Information Note on the Court’s case-law 29

April 2001

Priebke v. Italy (dec.) - 48799/99

Decision 5.4.2001 [Section II]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Expression of views by public prosecutor during trial: inadmissible

Participation by same presiding judge in decision concerning challenge to first instance judges and in decision on appeal on points of law: inadmissible

Article 3

In human treatment

Interrogation and placement in detention on remand of very elderly person: inadmissible

Article 6

Criminal proceedings

Article 6-2

Presumption of innocence

Influence of press campaign on judges: inadmissible

The applicant, a former Nazi officer, was in charge of the German police in Rome from 1943 onwards, under the authority of a colonel. After an attack by the Italian Resistance in which thirty-two German soldiers died, Hitler ordered the execution of ten It alian civilians for each of the German soldiers killed. When a further German soldier died from wounds sustained in the attack, the applicant’s superior decided on his own initiative to add ten persons of Jewish origin to the list of civilians to be put to death. The applicant supervised the execution, which took place at a site known as the Ardeatine Caves; three hundred and thirty-five civilians were killed there. After being imprisoned by the Allies at the end of the war, the applicant escaped and emigra ted to Argentina, where he remained until 1995. The colonel was brought before the Rome Military Court in 1948 along with five other officers, and was held responsible for the deaths of fifteen persons (the ten civilians of Jewish origin and five persons e xecuted “by mistake”) and sentenced to life imprisonment. The court held that the three hundred and twenty others had been executed as a direct consequence of an order from the Führer, which the accused might at the time have considered lawful and carried out without being aware that he was committing a crime. The five other officers against whom charges were brought were acquitted. The court found that they had acted on the order of a superior officer, that they could have been brought before a court marti al if they had disobeyed the order in any way and that they were unaware of the reasons why orders for the Ardeatine Caves execution had been issued. In 1994 the applicant gave an interview to a journalist in Argentina. In May 1994 the Rome public prosecut or’s office requested his arrest for aiding and abetting the murder of three hundred and thirty-five persons. The applicant was extradited in November 1995 and, on arriving in Italy, was questioned and detained pending trial. He was placed in solitary conf inement and was not allowed to receive visits from members of his family. In April 1996 he was committed for trial at the Rome Military Court. At one hearing the representative of the military prosecutor’s office took a firm stance in support of the Resist ance and described the SS as fanatical volunteers. On 1 August 1996 the Military Court decided that there was no case to answer and ordered the applicant’s immediate release. It held that that there were mitigating circumstances (the accused had acted on o rders and failure to obey them might have entailed serious consequences for him and his family) warranting the reduction of his sentence to thirty years; accordingly, prosecution for the offence he had committed had been statute-barred since 1966. (Since c rimes against humanity – which were not subject to limitation – had not existed in Italian legislation until 1967, the applicant could not have been convicted of an offence not defined by law at the time when it had been committed.) The judgment immediatel y gave rise to demonstrations, but the Minister of Justice told the protesters that since Germany had requested the applicant’s extradition, the decision to release him would not be enforced. On 3 August 1996 the Rome Court of Appeal confirmed the validity of the applicant’s arrest, noting that a German court had issued a warrant to that end, and ordered him to be detained pending extradition. In an order of 7 August 1996 the President of the Court of Appeal decided that all the applicant’s correspondence s hould be screened in advance so as to avoid any risk of his disclosing information that might hinder the extradition proceedings. It is alleged that the legal provision cited in the order was not relevant. On 16 August 1996 the German authorities requested the applicant’s extradition. On 15 October 1996 the Court of Cassation, presided over by Judge S., ruling on an appeal on points of law by the military prosecutor’s office, set aside the Military Court’s judgment on the ground that the trial judges had ac ted improperly in stating their opinions on the facts of the case. Pursuant to that judgment, the applicant was detained pending trial and, from 18 March 1997, made subject to a compulsory residence order. He made a number of unsuccessful applications agai nst the decision to detain him pending trial. While he was subject to the compulsory residence order, which remained in force at least until November 1998, he was allowed to receive visits from his lawyers and from one person a day (for example, members of his family) and to use the telephone. He was also examined several times by doctors of his choice, who certified that his state of health was incompatible with incarceration. He was tried a second time by the Military Court and on 22 July 1997 was convict ed and sentenced to fifteen years’ imprisonment with ten years’ remission. The court found that the applicant had occupied a senior position within the German command in Rome and had played a prominent role in the Ardeatine Caves killings. The applicant an d the military prosecutor appealed against that judgment. At a hearing the applicant requested the appearance of a witness whose father had been arrested in 1943 but released on the applicant’s orders. The Military Court of Appeal refused on the ground tha t it had already heard evidence in relation to the accused’s conduct during the war from a large number of witnesses. It did not find that there were any mitigating circumstances and on 7 March 1998 sentenced the applicant to life imprisonment. He appealed on points of law against that judgment, but his appeal was dismissed in a judgment of the First Division of the Court of Cassation, filed at the registry on 1 December 1998; the First Division was likewise presided over by Judge S. The applicant began to serve his sentence in prison. He then requested a stay of execution; that request was granted after experts had found that his state of health was satisfactory but might deteriorate if he was kept in prison. Accordingly, from February 1999 he served his se ntence at home. The trial had attracted considerable media attention; journalists and leading politicians delivered damning verdicts on the accused’s personality and criticised the judgment of 1 August 1996. The applicant brought libel actions against jour nalists who had called him an “executioner”. However, no action was taken on his complaints on the ground that the term appeared to be justified. Before the Court the applicant complained, inter alia , of the domestic courts’ lack of impartiality and independence, which in his opinion was illustrated by the fact that the same judge had presided over the division of the Court of Cassation that had ruled on the challenge against certain judges and the di vision that had examined his appeal on points of law. He argued, inter alia , that the various positions adopted by the military prosecutor’s office, such as its refusal to examine evidence in his favour and its decision to take no action on his libel alleg ations, offered further proof of the courts’ lack of impartiality and independence. He also criticised the intervention of the Minister of Justice and alleged that the press campaign surrounding the trial had influenced the judges concerned. He further com plained of the Military Court of Appeal’s refusal to hear evidence from a defence witness and of the overall length of the proceedings. In addition, he alleged that he had been subjected to inhuman and degrading treatment: in spite of his great age, he had been questioned at length on arriving in Italy and subsequently detained pending trial; restrictions had been imposed on him during his time in detention; and he had again been imprisoned, despite his age, following his conviction. Lastly, he maintained t hat the decision of 7 August 1996 to screen his correspondence amounted to a breach of Article 8.

