.R. were aimed at casting the applicant in a negative light. Moreover, the fact of putting the impugned questions to A.R. did not produce any prejudicial consequences for the applicant, since the applicant’s son, and not the applicant, had been found guilty of the crime committed against A.R.

Finally, the Government maintain that the applicant’s complaint is based on an unproven assumption and that it is difficult to see how, by his questions, the presiding judge of the Padua Court may be considered to have expressed his opinion on the case since the questions at issue had no precise bearing on the object of the case brought against the applicant.

As to the Government’s inadmissibility plea, the applicant stresses that his application to the Court was not focused on his conviction or his punishment as such. Those are matters which he is obviously contesting in the pending appeal proceedings. Rather, the specific issue raised in his application related to the alleged partiality of the presiding judge of the Padua Court. As to this point, the decision of the Court of Cassation on his request for that judge to be withdrawn constituted the final domestic decision. That this view is correct is also confirmed by the fact that proceedings brought by a defendant before the Court of Cassation aimed at challenging a judge’s impartiality may result in a decision of that court to impose a pecuniary sanction on the defendant.

As to the merits, the applicant maintains that it should not be considered acceptable that a judge can introduce into a trial, through his direct examination of a witness, evidence derived from his own personal knowledge.

The Court notes at the outset that the applicant has not adduced any elements which go to the unfairness of the proceedings as a whole. The applicant does not refer at all to this aspect in his submissions. The Court considers, therefore, that his application concerns essentially the alleged partiality of the presiding judge of the Padua Court. In any event, according to the Court’s case-law, the observance of the fundamental principle of the impartiality of the courts is an element of the more general right to a fair trial guaranteed by Article 6 § 1 (see the De Cubber v. Belgium judgment of 26 October 1984, Series A no. 86, § 30).

The Court observes in this connection that an issue might arise as to the relevance of the appeal proceedings in the Venice Court of Appeal to the applicant’s specific complaint. It might indeed be argued that the applicant cannot claim at this stage to be a victim of a breach of Article 6, having regard to the possibility that he may be acquitted on appeal. This being said, it further observes that the applicant has contended that the Court of Appeal will be unable to address the issue of the alleged impartiality of the presiding judge of the Padua Court when considering his challenge to his conviction and sentence since the decision of the Court of Cassation has disposed of that issue. On that point, the Court recalls that shortcomings in the independence and impartiality of a trial court cannot be corrected by subsequent appeal proceedings in which an accused does not obtain a full re-hearing. In such circumstances, an accused is entitled to a first-instance tribunal which fully meets the independence and impartiality requirements of Article 6 § 1 of the Convention (see, mutatis mutandis , the Findlay v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, § 79).

However, the Court does not consider it necessary in the instant case to deal with this question or with the Government’s related preliminary objection since the application is in any event inadmissible for the following reasons.

The Court recalls that, according to its well-established case-law, there are two aspects to the requirement of impartiality in Article 6 § 1. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Secondly, the tribunal must also be impartial from an objective point of view, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, for instance, the Fey v. Austria judgment of 24 February 1993, Series A no. 255-A, § 28; the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, § 49).

As to the first aspect, the Court recalls that “personal impartiality is to be presumed unless there is evidence to the contrary” (see, for instance, the Pullar v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 792, § 30). The principle that a tribunal shall be presumed to be free of personal prejudice or partiality “reflects an important element of the rule of law, namely that the verdicts of a tribunal should be final and binding unless set aside by a superior court on the basis of irregularity or unfairness (...). Although in some cases (...) it may be difficult to procure evidence with which to rebut the presumption, it must be remembered that the requirement of objective impartiality provides a further important guarantee” ( ibidem , § 32). In the instant case, the applicant has not alleged that the presiding judge of the Padua Court deliberately took a partial attitude aimed at prejudicing him. Therefore, the objective impartiality of the latter is essentially at issue.

The Court recalls that under “the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of some importance” ( Saraiva de Carvalho v. Portugal judgment of 22 April 1994, Series A no. 286-B, § 35).

The Court considers that the sole fact that the presiding judge of the Padua Court put to A.R. a question about the criminal proceedings in which the applicant’s son had been involved is not of itself sufficient. Even if the Court finds it difficult to accept the Government’s argument that the presiding judge of the Padua Court did not recall at the time the proceedings involving the applicant’s son, it does consider their argument that the judge’s questions were aimed at assessing A.R.’s credibility to have substance. It notes in this connection that the impugned questions did not concern the very facts on which the accusation against the applicant were based. In the Court’s opinion, there is no reason to doubt that the judge’s decision to question the witness A.R. about the previous criminal proceedings was consistent with the function of a fact-finding tribunal in establishing the truth, in particular by testing the credibility of both the accused and the witnesses before it. For the Court, the judge’s decision to put the impugned questions to A.R. cannot be seen as proof of any bias on his part; rather, any complaints which the applicant may have in this regard must be seen from the standpoint of whether the requirements of an adversarial procedure were respected, including with respect to the relevance of evidence, the decision to admit evidence and the rights of the defence in this connection. The Court is not required to rule on these matters, particularly as the applicant’s appeal is pending before the Venice Court of Appeal.

Furthermore, even if it is true that the presiding judge of the Padua Court had previously participated in the proceedings concerning the applicant’s son, the latter proceedings concerned a different set of facts and criminal allegations which had no immediate link with the applicant’s position. Therefore, a legitimate doubt can be excluded in this respect too.

In conclusion, the Court considers that the applicant has not alleged any ascertainable facts raising objectively justified doubts as to the impartiality of the presiding judge of the Padua Court. The application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President