12 Sep Legal remedy against a decision on deprivation of liberty for an untraceable person is not in accordance with the Convention

In the case of Rizzotto v. Italy (application no. 20983/12, 05.09.2019) the European Court of Human Rights held, unanimously, that there had been a violation of Article 5 § 4 (right to speedy review of the lawfulness of detention) of the European Convention on Human Rights. 

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. 

On 16 September 2010 the Palermo investigating judge ordered the pre-trial detention of Mr Rizzotto. 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. On 6 December 2010 Mr Rizzotto was arrested in Malta and he appointed a lawyer of his own choosing. The lawyer appealed against the pre-trial detention order. 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.

The Court 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, the Court 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 as well that the applicant had had his application rejected without even being given a hearing. 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. Thus, the Court concluded that the Italian legal system had not provided the applicant with procedural safeguards complying with Article 5 § 4 of the Convention.

References from the official website of the European Court of Human Rights