CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 27 février 2001

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s24256A0F { margin-top:0pt; margin-bottom:0pt; text-indent:11.5pt; text-align:justify } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     133   27.2.2001   Press release issued by the Registrar   JUDGMENT IN THE CASE OF LUCÀ v. ITALY     The European Court of Human Rights has today notified in writing [1] judgment in the case of Lucà v. Italy. The Court held unanimously that there had been a violation of Article   6 §§ 1 and 3(d) (right to a fair trial) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 18,000,000 Italian lire (ITL) for non-pecuniary damage and for legal costs and expenses.   1.     Principal facts   The applicant, Nicola Lucà, an Italian national, was born in 1955 and is currently detained in Cosenza Prison.   On 7 March 1994 Locri Criminal Court sentenced the applicant to eight years and four months’ imprisonment for drug-trafficking. His conviction, which was upheld by the court of appeal in November 1994 and by the Court of Cassation in November 1995 was based solely on statements made to the public prosecutor during the investigations by a co-accused in connected proceedings.   Despite the fact that neither the applicant nor his representative were ever given an opportunity to examine the maker of the statements, either at the trial (the co-accused exercising his right to remain silent in accordance with Article 210 of the Italian Code of Criminal Procedure), or at any other stage of the proceedings, the statements were nonetheless admitted in evidence and formed the main basis for the applicant’s conviction. Article 513 of the Code of Criminal Procedure, as worded at the material time and construed by the Italian Constitutional Court in its judgment no. 254 of 1992 (which contained no references to the guarantees of a fair trial set out in Article 6 of the Convention or to the criteria established by the Court’s case-law in that connection) enabled the trial court to use statements made by a co-accused in connected proceedings where the co-accused had exercised his right to remain silent and refused to repeat them at the hearing, even if the person against whom the statements were apt to be used had been given no opportunity of examining the maker at any stage in the proceedings.   In that connection, the Court referred to the amendment of Article 111 of the Italian Constitution that had been adopted after the events in issue. It noted that by virtue of Law no.   35 of 25 February 2000, which set out the extent to which the amended Article 111 of the Constitution applied to pending proceedings, the former rules continued under certain circumstances to apply to such proceedings. It also noted that under the law implementing the constitutional amendment adopted by Parliament on 14 February 2001, the former rules continued to apply at least in some cases to trials that were under way. It was of course to be remembered that the points highlighted by the Court did not constitute an exhaustive list of all the circumstances in which the former rules would continue to apply after the constitutional amendment.   2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights. Under the transitional provisions of Protocol No. 11 to the Convention, the case was transmitted to the Grand Chamber of the Court on 1 November 1998. The case was assigned to the first Section of the Court and declared admissible on 9 March 1999. Judgment was given by a Chamber of seven judges, composed as follows:   Elisabeth Palm (Swedish), President , Wilhelmina Thomassen (Dutch), Benedetto Conforti (Italian), Gaukur Jörundsson (Icelandic), Corneliu Bîrsan (Romanian), Josep Casadevall (Andorran), Boštjan Zupančič (Slovenian), judges ,   and also Michael O’Boyle , Section Registrar .   3.     Summary of the judgment [2]   Complaint   The applicant complained of a breach of his right to a fair trial, including his right to examine or have examined any witness against him, guaranteed by Article 6 §§ 1 and 3(d) of the European Convention on Human Rights. He alleged that he had been convicted on the basis of statements made to the public prosecutor by a co-accused in connected proceedings, without having been given an opportunity to examine the co-accused or to have him examined.   Decision of the Court   Article 6 § 1 and 3(d)   The Court reiterated that the admissibility of evidence was primarily a matter for regulation by national law and as a general rule it was for the national courts to assess the evidence before them. The Court’s task under the Convention was to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.   As a general rule, paragraphs 1 and 3(d) of Article 6 required that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he made his statement or at a later stage. In that regard, the fact that the depositions had been made, as here, by a co-accused rather than by a witness was of no relevance, since the term “witness” had an “autonomous” meaning in the Convention system. Thus, where a deposition could serve to a material degree as the basis for a conviction, then, irrespective of whether it had been made by a witness in the strict sense or by a co-accused, it constituted evidence for the prosecution to which the guarantees provided by Article 6 §§ 1 and 3(d) of the Convention applied (on that point, the Court therefore did not consider pertinent the Court of Cassation’s reason, based on a literal construction of Article 6 of the Convention, for rejecting the applicant’s ground of appeal based on that provision).   As the Court had stated on a number of occasions, it could prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refused to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). As such, their admission in evidence would not in itself contravene Article 6 §§ 1 and 3(d). However, where a conviction was based solely or to a decisive degree on depositions that had been made by a person whom the accused had had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence were restricted to an extent that was incompatible with the guarantees provided by Article 6.   Following its case-law on the subject, the Court said that it was furthermore clear that the cross-examination of prosecution witnesses in the wide sense of that term under the Convention system should necessarily always take place at the trial. Although the evidence, including the evidence for the prosecution, normally had to be examined at the hearing, certain special circumstances such as those referred to above could make it difficult, or even impossible, for depositions made at an earlier date to be repeated at a public hearing. In such cases, Article 6 required only that the accused should have been given an adequate and proper opportunity to challenge the evidence concerned, even before trial.   The Court also implicitly rejected the Government’s argument based on the need to protect the right to remain silent of a co-accused called to repeat at a public hearing statements he had made previously. It was not the right to remain silent that was in issue. The co-accused retained his right to remain silent and not to incriminate himself. However, if he exercised that right, as in the case before the Court, his previous depositions could only be used against other persons as material evidence of guilt if the accused had had the opportunity of cross-examining him at some stage in the proceedings.   In the case before the Court, the domestic courts had convicted the applicant solely on the basis of statements made by a co-accused before the trial in connected proceedings and neither the applicant nor his lawyer had been given an opportunity at any stage of the proceedings to question him. The Court therefore concluded that the applicant had not been given an adequate and proper opportunity to contest the statements on which he had been found guilty.         Article 41   The Court considered that it could not speculate on what the outcome of the proceedings would have been if they had complied with Article 6 §§ 1 and 3(d). It therefore made an award for non-pecuniary damage only, in the sum of ITL 15,000,000. The applicant was also awarded a lump sum of ITL 3,000,000 for the costs he had incurred before the Court.   Judge Zupančič expressed a partly dissenting opinion, which is annexed to the judgment.   ***   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: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (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.