CEDH · CASELAW;CLIN;ENG — 8 juillet 2021

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Italy - 20903/15, 20973/15, 20980/15 et al. Judgment 8.7.2021 [Section I] Article 6 Criminal proceedings Article 6-1 Fair hearing Failure by Court of Appeal to order fresh hearing of accused before overturning their acquittal at first instance: violation Facts – The Court of Appeal omitted to order a fresh hearing of the applicants and of witnesses against them before (1) upholding the applicants’ conviction for aggravated fraud and also finding them guilty of criminal conspiracy, thereby overturning the judgment at first instance on that issue; and (2) overturning the acquittal at first instance of the applicant Ms Maestri. Law – Article 6 § 1: 1. Concerning applications nos. 20973/15, 20980/15 and 24505/15 – The first-instance court had convicted the six applicants of aggravated fraud after examining several witnesses and gathering other items of evidence, and had acquitted the applicants of criminal conspiracy. The Court of Appeal had upheld the conviction but had also found the applicants guilty of the offence of criminal conspiracy, overturning the first-instance judgment on that issue. In convicting the applicants of the offence of criminal conspiracy for the first time, the Court of Appeal had neither established the facts afresh nor given a new interpretation of the witness statements, but it had assessed the constituent elements of the offence in a different manner. The occurrence of the facts. The occurrence of the acts allegedly committed by the applicants had been established by the lower court on the basis of written evidence and witness statements, and this had resulted in their being convicted of fraud at first instance. The fact that the Court of Appeal had adopted a different legal characterisation of the facts already established by the lower court, reaching a different conclusion regarding the presence of the constituent elements of the offence of criminal conspiracy in addition to that of fraud, could not in itself invalidate that conclusion. In the Court’s view, it could not therefore be maintained that by failing to conduct a fresh hearing of the witnesses against the applicants, the Court of Appeal had restricted the applicants’ defence rights. Furthermore, the applicants had not produced any evidence to suggest that a fresh hearing of those witnesses would have been relevant for the assessment of the matters in issue. The Court now had to ascertain whether the issues raised before the Court of Appeal could indeed have been determined, as a matter of a fair trial, without a direct assessment of evidence given by the applicants in person. Firstly, with regard to the role of the Court of Appeal and the nature of the issues to be decided by it, that court had jurisdiction, in accordance with the Code of Criminal Procedure, to give a new judgment on the merits after examining the case as to the facts and the law and making a full assessment of the applicants’ guilt or innocence. Within the limits of the grounds of appeal submitted by the parties, it could decide either to uphold or to overturn the lower court’s verdict, where appropriate by taking new evidence. In addition, it could amend the legal characterisation of the facts and impose a harsher measure or type of sentence. Ordinary proceedings before the Court of Appeal were therefore governed by the same rules as a trial on the merits and were conducted by a court enjoying full jurisdiction. Furthermore, by amending the lower court’s verdict and determining the issue of the applicants’ guilt as regards the offence of criminal conspiracy, the Court of Appeal had also considered the applicants’ intentions and had ruled for the first time on subjective circumstances concerning them, holding in particular that notwithstanding their lack of legal knowledge, they could not have failed to realise that the companies’ activities were illegal. In the Court’s view, such an assessment, by virtue of its characteristics, implied taking a position on facts which were decisive for the determination of the applicants’ guilt. Where an inference drawn by the lower court related to subjective elements, it was not possible to perform a legal assessment of the accused’s conduct without having first sought to prove that the conduct had actually occurred, which necessarily entailed ascertaining the element of intent on the accused’s part in relation to the alleged acts. In view of the scope of the review carried out by the Court of Appeal and what had been at stake for the applicants, the issues to be decided by that court had called for a direct assessment of the defendants’ statements. The Court therefore had to establish whether the applicants had had an adequate opportunity in the present case to be heard and to put forward their own defence submissions in person before the Court of Appeal. The applicants, who had been present at the trial at first instance and had been represented by lawyers of their choosing, had decided not to attend the hearings in the Court of Appeal despite having been summoned to appear as defendants in accordance with the rules of procedure. Accordingly, they could be said to have unequivocally waived their right to take part in the hearings before the Court of Appeal. As to whether the applicants’ absence from the hearings, in addition to amounting to a waiver of the right to be present at the trial, had also constituted a waiver of their right to be heard by the appellate court, the fact that a defendant had waived the right to attend the hearing did not in itself release an appellate court that conducted a full assessment of guilt or innocence from its duty to carry out a direct assessment of the evidence given in person by the defendant where the latter wished to maintain his or her innocence and had not explicitly waived the right to address the court. In those circumstances, the judicial authorities had to take all positive measures needed to guarantee the examination of the defendant, even if the defendant had neither attended the hearing, nor asked for leave to address the appellate court nor objected through his or her counsel