SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36534/97 by Afolabi OSU against Italy

The European Court of Human Rights (Second Section) , sitting on 5 April 2000 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr L. Ferrari Bravo , Mr P. Lorenzen , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , Mr A. Kovler , judges ,   and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 July 1996 and registered on 18 June 1997,

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 is a British national, born in 1965 and living in Böbblingen (Germany). He is represented before the Court by Mr Alan Simmons, a lawyer practising in London. The respondent Government are represented by Mr U. Leanza, Agent, and by Mr V. Esposito, Co-agent.

A. The circumstances of the case

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

Between 1982 and 1989 the applicant lived in Italy, where he attended secondary school and university.

He used to live in a rented apartment located in the area of Terontola, in the province of Perugia. He was housing a Nigerian national whom the authorities maintain is the applicant’s cousin, whereas the applicant alleges he is only a friend.

On 23 February 1988 a criminal complaint was filed against the applicant and against the person who was sharing the apartment with him for membership of a drug-trafficking ring.

On an unspecified date a search warrant was issued against the applicant’s friend/cousin.

On 13 November 1988 the applicant’s apartment was searched. The police found a certain amount of drugs, partly in the house and partly in a nearby barn.

On the same date the applicant was arrested and charged with illegal possession of drugs.

During his police interrogation the applicant chose the family home of a couple of close friends, Mr and Mrs C., as the address for service of communications relating to the case, as provided for by Section 171 of the former Italian Code of Criminal Procedure.

On an unspecified date the applicant requested to be released on bail but it appears that his request was rejected.

On an unspecified date the applicant was committed for trial before the Arezzo District Court on the charge of illegal possession of drugs.

On 7 December 1988 the Arezzo District Court acquitted the applicant on the ground of lack of evidence ( insufficienza di prove ). The court however found the applicant’s friend/cousin guilty of possessing drugs and sentenced him to seven years’ imprisonment.

Following his acquittal the applicant again elected Mr and Mrs C.’s family home as his address for service.

Shortly after his acquittal the applicant moved to Germany where he obtained employment. The applicant did not inform the Italian authorities of this change of address as required by Italian law.

On an unspecified date the Public Prosecutor attached to the Arezzo District Court appealed against the judgment acquitting the applicant.

On 10 July 1989 the President of the Florence Court of Appeal issued a summons for the applicant to attend the appeal hearing set for 6 October 1989.

On 2 August 1989 the bailiff ( ufficiale giudiziario ) completed a form stating that he could not serve the summons on account of the fact that the applicant was no longer living there and that it appeared that he had left the country (“ non potuto notificare perchè il notificando non è piu’ domiciliato presso la famiglia in questione ma pare sia ritornato all’estero” ).

On 16 August 1989 the bailiff completed a report stating that he had served the summons on the applicant by depositing it at the registry of the Florence Court of Appeal.

On 6 September 1989 the registry of the Florence Court of Appeal issued a notice to Mr. Dieci, the applicant’s officially-appointed lawyer ( avvocato d’ufficio ), which stated that, as it had not been possible to serve the summons on the applicant, it had been filed with the court registry. On 25 September 1989 the bailiff served this notice on Mr Dieci.

On 6 October 1989 the Florence Court of Appeal reversed that part of the first-instance judgment concerning the applicant and sentenced him to seven years’ imprisonment for illegal possession of drugs. The applicant, who had had no notice of the appeal proceedings, was not present at the hearing.

On 3 January 1990 the bailiff wrote a report stating that the attempt to serve notice of the judgment on the applicant at the old address had failed, the applicant no longer being domiciled there, as declared by Mr C.

On 29 January 1990 the bailiff completed a report ( relata di notifica ) stating that he had served notice of the judgment on the applicant by filing it with the registry of the Florence Court of Appeal.

The applicant did not receive any notice of the appeal judgment or of the prison sentence passed on him.

On 19 August 1995 the applicant was arrested when entering Italy on his return from a holiday. He was immediately imprisoned in compliance with the Florence Court of Appeal judgment of 6 October 1989.

