CEDH · PRESS;GENERAL;ENG — 5 décembre 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     621   5.12.2002   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF CRAXI v. ITALY (no. 2)   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Craxi v. Italy (no. 2) (application no. 34896/97).   The Court held unanimously that ● there had been no violation of Article 6 §§ 1 (right to a fair hearing) and 3 (b) (right to adequate time and facilities for preparation of defence) of the European Convention on Human Rights on account of the rapid succession of hearings in the various sets of proceedings against the applicant; ● there had been a violation of Article 6 §§ 1 and 3 (d) (right to examine witnesses or have them examined) of the Convention in that it had been impossible to examine or have examined prosecution witnesses who had died or had exercised their right to remain silent; ● there had been no violation of Article 6 (right to a fair hearing) of the Convention on account of the press campaign against the applicant; and that ● the finding of a violation constituted in itself sufficient just satisfaction.   (The judgment is in French only.)   1.     Principal facts   Benedetto Craxi was an Italian national born in 1934. Better known by the name of Bettino Craxi, he was Secretary of the Italian Socialist Party and Prime Minister of Italy. He died in Tunisia in January 2000. His widow, Anna Maria Moncini Craxi, and two children, Stefania and Vittorio Craxi, indicated that they wished to pursue the proceedings.   Criminal proceedings were instituted against the applicant after serious irregularities were discovered in the negotiations relating to an agreement between the Eni and Montedison groups to form the Enimont company. In 1992 the applicant and numerous others were charged with false accounting, illegal funding of political parties, corruption, extortion and handling offences, all of which had been committed in particular at the time of the sale of Montedison’s shareholding to Enimont. In all, 26 notices of intention to commence criminal proceedings ( avvisi di garanzia ) were issued against him. The criminal proceedings against the applicant and other political, economic and establishment figures were reported in the press.   The applicant was committed for trial in the Milan District Court in six sets of proceedings, namely the Eni-Sai, Banco Ambrosiano, Enimont, Metropolitana Milanese, Cariplo and Enel cases. The applicant was convicted in all but the Cariplo case and given prison sentences of up to eight and a half years.   In the Eni-Sai case the applicant was prosecuted for corruption. He was accused of having influenced and facilitated a planned joint venture between three companies (including the Eni and Sai companies) belonging to the insurance sector. It was alleged that he and some of his co-defendants had illegally paid public officials and the directors of the above-mentioned companies 8,779,767 euros (EUR) and promised further payments of approximately EUR 1,549,370 and EUR 3,615,198.   According to his lawyers, the applicant did not attend the first hearing in this case on grounds of ill-health and danger to his personal safety. He did not attend any of the other 55 hearings between April and December 1994 because he moved to Tunisia on 16 May 1994. During the trial a number of his co-defendants stated that they wished to remain silent, so their statements were appended to the case file. Other defendants in connected proceedings were questioned at the trial and a transcript of the questioning was also appended to the case file.   In a judgment of 6 December 1994 the applicant was sentenced in absentia to five and a half years’ imprisonment. He appealed unsuccessfully against that judgment, challenging in particular the use of transcripts of statements by witness whom he had been unable to cross-examine. The Court of Cassation also dismissed an appeal by the applicant in a judgment of 12 November 1996, holding that his conviction had not been based exclusively on those statements since they had been corroborated by witness evidence.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 20   December 1996 and allocated to the First Section of the Court on 1 November 1998. It was declared partly admissible on 11 October 2001.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgian), President , Giovanni Bonello (Maltese), Peer Lorenzen (Danish), Nina Vajić (Croatian), Snejana Botoucharova (Bulgarian), Vladimiro Zagrebelsky (Italian), Elisabeth Steiner (Austrian), judges , and also Søren Nielsen , Deputy Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 6 §§ 1, 2 and 3 (b) and (d) of the Convention, the applicant complained of the unfairness of the criminal proceedings against him. He submitted that he had not had adequate time and facilities for the preparation of his defence and that he had been unable to cross-examine the prosecution witnesses or have them cross-examined. He further alleged that the press campaign conducted against him had influenced the judges determining the charges against him.   Decision of the Court   Article 6 §§ 1 and 3 (b)   The Court pointed out that the present application had been declared admissible solely as regards the alleged unfairness of the proceedings in the Eni-Sai case, and that its examination would consequently be limited to the difficulties encountered by the applicant in connection with that case.   The Court noted that from 18 October 1994 until the adoption of a judgment on the merits on 6 December 1994, hearings had been scheduled according to a timetable that had been agreed to by the applicant’s lawyers. The applicant could therefore not complain about proceedings that had been arranged with the consent of his counsel. As regards the period before 18   October 1994, the Court noted that thirty-eight hearings had been held in the Eni-Sai case, at the same or almost the same time as numerous hearings in other cases in which the applicant had been prosecuted.   