Inadmissible under Article 6 § 1: (a) With regard to the applicant’s allegations concerning the Court of Cassation’s lack of impartiality and the national aut horities’ bias against him, there was no evidence to suggest that any doubt should be cast on the personal impartiality of the judges concerned. Furthermore, the guarantees of independence and impartiality enshrined in the Convention did not apply to the M inister of Justice or to the representative of the military prosecutor’s office – the latter being one of the parties to the court proceedings. In any event, the statements by the prosecutor’s office had merely referred to the values of the Resistance. Mor eover, the fact that a member of the executive had sought to defuse the demonstrations sparked off by the trial did not in itself constitute a violation of Article 6. There was therefore no objective basis for the applicant’s allegations that the national authorities had entertained preconceptions about his guilt. With regard to his subjective perception of the judges’ impartiality, his fears stemmed from the fact that the same judge had presided over the division of the Court of Cassation that had ruled on the challenge against the Military Court judges and the division that had considered his appeal on points of law. While such a state of affairs might give rise to doubts, whether or not they were justified depended on the specific facts of the case – in t his case, on the nature of the duties performed by the judge before he had examined the substance of the appeal on points of law. Whereas his task in examining a challenge against judges was to assess whether the judges concerned were in any way ineligible to deal with the case or had expressed particular opinions, when ruling on the outcome of a trial he had to determine whether the proceedings had complied with the law and whether the reasons given by the courts in question formed a sufficient basis for t he conviction. The fact that a Court of Cassation judge had already taken decisions, for example in connection with a challenge against a judge, at an earlier stage of the proceedings could not on its own be regarded as sufficient justification for any mis givings as to his impartiality. There was no reason to depart from that conclusion in the present case: manifestly ill-founded.

