Information Note on the Court’s case-law No. 102

November 2007

Hany v. Italy - 17543/05

Decision 6.11.2007 [Section II]

Article 6

Article 6-3

Rights of defence

Inability of an accused to elect summary form of trial: inadmissible

Proceedings for murder and carrying a prohibited weapon were brought against the applicant following the death of an Egyptian fellow countryman from a stab wound to the abdomen in the building where the applicant lived. The order to remand the applicant – who had travelled to Egypt in the meantime – in custody was impossible to enforce as he was nowhere to be found at his home or at his place of work. He was declared a “fugitive” ( latitante ) and all notice was accordingly served on his officially assigned defence counsel. The applicant did not attend the preliminary hearing. He was committed for trial. When he was arrested a few months later the applicant was remanded in custody. He appointed a counsel of his choice, who applied, in vain, to reopen the time-limit within which summary proceedings had to be requested, which had expired since the preliminary hearing. The applicant subsequently pleaded not guilty, alleging that he had acted in self-defence. The trial court sentenced him to imprisonment.

Appealing on points of law, the applicant submitted that the authorities had declared him “untraceable” and “a fugitive” without taking into account the fact that the police had questioned his fellow tenant, Z, who had told them that the applicant had gone to Cairo, given them the Egyptian telephone number from which the applicant had called him and told them it was probably that of his family. The applicant alleged that the authorities had failed to follow the procedure for serving notice abroad and to try to contact him in Egypt, depriving him of the possibility of attending the preliminary hearing, where he could have asked the judge to be tried summarily. The Court of Cassation dismissed the appeal.

Inadmissible : The applicant complained that the fact that notice of the preliminary hearing had been served on his lawyer alone had prevented him from applying for summary proceedings within the time allowed. Summary trial undeniably offered certain advantages to the accused: if convicted, he would be given a considerably reduced sentence, and the prosecutor could not appeal against convictions that did not alter the legal classification of the offence. However, the Contracting States were not required by the Convention to provide for such simplified procedures. The application being inadmissible for the reasons set out below, the Court left open the question whether, where such procedures did exist, the principles of a fair trial meant not depriving a defendant arbitrarily of the possibility of requesting their application.

Attempts by the Italian authorities to notify the applicant of the date of the preliminary hearing had failed, as they did not have his address in Egypt. The police had only a telephone number in Egypt which he had left with a third party. The positive obligations linked to the notion of a fair trial did not require the State to effect a search abroad based on such a vague piece of information. As he had never denied delivering the fatal stab wound, the applicant should have expected an investigation to be opened. By leaving Italy without leaving a forwarding address, he had exposed himself to the risks resulting from the inability to serve him with documents concerning the preliminary investigations. In view of these particular circumstances, the authorities’ failure to contact the applicant at the Egyptian telephone number  a third party had supplied to the police and/or the refusal to reopen the time allowed for requesting a summary trial had not infringed the rights of the defence: manifestly ill-founded .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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