CEDH · PRESS;GCJUDGMENTS;ENG — 18 octobre 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   609 18.10.2006   Press release issued by the Registrar   GRAND CHAMBER JUDGMENT HERMI v. ITALY   The European Court of Human Rights has today delivered at a public hearing its Grand Chamber judgment [1] in the case of Hermi v. Italy (application no. 18114/02).   The Court held, by 12 votes to five, that there had been no violation of Article 6 (right to a fair trial) of the European Convention on Human Rights.   (The judgment is available in English and French.)   1.     Principal facts   The applicant, Fausi Hermi, is a Tunisian national who was born in 1969. He is currently in Frosinone Prison (Italy).   The applicant was arrested in 1999 in possession of 485 grams of heroin and criminal proceedings were brought against him for drug trafficking. Hearings were held on 25 February 2000 and 24 March 2000, attended by the applicant and his lawyers, at which the applicant stated that he understood the charge against him and could speak Italian.   On 24 March 2000 the applicant was sentenced to six years’ imprisonment and a fine of about 20,658   euros   (EUR). The judge noted that the applicant had been in possession of the equivalent of 8,000 daily doses of heroin.   The applicant appealed against that judgment. The grounds given for his appeal were later specified as: the drugs in his possession had been for personal use, the way in which the legislation on drugs had been interpreted was unconstitutional and the expert chemical analysis of the drugs was null and void owing to procedural defects.   On 1 September 2000 the applicant and one of his lawyers were given two months notice of the date of the appeal hearing. The applicant had no contact with his lawyers between those dates.   At the hearing before Rome Court of Appeal on 3 November 2000 the applicant’s lawyer applied for his client to be allowed to attend. That application was dismissed on the ground that the applicant had not informed the court in advance of his wish to participate in the hearing (according to the Court of Cassation’s case-law, he was required to give five days notice). The Court of Appeal upheld the judgment of 24 March 2000. The applicant appealed unsuccessfully on points of law.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 31 March 2002 and declared partly admissible on 23 September 2004.   In its Chamber judgment of 28 June 2005, the Court held, by four votes to three, that there had been a violation of Article 6, because the applicant had been unable to take part in his appeal hearing.   On 23 September 2005 the Italian Government requested that the case be referred to the Grand Chamber under Article 43 [2] (referral to the Grand Chamber) and on 30 November 2005 the panel of the Grand Chamber accepted that request.   A hearing took place in public in the Human Rights Building, Strasbourg on 3 May 2006.   Judgment was given by the Grand Chamber of 17 judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Boštjan M. Zupančič (Slovenian), Riza Türmen (Turkish), Corneliu Bîrsan (Romanian), John Hedigan (Irish) András Baka (Hungarian), Vladimiro Zagrebelsky (Italian), Javier Borrego Borrego (Spanish), Alvina Gyulumyan (Armenian), Dean Spielmann (Luxemburger), Egbert Myjer (Netherlands), David Thór Björgvinsson (Icelandic), Danutė Jočienė (Lithuanian), Dragoljub Popović (Serbian), Ineta Ziemele (Latvian), judges , and also Lawrence Early , Section Registrar .             3.     Summary of the judgment [3]   Complaint   The applicant complained that he had not had a fair trial because he had been unable to take part in his appeal hearing. He relied on Article 6 of the Convention.   Decision of the Court   Article 6 The Court noted that Rome Court of Appeal was empowered to rule solely on those aspects of the decision referred to in the grounds of the applicant’s appeal.   In the Court’s view those grounds related essentially to the legal characterisation of the offence and to the interpretation of domestic legislation on drugs and the validity of expert reports. The fact that the applicant had been in possession of the drugs was not disputed at the appeal stage; he had been arrested red-handed and at no stage in the proceedings did he deny the factual basis for the charges against him. In particular, despite the applicant’s claim that the drugs found in his possession were for personal use, the domestic court noted that he had sufficient drugs in his possession to last an individual 20 years. The Court failed to see how the applicant’s presence at the appeal hearing could in any way have influenced the characterisation of the offence of drug trafficking which had formed the basis for his conviction.   The Court also noted that Rome Court of Appeal had no power to increase the applicant’s sentence; the court could uphold or reduce the applicant’s sentence or acquit him.   