Европейский суд по правам человека
18 октября 2006 года
Facts
The applicant, Mr. Hermi, was a Tunisian national accused of drug trafficking. While he was in prison in Italy following his conviction he received a notice of appeal hearing in Italian. Mr. Hermi did not appear before the court and, contrary to the requests of Mr. Hermi’s lawyer who was present at the hearing, the court decided to hold the hearing without Mr. Hermi being present.
Complaint
Mr. Hermi complained that he had been unable to participate in the hearing and that he did not understand the language of the notice in violation of his right to fair trial.
Court's ruling
The Court noted that in the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial. But the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing. The manner of application of Article 6 to proceedings before courts of appeal depends on the special features of the proceedings involved. Where an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, it cannot determine the issue without a direct assessment of the evidence given in person by the accused.
Any person charged with a criminal offence has the right “to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him”. This provision does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, but points to the need for special attention to be paid to the notification of the “accusation” to the defendant.
The Court observed that 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 notice of the factual and legal basis of the charges against him. A defendant not familiar with the language used by the court may be at a practical disadvantage if the indictment is not translated into a language which he understands. Therefore an accused who cannot understand the language used in court has the right to the free assistance of an interpreter for the translation or interpretation of all those documents in the proceedings instituted against him which it is necessary for him to understand in order to have the benefit of a fair trial.
The defendant can waive some of his rights to fair trial, but this waiver then must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. Without other information it cannot be assumed only from the fact that the defendant has not appeared before the court that he wishes to waive his or her rights The national courts always have to ascertain whether the defendant actually was aware of the time and date of the hearing.
In the particular case Mr. Hermi had appealed mostly on the points of law, he was represented by two lawyers of his choosing and the court had no power to review new evidence or increase his sentence. His lawyers also failed to make a transfer request within the deadline set by law. In addition, the applicant himself never made such a request nor expressed any protest on the day of the hearing, therefore the appellate court could interpret this as implicit, but unequivocal waiver of the right to be present.
The Court considered that the applicant had sufficient command of Italian to grasp the meaning of the notice informing him of the date of the appeal court hearing, as he himself admitted that he speaks Italian and could understand the charges brought against him in the court of first instance. Therefore, there was no violation of the right to fair trial.