(b) With regard to the fact that no action was taken on the applicant’s complaints, the right of access to a court does not exte nd to the right to institute criminal proceedings against third persons or the right to secure a conviction: manifestly ill-founded.

(c) With regard to the press campaign and its influence on the fairness of the trial, the media interest had been generated by the extremely serious nature of the crime and the context in which it had been committed. Although epithets designed to make an impression on the public had been bandied about, the campaign had for the most part stuck to the reporting of objective fact s and public reaction. Harsh comments were inevitable in a sensitive case relating to tragic events and circumstances. In addition, the courts dealing with the case had been composed of professional judges who had been trained to disregard any insinuations that were extraneous to the trial. Lastly, the applicant had been convicted and sentenced following adversarial proceedings and there was nothing to suggest that the assessment of the evidence thus submitted to the judges had been influenced by the statem ents made in the press: manifestly ill-founded.

(d) The period to be taken into consideration in assessing the length of the proceedings had started on 21 November 1995, the date of the applicant’s extradition. No prior date could be considered, since when a person fled from a State governed by the rule of law, it could be presumed that he was not entitled to complain of the length of proceedings conducted during his absence unless he could show that there were sufficient grounds for rebutting that presumpt ion. There were no such grounds in the present case. By awaiting the applicant’s extradition before trying him, the Italian authorities had sought to enable him to take part in his own trial, in keeping with the spirit of Article 6. The proceedings had end ed on 1 December 1998 when the Court of Cassation’s judgment had been filed at the registry. They had therefore lasted three years and ten days, encompassing four tiers of jurisdiction – a period which, given the complex nature of the facts and the absence of any periods of inactivity on the courts’ part, was not unreasonable: manifestly ill-founded.

Inadmissible under Article 6 § 3 (d): The Convention did not afford an accused the unlimited right to obtain the attendance of witnesses. In order to prove tha t there had been a violation, the applicant would have had to adduce plausible evidence that the appearance of the witness in question was necessary for the establishment of the truth and that the refusal to examine him had constituted an infringement of d ue process. No such evidence had been adduced. In any event, the applicant’s generosity towards a particular person did not mean that he could not have been responsible for the killings: manifestly ill-founded.

Inadmissible under Article 3: (a) The treatme nt which the applicant complained that he had been subjected to on arriving in Italy did not reach the minimum level required to fall within the scope of Article 3. With regard to the restrictions imposed on him while he was deprived of his liberty, the co mplaints concerning his detention pending trial – which had ended on 18 March 1997 when a compulsory residence order had been issued against him – had been lodged out of time. Lastly, while he had been subject to the compulsory residence order, he had not been kept in isolation but had been allowed to receive visits – for example, from doctors monitoring his state of health – and to use the telephone. An overall assessment of the treatment complained of by the applicant revealed that it had not attained the minimum level required for a breach of Article 3: manifestly ill-founded.

(b) With regard to the enforcement of his sentence, although keeping a person aged over eighty-five in prison might raise an issue under the Convention, the applicant had spent no m ore than three months in prison and had been detained in standard conditions. In view of the short length of time involved, the applicant’s satisfactory state of health and the care taken by the Italian authorities in monitoring the situation, the treatmen t to which he had been subjected following his conviction had not attained the minimum level of severity required to fall within the scope of Article 3: manifestly ill-founded.

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

Click here for the Case-Law Information Notes