...

THE FACTS

The applicant, Mr Kalid Husain, is a Yemeni national who was born in 1936 and is currently detained in Parma Prison. He was represented before the Court by Mr G. Pagano, of the Genoa Bar.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  The applicant’s conviction in absentia

On 7 October 1985 the Achille Lauro, an Italian cruise liner, was attacked by a Palestinian terrorist commando. The passengers were held hostage for fifty-one hours and one of them was killed.

Suspected of being one of the organisers of the attack, the applicant was charged with forgery, handling stolen goods, unlawful possession of a firearm, kidnapping, murder and assault. He and fourteen other defendants were committed to stand trial in the Genoa Assize Court.

He was not officially informed of the criminal proceedings against him because the authorities were unable to trace him at the time of the trial. In his observations to the Court, the applicant alleged that he had left the Achille Lauro before the attack by the commando and had stayed in Egypt. The Italian authorities declared him a “fugitive” (latitante) and assigned a lawyer to represent him. He was tried in his absence.

In a judgment of 10 July 1986, the text of which was lodged with the registry on 27 October 1986, the Genoa Assize Court found the applicant guilty of handling stolen goods, forgery and unlawful possession of a firearm. It gave him a prison sentence of seven years and six months and imposed a 3,000,000 Italian lire fine. It acquitted him on the charges of kidnapping, murder and assault. It found, inter alia, that it had not been proved beyond all reasonable doubt that the applicant knew that the commando intended to hijack the vessel and kidnap the passengers.

On 6 December 1986 the Genoa public prosecutor’s office appealed against, inter alia, the applicant’s acquittal on some of the charges. It argued that, as a senior member of the terrorist organisation behind the attack, the applicant’s role could not have been confined to providing logistical support.

In a judgment of 23 May 1987, the text of which was lodged with the registry on 27 July 1987, the Genoa Criminal Court of Appeal granted the appeal and sentenced the applicant to life imprisonment.

On 10 May 1988 the judgment of 23 May 1987 became final as the lawyer assigned to represent the applicant had not lodged an appeal with the Court of Cassation.

On 16 March 1991 the Genoa Principal Public Prosecutor issued a warrant requiring the applicant’s committal to serve his sentence. The document, which was drafted in Italian, stated that the Genoa Criminal Court of Appeal’s judgment of 23 May 1987 sentencing the applicant to life imprisonment was unappealable. It then set out the operative provisions of the judgment and, in particular, the legal classification in law of the offences of which the applicant had been found guilty, with a reference to the relevant provisions of the Criminal Code and special legislation that was applicable. The Principal Public Prosecutor instructed all law-enforcement personnel to arrest the applicant. Since the applicant was not represented, the Principal Public Prosecutor assigned a lawyer to his case. A copy of the committal warrant was served on him.

2.  The applicant’s arrest and his appeal against the committal warrant

In the meantime, on 6 March 1991, the applicant had been arrested in Greece. On 24 May 1996 he was extradited to Italy. He was taken to the Genoa police headquarters (questura), where he was served with a copy of the committal warrant of 16 March 1991. An interpreter translated it into Arabic for him orally. The applicant and the interpreter signed a record of the proceedings at the police headquarters.

On 29 October 2001 the applicant lodged an application to have the committal warrant set aside. He alleged that it had been drafted in Italian and that he had not been provided with a written translation into Arabic, in breach of Article 6 § 3 (a) of the Convention, domestic law and the case-law of the Court of Cassation and the Constitutional Court. He stressed that, had he understood the document that had been served on him, he would definitely have taken the necessary steps to lodge an application for leave to appeal out of time under Article 175 of the Code of Criminal Procedure within the statutory ten-day time-limit. He would thereby have gained additional time in which to appeal to the Court of Cassation and an opportunity to answer the charges that had been preferred against him.

The Genoa Criminal Court of Appeal dismissed his application in an order of 4 December 2001. It observed that Article 143 of the Code of Criminal Procedure provided: “A person charged with a criminal offence who does not speak Italian is entitled to have the free assistance of an interpreter in order to understand the charge ... and the procedural steps to which he or she is a party ...” In its judgment no. 10 of 19 January 1993, the Constitutional Court had held that that provision had to be construed broadly, that is to say as applying in all cases in which, without the assistance of an interpreter, a foreign defendant’s right to take part in his or her trial would be compromised. However, the view expressed by the Court of Cassation in its case-law was that neither the Convention nor the Code of Criminal Procedure made it obligatory to provide a written translation of every document that was served on a foreign defendant. In the instant case, the committal warrant had been translated orally by an interpreter when it was served, and that was a sufficient basis for concluding that the applicant had understood its content.

The applicant appealed to the Court of Cassation, arguing that a written translation should have been supplied in his case, added to which the record drawn up at the police headquarters did not indicate the interpreter’s identity. It merely contained the signature of an unidentified person at the foot of the page.

In a judgment of 16 December 2002, which was lodged with the registry on 4 February 2003, the Court of Cassation found that the Criminal Court of Appeal had dealt with all the issues logically and correctly and dismissed the applicant’s appeal.

B.  Relevant domestic law

The relevant passages from Article 175 §§ 2 and 3 of the Code of Criminal Procedure provide:

“A person convicted in absentia ... may apply for leave to appeal out of time against the judgment if he is able to prove that he was not effectively notified [of the judgment] ... [and] on condition that there has been no negligence on his part or, if the judgment delivered in absentia has been served ... on his lawyer ..., that he has not deliberately refused to apprise himself of the steps taken in the proceedings.

An application for leave to appeal out of time must be lodged within ten days of the date ... on which the accused learned [of the judgment], failing which it shall be inadmissible.”

COMPLAINT

The applicant complained under Article 6 §§ 1 and 3 (a) and (b) of the Convention of the Genoa Criminal Court of Appeal’s decision of 4 December 2001 to dismiss his application to have the committal warrant set aside.

THE LAW

The applicant alleged that the dismissal of his application for an order setting aside the committal warrant of 16 March 1991 was unfair. He relied on Article 6 §§ 1 and 3 (a) and (b) of the Convention, the relevant parts of which provide:

“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;

(b)  to have adequate time and facilities for the preparation of his defence;

...

(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The applicant complained that the committal order that had been served on him was drafted solely in Italian and that he had thus been prevented from making an application for leave to appeal out of time within the statutory ten-day time-limit set out in Article 175 § 3 of the Code of Criminal Procedure. While it was true that the document had been orally translated into Arabic, he had just been transferred to Italy from a foreign prison and was in no condition to pay attention to the interpreter’s words or to understand their technical meaning. He stressed that he was unfamiliar with the complexities of the Italian legal system and had believed the committal warrant to be a list of offences and statutory provisions. Furthermore, there had been no control over the quality of the interpretation or the efficiency of the assistance given by the interpreter.

Firstly, the Court notes that, under the case-law of the Convention institutions, Article 6 § 1 does not apply to proceedings relating to the execution of a sentence (see Grava v. Italy (dec.), no. 43522/98, 5 December 2002; Aldrian v. Austria, no. 16266/90, Commission decision of 7 May 1990, Decisions and Reports (DR) 65, pp. 337, 342; and A.B. v. Switzerland, no. 20872/92, Commission decision of 22 February 1995, DR 80-B, pp. 66, 72). Service of a committal warrant would appear to relate to such proceedings. The applicability of Article 6 in the instant case is therefore open to doubt. However, the Court does not consider it necessary to examine this issue because, even assuming that Article 6 is applicable, the application is in any event inadmissible for the following reasons.

Since the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1, the Court will examine the applicant’s complaints under both provisions taken together (see, among many other authorities, Van Geyseghem v. Belgium [GC], no. 26103/95, § 27, ECHR 1999-I).

The Court notes that the applicant was not officially informed of the proceedings that had been brought against him, as he could not be traced when his trial took place. The service of the committal warrant on 16 March 1991 therefore not only provided information about his conviction by the Italian courts, it was also the first communication he had received from a public authority concerning the charges against him.

The Court observes that the provisions of paragraph 3 (a) of Article 6 point to the need for special attention to be paid to the notification of the “accusation” to the defendant. An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on written notice of the factual and legal basis of the charges against him (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, pp. 36-37, § 79). Article 6 § 3 (a) also affords the defendant the right to be informed not only of the cause of the accusation but also, in detail, of the legal characterisation given to those acts (see Pélissier and Sassi v. France [GC], no. 25444/94, § 51, ECHR 1999-II). While the extent of the “detailed” information referred to in this provision varies depending on the particular circumstances of each case, the accused must at any rate be provided with sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence. In this respect, the adequacy of the information must be assessed in relation to sub-paragraph (b) of paragraph 3 of Article 6, which confers on everyone the right to have adequate time and facilities for the preparation of their defence (ibid., § 54; see also Mattoccia v. Italy, no. 23969/94, § 60, ECHR 2000-IX, and D.C. v. Italy (dec.), no. 55990/00, 28 February 2002).

The Court further notes that the right set out in paragraph 3 (e) of Article 6 to the free assistance of an interpreter signifies that an accused who cannot understand or speak the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents or statements in the proceedings instituted against him that it is necessary for him to understand in order to have the benefit of a fair trial (see Luedicke, Belkacem and Koç v. Germany, judgment of 28 November 1978, Series A no. 29, p. 20, § 48). However, paragraph 3 (e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. In that connection, it should be noted that the text of the relevant provisions refers to an “interpreter”, not a “translator”. This suggests that oral linguistic assistance may satisfy the requirements of the Convention. The fact remains, however, that the interpretation assistance provided should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events. In view of the need for the right guaranteed by paragraph 3 (e) to be practical and effective, the obligation of the competent authorities is not limited to the appointment of an interpreter but, if they are put on notice in the particular circumstances, may also extend to a degree of subsequent control over the adequacy of the interpretation provided (see Kamasinski, cited above, p. 35, § 74).

In the present case the applicant received free assistance from an Arabic interpreter when the committal warrant was served on him. There is nothing in the case file to show that the interpreter’s translation was inaccurate or otherwise inadequate. Moreover, the applicant did not contest the quality of the translation, and this may have led the authorities to believe that he had understood the content of the document concerned (see, mutatis mutandis, Hermi v. Italy (dec.), no. 18114/02, 6 November 2003).

The committal warrant indicated the date of the conviction, the sentence that had been imposed, the legal classification of the offences of which the applicant had been found guilty and the references of the relevant provisions of the Criminal Code and of the special legislation that was applicable.

In these circumstances, the Court considers that the applicant received sufficient information concerning the charges and his conviction in a language he understood. The applicant was in Italy when the committal warrant was served on him and could have consulted the lawyer who had been assigned to his case, whose name was set out in the committal warrant, or another legal adviser for advice on the procedure for appealing against the Genoa Criminal Court of Appeal’s judgment and for preparing his defence to the charges (compare Sejdovic v. Italy (dec.), no. 56581/00, 11 September 2003).

Accordingly, the Court is unable to discern any violation of the right to a fair trial.

It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

HUSAIN v. ITALY DECISION


HUSAIN v. ITALY DECISION