CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23369/94                       by Luigi SACRAMATI                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 6 September 1995, the following members being present:              Present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 5 June 1993 by Luigi SACRAMATI against Italy and registered on 1 February 1994 under file No. 23369/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Italian national, born in 1950 in Terni, worker by profession. He is currently detained in Rovigo.        The facts of the case, as submitted by the applicant, may be summarised as follows.        In connection with criminal proceedings against F.F., charged with drug trafficking, the Bologna police obtained information that the applicant and several other persons were also involved in drug trafficking. Telephone tappings were subsequently carried out, and a large quantity of heroin was seized. On the occasion of the search of one of the accused's apartment, certain relevant documents were seized.        F.F. agreed with the police and the judicial authorities that he would collaborate with a view to enabling them to prosecute his former accomplices, amongst whom the applicant, in return for certain benefits for himself (a reduction of sentence) and his family.        Pursuant to the Bologna Public Prosecutor's request, on 15 January 1990 the Bologna investigating judge issued a warrant of arrest against the applicant, on charges of drug trafficking. The nine charges listed in the seven-page long warrant of arrest related to numerous acts presumably committed by the applicant together with eight coaccused in the provinces of Ferrara, Verona, Rovigo, and Bologna, between November 1982 and January 1989.        On 17 January 1990, the applicant was arrested by the Padua police. On that occasion, he was notified a copy of the warrant of arrest and was invited to appoint a lawyer for his defence, which he did. He was then imprisoned in Bologna.        The applicant lodged an appeal ("richiesta di riesame") before the Bologna Court against the warrant of arrest; this appeal was rejected by decision of 29 January 1990.        On 9 July 1990, the applicant was committed for trial before the Bologna Court together with 107 coaccused, on charges of drug trafficking.        At the hearing of 9 May 1991, F.F. appeared before the court and was interrogated by the Public Prosecutor and by the defence lawyers.        By judgment of 10 June 1991, the Bologna Court found the applicant guilty of all charges and sentenced him to 22 years' imprisonment.        The applicant lodged an appeal against this judgment. He challenged the credibility of F.F., claiming that the latter had only accused him in order to obtain benefits for himself and his family; he further asked the reopening of the trial in order to hear certain witnesses on his behalf.        By judgment of 10 June 1992, the Bologna Court of Appeal rejected the applicant's request to reopen the trial, as it considered the grounds for the request irrelevant; it acquitted the applicant in relation to one of the charges for lack of evidence. It reexamined F.F.'s statements and, proceeding from the substantial corroboration - in particular the statements of several coaccused - came to the firm conclusion that F.F. was totally reliable ("intrinsecamente attendibile") and his testimony fully credible and consistent ("pienamente credibile", "coerente e mai contraddittoria"). It subsequently confirmed the remainder of the judgment, and reduced the sentence to 16 years and two months' imprisonment.        The applicant lodged an appeal on points of law against this judgment, mainly challenging the assessment of evidence by the lower court.        By judgment of 20 May 1993, filed in the Registry on 26 August 1993, the applicant's appeal on points of law was dismissed by the Court of Cassation.   COMPLAINTS   1.    The applicant complains of his conviction and sentence, and claims that he has been denied a fair trial.        In particular, he maintains that he was not informed in detail of the charges against him, that his conviction was mainly based on the evidence of an accomplice, that the judges incorrectly assessed the evidence before them and that they refused to hear certain witnesses on his behalf.        He alleges a violation of Article 6 paras. 1 , 3 (a) and 3 (d) of the Convention.   2.    The applicant further complains of the length of his detention, contrary to Article 5 para. 3 of the Convention.   THE LAW   1.    The applicant complains of his conviction and sentence and also of the proceedings concerned.        The Commission first recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers to its established case-law (cf., e.g., No. 13926/88, Dec. 4.10.90, D.R. 66 pp. 209, 225; No. 21283/93, Dec. 5.4.94, D.R. 77-A pp. 81, 82 and 88).        It is true that in the present case the applicant complains also that he was denied a fair hearing and in particular that he was not informed in detail of the nature of the charges against him, that the judges based themselves mainly on the testimony of an accomplice and incorrectly assessed the evidence before them, and that he was refused to have certain witnesses heard on his behalf.        