Lastly, the Court noted that (under the summary procedure which was requested by the applicant) the production of fresh evidence was ruled out in principle. The applicant had also consented to a decision being given on the sole basis of the evidence obtained by the authorities during the preliminary investigation. Accordingly, he knew, or should have known through his lawyers, that the appeal hearing would be confined in principle to hearing the arguments of the parties, without any evidence being produced or witnesses examined.   The Court concluded that, regard being had to the fact that the applicant participated in the earlier hearings and that those proceedings were of an adversarial nature, the requirements of a fair trial, as defined by the Convention, did not necessitate the presence of the applicant at the appeal hearing. That in itself was sufficient to conclude that there had been no violation of Article 6.   In any event, the Court observed that, even assuming that the applicant had a right under the Convention to appear at the appeal hearing, he had been informed of the date of that hearing and waived his right to appear. The domestic judicial authorities also had sufficient reason to conclude that the applicant had a good enough grasp of Italian to understand the notice giving warning of the hearing date and that it was not necessary to provide a translation or interpretation. At the hearings on 25 February and 24 March 2000 he had stated that he could speak Italian and that he had understood the content of the charge and the evidence against him. Also, at the time of the appeal proceedings, he had been living in Italy for at least ten years. Furthermore, the applicant did not appear to have informed the prison authorities of any difficulties in understanding the document in question. It was regrettable that the notice did not indicate that it was for the applicant to request, at least five days before the date of the hearing, that he be brought to the hearing room. However, the State could not be made responsible for spelling out in detail, at each step in the procedure, the defendant’s rights and entitlements. It was for the lawyers of the accused to inform their client as to the progress of the proceedings against him and the necessary steps to be taken. The applicant and his lawyer were given two months notice of the date of the appeal hearing. During that time, the applicant was not contacted by his lawyer, who would have known about the five-day rule.   The Court observed that a State could not be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes or chosen by the accused. The competent national authorities were required under Article 6 § 3 (c) to intervene only if a failure by legal aid counsel to provide effective representation was manifest or sufficiently brought to their attention in some other way. The applicant at no point alerted the authorities to any difficulties encountered in preparing his defence. Furthermore, in the Court’s view, the shortcomings of the applicant’s counsel were not manifest. The domestic authorities were therefore not obliged to intervene.   In addition, the Court noted that Rome Court of Appeal interpreted, in substance, the applicant’s omission to request his transfer to the hearing room as an unequivocal, albeit implicit, waiver on his part of the right to participate in the appeal hearing. In the particular circumstances of the applicant’s case, the Court considered that that was a reasonable and non-arbitrary conclusion.   Neither did the obligation on the applicant to make clear his wish to be brought to the hearing entail the completion of any particularly complex formalities. Moreover, the transfer of a prisoner called for security measures and needed to be arranged in advance. A strict deadline for submitting the request for transfer was therefore justified.   Also, there was nothing in the case file to indicate that, on the day of the hearing, when he realised that he was not going to be taken to the hearing room, the applicant protested to the prison authorities. Secondly, in their pleadings filed with the Court of Appeal a mere 11 days before the date of the hearing, the applicant’s lawyers did not request that the applicant be brought to the hearing room.   It is true that, at the appeal hearing, the applicant’s lawyer objected to the proceedings being continued in his client’s absence. However, that objection was made at a late stage and was not supported by any statement from the defendant himself.   The Court concluded that the Italian judicial authorities were entitled to conclude that the applicant had waived, tacitly but unequivocally, his right to appear at the hearing before the Rome Court of Appeal. Moreover, the applicant could have asserted that right without the need for excessive formalities. It followed that there had been no violation of Article 6.     Judges Rozakis, Spielmann, Myjer and Ziemele expressed a joint dissenting opinion and Judge Zupančič expressed a dissenting opinion, which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Grand Chamber judgments are final (Article 44 of the Convention). [2] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [3] This summary by the Registry does not bind the Court.