CEDH · CASELAW;CLIN;ENG — 5 décembre 2002

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Italie (no. 1) - 34896/97 Judgment 5.12.2002 [Section I] Article 6 Article 6-3-d Examination of witnesses Impossibility of examining prosecution witnesses who had died or had invoked their right to remain silent: violation Article 6-1 Fair hearing Effect of press campaign on judges in trial of politician: no violation Article 6-3-b Adequate facilities Adequate time Holding of hearings in different proceedings close together: no violation Facts : Numerous criminal proceedings were initiated against the applicant for breach of the legislation on the financing of political parties. They were widely covered by the media. The present judgment concerns one set of criminal proceedings initiated against the applicant for corruption in the Eni-Sai case. While that case was being investigated, certain of the applicant’s co-accused were questioned. In January 1994, the applicant and nine other persons were sent for trial before the Milan District Court. Between April and December 1994, fifty-five hearings were held.   At the hearings, the court granted leave to read out the incriminating statements made to the prosecution during the investigation by a co-accused who had committed suicide four days after making them.   hree of the applicant’s other co-accused relied on their right to remain silent and the court allowed the statements which they had made during the preliminary investigation to be read out. These statements, which tended to incriminate the applicant, were subsequently placed in the case-file and used in deciding the merits of the charge against the applicant. The record of the examination of another accused in related proceedings, Mr Battaglia, was placed in the case-file since, in spite of searches carried out in Italy and Switzerland, Mr Battaglia could not be traced. By judgment of December 1994, the Milan District Court sentenced the applicant (who in the meantime had settled in Tunisia) in absentia to a term of imprisonment of five years and six months. The Court of Appeal upheld the judgment at first instance in respect of the applicant. The Court of Cassation dismissed the applicant’s appeal on a point of law. Law :Articles 6 § 1 and 6 § 3 (b)   – At first instance, the applicant’s lawyers were required to take part in a very large number of hearings within a short time. However, there is nothing in the case-file to indicate that the defence which they provided was wanting or in any way ineffective. On the contrary, the witnesses for the prosecution who agreed to give evidence were cross-examined at the public hearings by the applicant’s lawyers, who, moreover, at the various stages of the proceedings, submitted arguments based on fact and on law to challenge the credibility of the prosecution witnesses. Nor have the applicant’s lawyers provided the Court with any proper explanation why they failed at the appropriate time to draw the national authorities’ attention to the difficulties which they encountered in preparing the defence. Furthermore, as regards the proceedings on appeal, the applicant’s lawyers have not indicated that the dates of the hearings were so very close together as possibly to have an adverse effect on the rights of the defence. Conclusion : no violation (unanimously). Articles 6 § 1 and 6 § 3 (d) – a. Mr Battaglia’s statements did not form part of the basis on which the applicant was convicted and, accordingly, the fact that he could not be produced in court did not infringe the applicant’s right to examine or have examined the witnesses for the prosecution. Furthermore, in so far as the applicant claims that Mr Battaglia was a witness for the defence, he has not shown that the production of that witness was necessary to establish the truth or that the refusal to examine him infringed the rights of the defence.   The Court was not therefore required to adjudicate on whether it was in fact impossible to find Mr Battaglia or whether he could easily have been found. b. As regards the impossibility of cross-examining certain of the applicant’s co-accused who had made statements during the investigation, the law of the respondent State allowed the court, in deciding the merits of the charges, to use statements made before the hearing by co-accused who now relied on the right to remain silent or by persons who had died before they could give evidence. However, that fact cannot deprive the accused of his right under Article   6 § 3 (d) to examine or have examined any substantial incriminating evidence. The national courts convicted the applicant on the sole basis of the statements made before the trial by co-accused who refused to give evidence and by a person who had subsequently died. Neither the applicant nor his legal representative had an opportunity at any stage in the proceedings to examine those persons who, having made statements used as evidence by the Italian courts, had to be regarded as “witnesses” for the purposes of Article 6 § 3 (d) of the Convention.   The applicant was therefore not given a proper and sufficient opportunity to challenge the statements forming the legal basis of his conviction. c. During the hearings before the Milan District Court, the applicant’s lawyers did not raise any objections as to the illegality or inappropriateness of placing statements in the case-file which had been made by other accused whom they had been unable to examine. However, those statements were placed in the case-file in accordance with the relevant domestic law, which required the court to order the statements in question to be read out and placed in the case-file when they could not be repeated or when the person who had made the statement exercised the right to remain silent. Accordingly, any objection which the applicant might have made would have had little prospect of success and the fact that no formal objection was made during the hearing before the court cannot be interpreted as a tacit waiver of the right to examine or have examined the witnesses against the applicant. That conclusion finds further support in the fact that the applicant complained in his appeal and in his appeal on a point of law of the use of statements by persons to whom he had not had the opportunity to put questions, thus demonstrating his desire to assert, at domestic level, the right recognised by Article 6 § 3 (d) of the Convention. Conclusion : violation (unanimously). Article 6 (fair hearing) – It is inevitable in a democratic society that the press should express what are sometimes harsh comments on a sensitive case which, like the applicant’s, called in question the morality of senior officials and the relations between politics and business. Furthermore, the courts dealing with the matter were composed entirely of professional judges, who, unlike the members of a jury, have the experience and training to disregard any suggestion extraneous to the proceedings. In addition, the applicant’s conviction was pronounced after adversarial procedure.   The Court has, it is true, found that that procedure entailed a violation of Article 6 § 1 and   § 3 (d) of the Convention; however, in the present case such a breach of the requirements of a fair trial was due to the courts’ applying legislative provisions of general scope applicable to all those appearing before them. There is nothing in the case-file to indicate that, in interpreting national law or in assessing the parties’ arguments and the evidence against the applicant, the judges who adjudicated on the merits were influenced by what was said in the press. Nor has the applicant adduced any evidence implicating the prosecution officials or suggesting that they neglected their duty with the purpose of harming the applicant’s public image. Conclusion : no violation (unanimously). Article 41 – The Court considers that the finding of a violation constitutes in itself adequate just satisfaction for any pecuniary or non-pecuniary damage suffered by the applicant.   © 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