Article 6 (Art. 6), in so far as relevant, reads:        "1.    In the determination ... of any criminal charge against him,      everyone is entitled to a fair (...) hearing (...) by a (...)      tribunal (...).        3.     Everyone charged with a criminal offence has the following      minimum rights: (...)        (a) to be informed promptly, in a language which he understands      and in detail, of the nature and cause of the accusation against      him;   (...)        (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf    under the same conditions as witnesses against him".        Even assuming that the applicant, in accordance with Article 26 (Art. 26) of the Convention, has complied with the condition as to the exhaustion of domestic remedies, namely that he had raised his complaints either in form or in substance before the Court of Appeal and the Court of Cassation, the Commission recalls that the requirements of paragraph 3 of Article 6 (Art. 6-3) represent particular aspects of the right to a fair trial guaranteed in paragraph 1. It will therefore examine the complaints from the point of view of these two provisions taken together (see Eur. Court H. R., Lüdi judgment of 15 June 1992, Series A, no. 238, p. 23, para. 43).   a)    The applicant submits that he was not informed in detail about the charges against him.        The Commission and the Court have stressed that Article 6 para. 3 (a) (Art. 6-3-a) of the Convention is of fundamental importance in preparing the defence and that its scope must be understood in relation to Article 6 para. 3 (b) (Art. 6-3-b), which guarantees everyone the right to have adequate time and facilities for the preparation of his defence and in the light of the more general right to a fair trial secured by Article 6 para. 1 (Art. 6-1) of the Convention (cf. Gea Catalan v. Spain, Comm. Report 30.11.93, para. 28, to be published in Eur Court H.R., Series A no. 309).        The Commission recalls that pursuant to Article 6 para. 3 (a) (Art. 6-3-a) of the Convention, the accused is entitled to be informed of the cause of the accusation, i.e. the material facts alleged against him which are at the basis of the accusation, and of the nature of the accusation, i.e. the legal qualification of these material facts. The "detailed" information referred to in this provision should contain the material enabling the accused to prepare his defence, without however necessarily mentioning the evidence on which the charges are based (No. 7628/76, dec. 9.5.77, D.R. 9 p. 173).        In the present case, the Commission observes that the applicant's warrant of arrest was seven pages long, and that the nine charges contained therein described the single episodes, the relevant period of time and the place where they had supposedly taken place. Reference was made to Articles 71, 74, 81, 110 and 118 of the Italian criminal code, and the legal qualification of the facts was clearly indicated.        In the Commission's opinion, the applicant was thus sufficiently informed of the accusations laid against him to prepare his defence.   b)    The applicant further submits that the judges based themselves mainly on the testimony of an accomplice, that the assessment of evidence made throughout the proceedings was arbitrary and erroneous and that he was refused the right to have certain witnesses heard on his behalf.        The Commission recalls that the question of the admissibility of evidence and of its probative value is primarily governed by the rules of domestic law, and as a general rule it is for the national courts and in particular the courts of first instance, to assess the evidence before them, as well as the evidence which the accused seeks to adduce (see Eur. Court H. R., Edwards judgment of 16 December 1992, Series A, no. 247-B, pp. 34-35, para. 34; Windisch judgement of 27 September 1990, Series A no. 186, p. 10, para. 25).        The Commission's task in the present case is therefore not to express a view as to whether the evidence against the applicant was correctly admitted and assessed by the judges, but rather to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see, Eur. Court H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C, p. 56 , para. 43).        In this context the Commission recalls that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule paragraphs 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage of the proceedings (see the above mentioned Lüdi judgment, loc. cit. p. 21, para. 47; Eur. Court H.R., Isgró judgment of 19 February 1991, Series A no. 194-A, p. 12, para. 34; Eur. Court H.R., Saïdi judgment, loc. cit., p. 56, para. 43).        The Commission points out that the use at the trial of evidence obtained from an accomplice by granting him a reduction of sentence may put in question the fairness of the hearing granted to an accused person, and thus raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention (No. 7306/75, Dec. 6.10.76, D.R. 7, p. 115).        