to that court giving judgment on the merits. In that regard, the Court of Cassation had been consistent with the above-mentioned principles in holding that the fact of being tried in absentia could not be interpreted as a waiver on the defendant’s part of the right to be heard by the appellate court, provided that the court had not ordered the examination of the defendant and scheduled a hearing for that purpose. Under Italian law, a summons to appear at the first hearing did not equate to an order to give evidence to the court. In that connection, the applicant in application no. 20903/15, although present at the hearing, had nevertheless not been examined by the Court of Appeal. Accordingly, the applicants could not be said to have explicitly waived their right to be heard by the Court of Appeal in the present case, given that, even under domestic law, such a waiver would have been possible only if they had been ordered to give evidence and had not consented to do so, or if they had not appeared at the hearing scheduled for that purpose. Furthermore, it appeared from the Government’s observations that it would have been open to the applicants to make spontaneous statements as a matter of their free choice, since defendants had the option of expressing themselves freely at any time without facing questions from the court or the other parties to the proceedings, in accordance with the right of the accused to remain silent and the privilege against self-incrimination. However, the Court was not convinced that the possibility for defendants to make such statements could satisfy the requirement for the court to examine defendants in person regarding facts and questions that were decisive for the determination of their guilt. It could not reasonably be maintained that in order to defend themselves, defendants should address the court on their own initiative and should choose to speak about facts in relation to which they had been acquitted at first instance. It was not in a defendant’s interests to ask the appellate court to reassess evidence relating to facts in respect of which he or she had been acquitted at first instance. It was for the appellate court to take positive measures to that end. In that connection, the Court of Cassation had held that an appellate court that was preparing to overturn an acquittal and, for that purpose, ordered the reopening of the judicial investigation and the hearing of witnesses (under the “ esame ” procedure) was also required to order the examination of the defendant in person where the latter’s statements were decisive. The Court of Appeal had been perfectly at liberty to reopen the judicial investigation and order an examination of the applicants in order to give them an adequate opportunity to express their position on matters such as the element of intent of the offence of criminal conspiracy, an issue of crucial importance in establishing whether they were guilty of that offence. However, as regards the argument put forward by the Court of Cassation that the fact that the defendant was the last person to address the court was sufficient, while an accused’s right to address the court last was certainly of importance, it could not be equated with his or her right to be heard by the court during the trial. Regard being had to the entirety of the proceedings, the role of the Court of Appeal and the nature of the issues to be determined, the fact that the applicants had been convicted of the offence of criminal conspiracy without having been given the opportunity, in the course of an examination ( esame ) by the Court of Appeal, to submit their arguments concerning facts that were decisive for establishing whether they were guilty was not, in the absence of a waiver on their part, compatible with the principle of a fair hearing within the meaning of Article   6 § 1. 2. Concerning application no.   20903/15 – Ms Maestri had been acquitted at first instance on all the charges against her. The court had held that the witness statements and other evidence in the file had shown that she had simply kept the companies’ accounts while following the administrators’ instructions and had therefore played no active role in the companies’ activity. The Court of Appeal had reversed the judgment given at first instance and had departed from the lower court’s opinion as to the interpretation of those statements. The Court of Appeal had found the applicant guilty after satisfying itself that the statements by M. and C., in particular, who had given a detailed description of the tasks carried out by the applicant, had shown that she had played a proactive role in the management of the companies. In the Court’s view, it was beyond doubt that the issues that the Court of Appeal had been required to determine before deciding to overturn the acquittal and to convict the applicant could not, as a matter of a fair trial, have been properly determined without a direct assessment of the evidence given by the prosecution witnesses M. and C., particularly in view of their probative value. Furthermore, although she had been present at her trial, the applicant had not been examined by the Court of Appeal and, like the other applicants, she had thus been denied the opportunity to put forward her own arguments on factual issues that were decisive for the assessment of her guilt. Accordingly, by not carrying out a fresh examination of the witnesses for the prosecution and of the applicant in person before overturning her acquittal at first instance, the Court of Appeal had significantly restricted her defence rights. The foregoing considerations were sufficient for the Court to conclude that, taken as a whole, the criminal proceedings against the applicant had been unfair. Conclusion : violation (unanimously). Article 41: EUR 6,500 to each applicant in respect of non-pecuniary damage. (See also Botten v. Norway , 16206/90, 19 February 1996, Legal summary ; Hermi v. Italy [GC], 18114/02, 18 October 2006, Legal summary ; Igual Coll v. Spain , 37496/04, 10 March 2009, Legal summary ; Júlíus Þór Sigurþórsson v. Iceland , 38797/17, 16 July 2019, Legal summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes