CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 novembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                              SUR LA RECEVABILITÉ                         Application No. 18666/91                         by René SALMON MENESES                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 30 November 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 3 June 1991 by René SALMON MENESES against Italy and registered on 13 August 1991 under file No. 18666/91;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Bolivian citizen, born in 1955 and residing in La Paz (Bolivia). Before the Commission he is represented by Mr. Paul Gully-Hart and Mr. Oreste Dominioni, lawyers practising respectively in Geneva and in Milan.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 7 August 1988 the Italian police arrested at the Milan airport customs a Panamanian citizen, C.M., with a suitcase containing in its false bottom two kilograms of cocaine.        C.M. agreed to collaborate with the police and the prosecution with a view to enabling them to arrest his accomplices in return for the promise of a significant reduction of sentence. He was accordingly authorised to continue to follow the instructions he had previously received from the drug dealers.        In the evening of 8 August 1988 the police arrested the applicant and two South Americans who were in his company.        The applicant, C.M. and the two South Americans were subsequently detained on remand on charges of drug trafficking.        Before the investigating judge, the applicant stated that, before leaving for a business trip, a friend in Panama had asked him to collect a suitcase and money in Milan. He had contacted C.M. at the telephone number which he had been given by his friend, and had later met C.M. in a hotel. He claimed that he did not know that the suitcase contained cocaine. As to the two South Americans, he stated that they had met on the airplane and they had shared the same hotel room as they had run out of money, and that he had wanted to help them.        On 13 December 1988 the applicant and his accomplices were committed for trial. The agreement between C.M. and the prosecution was fully disclosed and openly discussed with the applicant and his counsel.        By judgment of 28 February 1989, the Milan Court found the applicant guilty of drug trafficking, and sentenced him to twelve years' imprisonment. The two South American accomplices were sentenced respectively to twelve years' and twelve years' and two months' imprisonment. C.M. was   sentenced to six years' imprisonment. The Court took into account his effective cooperation with the police.        The Milan Court held that, after having agreed to collaborate, C.M. received two telephone calls from the applicant on 8 August 1988. The police did not record the conversations, which were conducted in Spanish, but C.M. repeated aloud, in the presence of the police and, on the second occasion also in the presence of an interpreter, what the applicant said. Thereafter, C.M. had met the applicant at a hotel where further details of the planned transaction had been discussed. When the applicant had left, C.M. had informed the policemen of the contents of their conversation. The applicant had called C.M. twice again.        The applicant lodged an appeal against this judgment. While claiming to be innocent, he challenged the credibility of C.M. alleging that the latter had only accused him in order to obtain a reduction of sentence and that his statements were contradictory.        On   5 December 1989 the Milan Court of Appeal confirmed the applicant's conviction, but reduced the sentence to seven years' imprisonment taking into account mitigating circumstances.        The Court of Appeal held that it was fully aware of the fact that C.M.'s decision to cooperate with the police had been determined mostly, if not entirely by the prospect of a reduction of sentence; nevertheless, after having meticulously examined C.M.'s declarations and proceeding from both the substantial corroboration - in particular the statements of the co-accused and the documentary evidence assembled - and its broad experience in dealing with drug trafficking, the Court came to the firm conclusion that C.M.'s   statements were convincing and that the applicant was guilty.        The applicant lodged an appeal on points of law against this judgment complaining of the failure to examine certain grounds of appeal, the lack of reasons concerning the aggravating and mitigating circumstances and of contradictions in evaluating the evidence.        By judgment of 3 December 1990/23 February 1991, the applicant's appeal on points of law was dismissed by the Court of Cassation.   COMPLAINTS        The applicant complains of his conviction and sentence and claims that he has been denied a fair trial. He also alleges an infringement of both the principle of presumption of innocence and the principle of equality of arms.        He complains in particular that his conviction was mainly based on the evidence of an accomplice, who had been granted a reduction of sentence in return for his collaboration with the judicial authorities, and that the judges disregarded all the contradictions in the accomplice's statements and did not deal with some of the objections raised by the applicant's defence.        He further challenges the validity of what he considers as telephone tapping used as evidence against him, namely that the police did not record the conversations between him and the accomplice, but simply asked the latter to repeat aloud to the police the statements he had made on the telephone. In the applicant's opinion, the police could not be sure of the contents of such conversations, which moreover were conducted in Spanish and, on one occasion, even in the absence of an interpreter.        The applicant raises the same complaint in connection with the accomplice's report to the police about the contents of the conversation he has had with him during the meeting at a hotel.        The applicant finally complains that the judges refused to hear a witness whose testimony, although not crucial, could have provided positive information of the applicant's character.        The applicant alleges a violation of Article 6 paras. 1, 2 and 3 d) of the Convention.   THE LAW   1.    The applicant complains of his conviction and sentence and also of the proceedings concerned.        The Commission first recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (cf. No. 13926/88, Dec. 4.10.90, D.R. 66 pp. 209, 225).        It is true that in the present case the applicant complains also that he was denied a fair hearing and in particular that the judges based themselves mainly on the testimony of an accomplice who had been granted a reduction of sentence in return for his cooperation with the judicial authorities; according to him, the judges allegedly disregarded the discrepancies in the accomplice's statements and ignored some points raised by his counsel. He also complains that the evidence against him which was based on the contents of the telephone conversations and the conversation at a meeting with C.M., was irregular and unlawful. Finally, he complains that he was refused to have a witness heard on his behalf who could have provided information about his character.        Article 6 (Art. 6), insofar as relevant, reads:        "1.    In the determination ... of any criminal charge against him,      everyone is entitled to a fair (...) hearing (...) by a (...)      tribunal (...).        2.     Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law.        3.     Everyone charged with a criminal offence has the following      minimum rights: (...)        (d) to examine or have examined witnesses against him and to      obtain the attendance and examination of witnesses on his behalf      under the same conditions as witnesses against him".        Even assuming that the applicant, in accordance with Article 26 (Art. 26) of the Convention, has complied with the condition as to the exhaustion of domestic remedies, namely that he had raised his complaints either in form or in substance before the Court of Appeal and the Court of Cassation, the Commission recalls that the requirements of paragraph 3 of Article 6 (Art. 6-3) represent particular aspects of the right to a fair trial guaranteed in paragraph 1. It will therefore examine the complaints from the point of view of these two provisions taken together (see Eur. Court H. R., Lüdi judgment of 15 June 1992, Series A, no. 238, p. 23, para. 43).        The Commission recalls that the question of the admissibility of evidence and of its probative value is primarily governed by the rules of domestic law, and as a general rule it is for the national courts and in particular the courts of first instance, to assess the evidence before them, as well as the evidence which the accused seeks to adduce (see Eur. Court H. R., Edwards judgment of 16 December 1992, Series A, no. 247-B, pp. 34-35, para. 34; Windisch judgment of 27 September 1990, Series A no. 186, p. 10, para. 25).        The Commission's task in the present case is therefore not to express a view as to whether the evidence against the applicant - in particular the testimony of the accomplice - was correctly admitted and assessed by the judges, but rather to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair (see, Eur. Court H.R., Saïdi judgment of 20 September 1993, Series A no. 261-C, p. 56 , para. 43).        In this context the Commission recalls that all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage of the proceedings (see the above mentioned Lüdi judgment, loc. cit. p. 21, para. 47; Eur. Court H.R., Isgró judgment of 19 February 1991, Series A no. 194-A, p. 12, para. 34; Eur. Court H.R., Saïdi judgment, loc. cit., p. 56, para. 43).        The Commission points out that the use at the trial of evidence obtained from an accomplice by granting him a reduction of sentence may put in question the fairness of the hearing granted to an accused person, and thus raise an issue under Article 6 para. 1 (Art. 6-1) of the Convention (No. 7306/75, Dec. 6.10.76, D.R. 7, p. 115).        However, the Commission notes that in the present case there are numerous elements in the proceedings as a whole, and concerning C.M.'s evidence in particular, that indicate that the applicant had a fair hearing.        In the first place the agreement between the accomplice and the prosecution was fully disclosed and openly discussed with the applicant and his counsel. The applicant had every opportunity, through his lawyer, to put questions directly to C.M. and to challenge his statements, thus providing the judges with all information which was capable of casting doubt on the witness' credibility. Moreover the Italian courts had examined the evidence before them thoroughly, and had come to the conclusion that the statements made by C.M. were corroborated by other evidence, such as the statements of the applicant's accomplices as well as documents found in the defendant's possession.        As regards the refusal to hear a witness, the Commission recalls that it is normally for the national courts to decide whether it is necessary or advisable to call a witness (see Eur. Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). There are exceptional circumstances which could prompt the Commission to conclude that the failure to hear a witness was contrary to Article 6 (Art. 6) of the Convention. However, the Commission considers that in the present case such circumstances do not exist.        The Commission finds therefore no appearance that the criminal proceedings against the applicant in respect of the administration of evidence or in any other aspect were unfair.        Finally, the Commission does not consider that any issue arises under Article 6 para. 2 (Art. 6-2) of the Convention.        It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously,        DECLARES THE APPLICATION INADMISSIBLE.        Secretary to the First Chamber     President of the First Chamber              (M. F. BUQUICCHIO)                      (A. WEITZEL)