However, the Commission notes that in the present case the applicant had every opportunity, through his lawyer, to put questions directly to his former accomplice and to challenge his statements, thus providing the judges with all information which was capable of casting doubt on the witness' credibility. Moreover the Italian courts had examined the evidence before them thoroughly, and had come to the conclusion that the statements made by F.F. were convincing and corroborated by other evidence, namely by numerous statements of the applicant's other accomplices, but also by certain telephone tappings, the seizure of a large quantity of heroin as well as documents found in one of the accomplices' possession.        The Court of Cassation analyzed thoroughly and in detail all of the applicant's complaints, addressing the issue of the assessment of evidence by the lower courts and concluding that the latter had not overstepped the limits of appreciation of evidence or established facts in an arbitrary manner.        The Commission does not find these conclusions arbitrary or otherwise unfair.        As regards the alleged refusal to hear certain witnesses, the Commission recalls that it is normally for the national courts to decide whether it is necessary or advisable to call a witness (see Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). There are exceptional circumstances which could prompt the Commission to conclude that the failure to hear a witness was contrary to Article 6 (Art. 6) of the Convention. However, the Commission notes that the applicant has failed to give any information on the identity of the witnesses, and in particular to state in what way such witnesses could have supported his defence.        In conclusion, the Commission considers that the proceedings as a whole do not disclose that the applicant was deprived of a fair hearing within the meaning of Article 6 (Art. 6) of the Convention, in respect of the administration of evidence or in any other aspect.        It follows that the application in this respect is manifestly ill-founded and must be rejected in pursuance of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant further complains under Article 5 para. 3 (Art. 5-3) of the Convention, of the length of his detention. He maintains that his detention on remand lasted three years and four months, namely from the date of his arrest (17 January 1990) to the day when his conviction became final (20 May 1993).        Article 5 (Art. 5) of the Convention, in so far as relevant, provides as follows:        "1.    Everyone has the right to liberty and security of      person. No one shall be deprived of his liberty save in the      following cases and in accordance with a procedure      prescribed by law:        a.     the lawful detention of a person following conviction      by a competent court;        (...)        c.     the lawful arrest or detention of a person, effected      for the purpose of bringing him before the competent legal      authority on reasonable suspicion of having committed an      offence or when it is reasonably considered necessary to      prevent his committing an offence or fleeing after having      done so.        (...)        3.     Everyone arrested or detained in accordance with the      provisions of paragraph 1.c of this Article shall be      brought promptly before a judge or other officer authorised      by law to exercise judicial power and shall be entitled to      trial within a reasonable time or to release pending trial.      Release may be conditioned to guarantees to appear for      trial."   (a)   In so far as the applicant's detention prior to his conviction and sentence by the Bologna Court judgment of 10 June 1991 is concerned, the Commission is not required to decide whether or not this part of the complaint discloses any appearance of a violation of the Convention, as it is inadmissible for the following reasons.        The Commission recalls that, pursuant to Article 26 (Art. 26) of the Convention, it can only deal with a matter within a period of six months from the date in which the final decision was taken.        It notes that the applicant's detention on remand ended on 10 June 1991 with his conviction by the Bologna Court, which is more than six months before the date when the present application was filed with the Commission.        It follows that this part of the complaint has been lodged out of time and must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   (b)   In so far as the applicant's detention after 10 June 1991 is concerned, the Commission recalls that Article 5 para. 3 (Art. 5-3) of the Convention relates exclusively to the category of detainees mentioned in the first paragraph under (c), namely remand detainees.        It further observes that by judgment of the Bologna Court on this date, the applicant was convicted of drug trafficking and sentenced to 22 years of imprisonment; therefore, after this date even if the applicant continued to be considered as a remand prisoner under domestic law, for the purposes of Article 5 para. 3 (Art. 5-3) of the Convention his detention comes under Article 5 para. 1 (a) (Art. 5-1- a), which authorises the lawful detention of a person after conviction by a competent court (cf. Eur Court H.R., Wemhoff judgment of 27 June 1968, Series A no.7, p. 23 para. 9; No. 20253/92, G.P. c. Italy, dec. 6.4.95, unpublished).        It follows that the remainder of the complaint is manifestly ill- founded and must be rejected pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber       (M.F. BUQUICCHIO)                          (C.L. ROZAKIS)