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CASE OF BROZICEK AGAINST ITALY

Doc ref: 10964/84 • ECHR ID: 001-55581

Document date: December 14, 1993

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CASE OF BROZICEK AGAINST ITALY

Doc ref: 10964/84 • ECHR ID: 001-55581

Document date: December 14, 1993

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgment of the European Court of Human

Rights in the Brozicek case delivered on 19 December 1989 and

transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application against

Italy lodged with the European Commission of Human Rights

on 7 May 1984 under Article 25 (art. 25) of the Convention

by Mr Georg Brozicek, a German national who complained that he

had not been informed, in a language which he understood, of the

nature and the cause of the criminal charges brought against him

and that, since he had been tried in absentia without having any

opportunity to defend himself, he had not had a fair trial;

Recalling that the case was brought before the Court by the

Commission on 11 May 1988;

Whereas in its judgment of 19 December 1989 the Court:

- dismissed by fifteen votes to five the objection of non-

exhaustion of domestic remedies as regards the possibility

of a "late appeal";

- dismissed unanimously the remainder of the said objection;

- held by fifteen votes to five that there had been a

violation of paragraphs 3.a and 1 of Article 6 (art. 6-3-a,

art. 6-1) of the Convention;

- held unanimously, as regards the non-pecuniary damage

sustained by the applicant, that the judgment constituted

in itself adequate just satisfaction for the purposes of

Article 50 (art. 50);

- held unanimously that the respondent State was to pay to

the applicant in respect of costs and expenses 4 027,27

Deutschmarks and 1 900 Swiss francs;

- dismissed unanimously the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of Italy to inform it of the

measures which had been taken in consequence of the judgment of

19 December 1989, having regard to its obligation under

Article 53 (art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Italy gave the Committee

information about the measures taken in consequence of the

judgment, which information appears in the appendix to this

resolution;

Having satisfied itself that the Government of Italy has

paid the applicant the sums provided for in the judgment of

19 December 1989,

Declares, after having taken note of the information

supplied by the Government of Italy, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH (93) 63

Information provided by the Government of Italy

during the examination of the Brozicek case

by the Committee of Ministers

The new Code of Criminal Procedure, which entered into force

on 24 October 1989, stipulates in Article 169, paragraph 3, that

the indictment shall be drafted in the language of the accused

if it does not appear from the file that the accused knows

Italian.

Article 183bis of the Code of Criminal Procedure, as

modified by Section 1 of Law No. 22 of 23 January 1989, has

reformed the Italian regulations in respect of restitution of

time ("restituzione nel termine") and anticipated the regulations

laid down in Article 175 of the new Code of Criminal Procedure

in such a manner as to align these regulations with the

requirements of the European Convention on Human Rights as

developed by the European Court of Human Rights. Article 183bis,

accordingly, lays down in its second paragraph that restitution

of time in order to appeal against an in absentia judgment may

be requested, not only in cases involving exceptional

circumstances or force majeure, but also when the accused can

produce evidence that he did not have effective knowledge of the

judgment in question. However, this right cannot be exercised

when the defence counsel has already submitted an appeal or when

it is his fault that the accused has not been able to gain

knowledge of the judgment or - following notification of the in

absentia judgment according to the procedure prescribed for

accused persons who are untraceable ("irreperibili") - when the

accused has voluntarily put himself in such a position as not to

be able to be notified of the proceedings.

Considering the aim and wording of the new regulations cited

above and the increased willingness demonstrated by the Italian

courts to take into account the requirements of the Convention

(see, inter alia, the judgment of the Court of Cassation, First

Criminal Section, of 12 May 1993 in the Medrano case), the

Italian Government is of the opinion that the Italian courts will

not fail to respect the principles laid down in the Brozicek

judgment.

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