The Court noted that the applicant, who had not attended the first hearing, had of his own accord left Italy and moved to Tunisia, thereby removing himself from the jurisdiction of a State that upheld the principle of the rule of law, and had freely chosen not to appear in court. The applicant’s defence had consequently been conducted by lawyers, who had had to take part in a large number of hearings within a short space of time. However, it did not appear from the evidence before the Court that their presentation of his case had been deficient or ineffective. Furthermore, the applicant’s lawyers had not provided the Court with any relevant explanation as to why they had not, until 9 November 1994, drawn the national authorities’ attention to the problems they were encountering in preparing his defence. Moreover, with regard to the proceedings on appeal, the applicant’s lawyers had not made any complaint that the hearings were so close together as to infringe the rights of the defence. The Court accordingly held that there had been no violation of Article 6 under that head.   Article 6 §§ 1 and 3 (d)   The Court noted at the outset that the witness statements by Pacini Battaglia, which had been read out during the trial at first instance because the witness was untraceable, had not contributed to the applicant’s conviction. The fact that it had been impossible to call that witness had not hindered the applicant’s right to examine or have examined witnesses against him. Furthermore, the applicant had not shown that it was necessary to call that witness in order to establish the truth or that the refusal to examine him had infringed the rights of the defence. The Court consequently held that it was not necessary to examine whether the witness had really been untraceable.   The Court further noted that Articles 238, 512 and 513 of the Code of Criminal Procedure had provided for the possibility, in determining the merits of a charge, of using statements made before the trial by co-defendants who had subsequently exercised their right to remain silent, or by persons who had died before having the opportunity to give evidence in court. However, that fact did not deprive an accused of the right to have any material evidence against him examined in adversarial proceedings. In the present case, the Court observed that it appeared from the Court of Cassation’s judgment of 12 November 1996 that the applicant had been convicted solely on the basis of statements made before the trial by other defendants who had chosen not to give evidence in court (Mr Cusani, Mr Molino and Mr Ligresti) and by a person who had subsequently died (Mr Cagliari). The applicant and his lawyers had not had the opportunity to cross-examine those witnesses and had consequently not been able to challenge the statements which had formed the legal basis for the applicant’s conviction.   In that connection, the Court noted that the applicant’s lawyers had not raised any objections in the Milan District Court contesting the lawfulness or advisability of appending the statements in issue to the case file. However, as the statements had been appended to the file in accordance with the relevant domestic legislation in force at the material time, the Court considered that any objection by the applicant would have had little prospect of success and that the failure to raise such an objection could not be construed as a tacit waiver of his right to have prosecution witnesses cross-examined, especially as he had subsequently raised the matter in the Court of Appeal and the Court of Cassation. The Court accordingly held that there had been a violation of Article 6 §§ 1 and 3 (d) under that head and that it was not necessary to examine whether Mr Cagliari and Mr Molino had been subjected to pressure by the authorities, as the two men in question – or their heirs – had not made any complaint to the Convention institutions on the matter.   Article 6   The Court observed that the interest of the media and the public in the Eni-Sai case had stemmed from the eminent position occupied by the applicant, the political context in which the alleged offences had taken place, and their nature and gravity. In the Court’s view, it was inevitable in a democratic society that the press should sometimes make harsh comments on a sensitive case such as the present one, which called into question the morality of high-ranking public officials and the relations between the political and business worlds. The Court further noted that the courts that had dealt with the applicant’s case had been composed exclusively of professional judges and that the applicant had been convicted following adversarial proceedings. Admittedly, the Court had found a breach of the requirements of a fair hearing in the case, but that had resulted from the judges’ application of legislative provisions that were general in scope and were applicable to everyone. There was nothing in the present case to suggest that the judges had been influenced by the statements made in the press.   As regards the argument that the prosecution had deliberately and systematically disclosed confidential information to the press, the Court noted that the applicant had not produced any evidence to substantiate those allegations. The Court had also taken into account the other circumstances relied on by the applicant, such as the allegedly exceptional scope of the proceedings in issue, the time that had passed since the relevant events, and the prospect of severe penalties being imposed, but had not found any appearance of an infringement of the rights of the defence. The Court accordingly held that there had been no violation of Article 6 under that head.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] .     This summary by the Registry does not bind the Court.