On 22 September 1995 the applicant made an application to the Court of Cassation seeking leave to make a “late appeal” ( restituzione nel termine ).

By a decision ( ordinanza ) of 30 January 1996, which was deposited in the court’s registry on 13 March 1996, the Court of Cassation rejected the applicant’s request. It noted that the applicant had had knowledge of his conviction in absentia upon his arrest on 19 August 1995, whereas he had lodged the request for the late appeal on 22 September 1995, thus failing to comply with the ten-day time-limit set out in Article 175 of the Code of Criminal Procedure.

In a letter dated 20 July 1996 Mr and Mrs C. stated that they had never been served with notification that an appeal had been lodged in respect of the applicant.

On about 31 May 1997 the applicant was released from prison and was expelled to the United Kingdom.

B. Relevant domestic law

Section 175 paragraphs 2 and 3 of the Code of Criminal Procedure entered into force on 24 October 1989 provides as follows:

“When a judgment is delivered in absentia , an accused who proves that he had no knowledge of the judgment can apply for an extension of the time-limit to lodge an appeal against it provided that the judgment has not already been appealed by his lawyer and that the fact that he did not have knowledge of the judgment is not attributable to him ....

The request for an extension of the time-limit shall be lodged by the accused within ten days of his actual knowledge of the judgment”.

Section 1 of Law no. 742 of 7 October 1969 provides as follows:

“The running of procedural time-limits in the ordinary and administrative courts shall be automatically suspended from 1 August to 15 September each year and shall recommence at the end of the suspension period. Should a time-limit start running during this period, the starting-date shall be automatically postponed to the end of such period.”

COMPLAINTS

The applicant complains under Articles 6 §§ 1 and 3 (b) (c) and (d) and 13 of the Convention, that the Florence Court of Appeal convicted him in absentia and that the Court of Cassation failed to hear his appeal on the merits.

THE LAW

The applicant complains that he was unable to challenge a finding of guilt made in his absence. He invokes Article 6 §§ 1 and 3 (a), (b), (c) and (d) as well as Article 13 of the Convention.

The Government submit that the notices of the appeal and of the appeal judgment were duly served on the applicant in accordance with the then applicable provisions of the criminal code. They underline that the applicant had failed to inform the authorities of his change of address.

They point out that, as it is stated in the decision of the Court of Cassation of 30 January 1996, the request for lodging a late appeal was filed more than ten days after the applicant had had knowledge of his conviction in absentia. They do not make any submissions as regards the suspension, during the judicial vacations, of the time-limit for lodging a late appeal.

The applicant argues that, even though he had failed to inform the authorities of his change of address, this information was available from Mr and Mrs C.. The authorities were aware of his return abroad by at least 2 August 1989, that is to say at least two months prior to the hearing before the Court of Appeal, and yet they did not make any additional enquiries about his whereabouts. Also the service of the judgment of the Court of Appeal was attempted at the old address in spite of the fact that it was by then well-known that the applicant did not reside there any longer.

The applicant further submits that his involvement in drug trafficking was assumed by the Court of Appeal on the basis of circumstantial evidence only.

As regards the alleged breach of his right of access to a court, the applicant accepts that limitation periods are in principle appropriate for the sound administration of justice; he submits however that a time-limit of ten days only is too short to allow an effective access to the remedy. As regards the suspension of this time-limit during the judicial vacations, which should have postponed its starting point up to 16 September 1995, the applicant underlines that the Government do not make submissions in this respect and  maintains that the Court of Cassation erred in not applying Section 1 of Law no. 742 of 7 October 1969, a provision which is apparently clear, precise and ascertainable.  Moreover, the Court of Cassation failed to offer any reasons for not applying it.

The Court considers, in the light of the parties’ submissions, that the applicant’s co m plaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the case. The Court concludes, ther e fore, that the application is not manifestly ill-founded within the meaning of Article 35 § of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible .

Erik Fribergh Christos Rozakis Registrar President