CEDH · CASELAW;CLIN;ENG — 27 juillet 2000

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Italy - 36732/97 Judgment 27.7.2000 [Section II] Article 6 Article 6-3-d Obtain attendance of witnesses Refusal of court to hear witness for the defence: no violation Facts : The applicant was convicted of murdering his wife. The time of death was estimated at between 11.30 am and 12.00 noon, in the applicant’s mistress’s apartment. The applicant stated that he had been absent from work between 10.00 am and 11.30 am, notably in order to deposit certain documents at the land registry. As regards the time spent at the land registry office, the applicant referred to a specific incident involving the person in front of him in the queue. He was unable to identify the person in question at that stage. His mistress stated that the applicant had murdered his wife and asked her to dispose of the body. Both were committed to the assizes to stand trial for premeditated homicide and for concealing the corpse. In the course of a hearing before the court the applicant requested, pursuant to Article   507 of the Code of Criminal Procedure, that the person in front of him at the land registry office, whom he had succeeded in identifying after a long search, be called as a witness for the defence. That person had written to the applicant’s legal representative to confirm the incident at the land registry office as described by the applicant during the investigation. the Assize Court refused the applicant’s request on the ground that in its view the examination of the person concerned was not “absolutely necessary” within the meaning of Article 507. A reconstruction of the crime showed that the applicant had sufficient time to commit the offence. The Assize Court considered, inter alia , that the applicant had not established that he had gone to the land registry office and sentenced him and his mistress to life imprisonment. The Assize Court further noted that other evidence established the applicant’s guilt, in particular the bruises and wounds on his hands and legs, which suggested a struggle with the deceased, the accusation made against him by his mistress and co-accused and the numerous telephone calls to her before and after the offence. The applicant lodged an appeal before the Assize Court of Appeal and challenged the refusal to call the defence witness referred to above. The Assize Court of Appeal upheld the judgment at first instance and held that the evidence against the applicant was sufficiently probative and consistent to preclude any validity being accorded to his alibi. The applicant’s cassation appeal was dismissed. Law : Article 6 § 1 and § 3 (d) – Under Italian law the accused, like the prosecution, must indicate before the trial commences the witnesses whom he wishes to be called. Since the applicant indicated the name of his defence witness only after the trial had commenced, the conditions for calling that witness were different from those applicable to the prosecution witnesses indicated in due time by the prosecution. The summoning of that defence witness was subject to the stricter rules laid down in Article 507 of the Code of Criminal Procedure, which provides that the court is not to summon a witness unless it considers the witness “absolutely necessary". The applicant did not challenge the legality of the refusal, but rather its appropriateness. Article 6 § 3 (d) does not require that every witness be summoned to give evidence, but refers to the principle of equality of arms. The applicant was able to present to the courts of first instance, appeal and cassation his arguments regarding the appropriateness of hearing evidence from that witness for the defence, and it is not for the Court to sanction any errors of fact or of law committed by the domestic courts if they do not constitute a breach of the rights guaranteed by Article 6. Since the fairness of the proceedings was not adversely affected by the decision to hear evidence from that witness, it cannot be inferred that there was a violation of the rights of the defence. As regards the alleged failure to state the reasons for refusing to summon the witness for the defence, in the light of the judgment of the Assize Court it is possible to understand why that court did not deem it necessary to summon the witness. Consequently, the brief information provided with the order refusing to summon the witness for the defence cannot constitute a violation of the rights of the defence, or in particular of the principle of equality of arms. As regards the investigations carried out, they concerned the way in which the applicant spent his time on the day of the offence and the possibility that he might have visited the scene of the crime. The applicant was able to apprise himself of the result of those investigations and to challenge the conclusions which the prosecution had drawn from them before the investigating court and the trial courts. The applicant has not adduced any evidence on which it might be concluded that the prosecution had knowingly intended to interfere with the fairness of the proceedings. In conclusion, the rights of the defence were not subject to any restriction which deprived the applicant of a fair trial. Conclusion : no violation (5 votes to 2).   © 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