Detention remedies must be capable of being supported in person by the detainee, which constitutes a fundamental guarantee of Article 5 par. 4. An appeal brought by a self-appointed lawyer as long as the defendant was a fugitive without his knowledge does not secure his right to appeal against his deprivation of liberty.

JUDGMENT

Rizzotto v. Italy no. 2 05.09.2019 (no. 20983/12)

see here 

SUMMARY 

The case concerned the lawfulness of a pre-trial detention order, and the procedural safeguards
secured under Article 5 § 4 (right to speedy review of the lawfulness of detention) of the
Convention.

The Court found that Mr Rizzotto had never had the opportunity in person to support his application
for release because a similar application had already been made without his knowledge by an
officially appointed lawyer. The Court reiterated that the primary fundamental guarantee flowing
from Article 5 § 4 of the Convention was the right to an effective hearing by the judge examining an
appeal against detention. It observed that the applicant had also had his application for a review of
the lawfulness of his detention rejected without being given a hearing.

The Court concluded that the Italian legal system had not provided the applicant with procedural
safeguards complying with Article 5 § 4 of the Convention.

PROVISION

Article 5 par. 4

PRINCIPAL FACTS

The applicant, Mr Salvatore Stefano Rizzotto, is an Italian national who was born in 1972 and lives in
Floridia.

On 16 September 2010 the Palermo investigating judge ordered the pre-trial detention of
Mr Rizzotto on account of his involvement in criminal proceedings for drug-trafficking. Since Mr
Rizzotto could not be found, the authorities deemed him to be a fugitive and appointed a lawyer to
represent him. On 13 October 2010 the lawyer appealed to the Palermo District Court against the
order for the applicant’s pre-trial detention, relying on Article 309 of the Code of Criminal
Procedure. The court dismissed the appeal.

On 6 December 2010 Mr Rizzotto was arrested in Malta. He appointed a lawyer of his own choosing.
The lawyer appealed against the pre-trial detention order. On 20 December 2010 Mr Rizzotto was
extradited to Italy and remanded in custody in Rome.

On 3 January 2011 a hearing was held in the Palermo District Court. Mr Rizzotto, who was still in
custody in Rome, did not attend and was represented by his lawyer. The court declared the appeal
inadmissible on the grounds that the applicant had already exercised his right of appeal in the form
of the appeal lodged by his officially appointed lawyer while he had been untraceable.

Mr Rizzotto appealed on points of law. The Court of Cassation dismissed the appeal, relying on the
“single appeal” principle, whereby an appeal lodged by counsel, whether chosen or officially appointed, on behalf of an accused who has absconded prevents the latter from personally lodging any further appeal or requesting an extension of the time allowed for appealing.

In the meantime Mr Rizzotto had applied to the Palermo preliminary investigations judge to set
aside the detention order and, in the alternative, to replace the order with a less restrictive
measure. The judge dismissed his application, and Mr Rizzotto did not appeal.

On 14 September 2011 the Palermo District Court sentenced Mr Rizzotto to two years and eight
months’ imprisonment and fined him 12,000 euros. On 20 July 2012 the applicant was released after
having served his sentence.

THE DECISION OF THE COURT

Article 5 § 4

The Court observed that the question arose as to whether the Italian legal system had afforded Mr
Rizzotto procedural safeguards complying with the requirements of Article 5 § 4 of the Convention.
First of all, it noted that Italian law did indeed offer the possibility of challenging the grounds for a
decision ordering deprivation of liberty, by means of an appeal under Article 309 of the Code of
Criminal Procedure. Nevertheless, it observed that the appeal lodged by the lawyer instructed by Mr
Rizzotto against the order by the sentence-execution judge had been declared inadmissible by the
special division of the Palermo District Court on the grounds that a similar application had already
been made by an officially appointed lawyer while Mr Rizzotto had been untraceable. However, as
the lawyer appointed by the authorities to represent Mr Rizzotto in the proceedings had decided to
appeal against the pre-trial detention order without the knowledge of Mr Rizzotto, who had been
untraceable, the Court found that it was beyond doubt that Mr Rizzotto had not had the opportunity
either to communicate with the officially appointed lawyer, or to put forward his own arguments in
support of the application for release, or to be heard by the court.

The Court observed that Mr Rizzotto had never had the opportunity in person to support the
application for release, despite the fact that this was the primary fundamental guarantee flowing
from Article 5 § 4. The remedy under Article 309 of the Code of Criminal Procedure had not afforded
the appropriate safeguards.

Secondly, the Court noted that Italian law offered the possibility, under Article 299 of the Code of
Criminal Procedure, of applying to set aside a detention order with a view to securing a review of the
lawfulness of ongoing detention. It nevertheless observed that the applicant had had his application
rejected without even being given a hearing. In accordance with Article 299, an application of this
kind did not require a hearing to be held, and the judge was not obliged to examine the accused
unless the latter requested a hearing, and only if he put forward new facts in support of his
application. In that connection, the Court emphasised again that a detainee’s right to a hearing
derived directly from the Convention and could not be made conditional on a specific request by the
detainee. In any event, since this was the first time Mr Rizzotto had sought to secure a review of the
lawfulness of his detention and no new facts had thus been submitted to the court’s scrutiny, a
request for a hearing would in any event have been declared inadmissible. That being so, the Court
found that an application to set aside the detention order had likewise not constituted a remedy
complying with Article 5 § 4 of the Convention in the circumstances of the case.

In view of all the above factors, in the specific situation where an untraceable accused had been the
subject of a detention order and an appeal had previously been lodged without his knowledge by an
officially appointed lawyer, the Court held that the procedure in Italy did not comply with the
provisions of Article 5 § 4.

Just satisfaction (Article 41)

The Court held that Italy was to pay the applicant 4,000 euros (EUR) in respect of non-pecuniary
damage and EUR 7,000 in respect of costs and expenses. echrcaselaw.com).


ECHRCaseLaw

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