La sentenza Luca/Italia sulla violazione dei diritti dell’uomo

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Premessa
La corte europea dei diritti dell’uomo di Strasburgo ha accertato la violazione
da parte dell’Italia dell’art. 6 della Convenzione europea per la salvaguardia
dei diritti dell’uomo e delle libertà fondamentali in un caso in cui
la condanna penale si era fondata sulle dichiarazioni rese da un pentito, ritenendo
che le stesse non fossero adeguatamente riscontrate;si tratta della sentenza
resa nel procedimento LUCA c. Italia, che troverete qui allegata;nel testo mi
sono permesso di evidenziare in grassetto i passaggi essenziali della parte
in diritto; come avrete certamente la pazienza di vedere, la corte non ha però
ritenuto che, ex se, il sistema del 513 "vecchia maniera" (ante 111
cost) sia contrario al giusto processo fissato dal suo Case Law; ha solo rilevato
come nel caso in esame vi fossero solo le dichiarazioni rese dal collaboratore,
e non latri elementi sufficienti per la condanna del LUCA; interessante anche
la opionione "partly dissenting" di un giudice, il quale propugna
(almeno mi pare a prima lettura) un sistema di revisione delle condanne nel
caso di accertamento della violazione dell’art. 6 da parte della Corte

buona meditazione a tutti
ignazio juan patrone ipatron@tin.it

Il testo
CORTE EUROPEA DEI DIRITTI DELL’UOMO
CASE OF LUCÀ v. ITALY
(Application no. 33354/96)

JUDGMENT
(on the merits)

STRASBOURG
27 February 2001
This judgment is not final. Pursuant to Article 43 § 1 of the Convention,
any party to the case may, within three months from the date of the judgment
of a Chamber, request that the case be referred to the Grand Chamber. The judgment
of a Chamber becomes final in accordance with the provisions of Article 44 §
2 of the Convention.
This judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It is subject to editorial revision before its reproduction
in final form in the official reports of selected judgments and decisions of
the Court.

In the case of Lucà v. Italy,
The European Court of Human Rights (First Section), sitting as a Chamber composed
of:
Mrs E. PALM, President,
Mrs W. THOMASSEN,
Mr B. CONFORTI,
Mr G. J̉ۓRUNDSSON,
Mr C. BÃŽRSAN,
Mr J. CASADEVALL,
Mr B. ZUPANCIC, judges,
and Mr M. O’BOYLE, Section Registrar,
Having deliberated in private on 6 February 2001,
Delivers the following judgment, which was adopted on the last?mentioned date:
PROCEDURE
1. The case originated in an application (no. 33354/96) against Italy lodged
with the European Commission of Human Rights ("the Commission") under
former Article 25 of the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by an Italian national, Mr Nicola Lucà
("the applicant"), on 17 January 1994.
2. The applicant was represented by Mr Francesco Macrí, a lawyer practising
in Reggio de Calabre. The Italian Government ("the Government") were
represented by their Agent, Mr Umberto Leanza, Head of the Diplomatic Disputes
Department at the Ministry of Foreign Affairs, assisted by Mr Vitaliano Esposito,
Co-agent of the Italian Government at the European Court of Human Rights.
3. Relying on Article 6 §§ 1 and 3(d) of the Convention, the applicant
alleged that he had been convicted on the basis of statements made by a witness
whom he had never been given an opportunity to examine or to have examined.
4. The application was transmitted to the Court on 1 November 1998, when Protocol
No. 11 to the Convention came into force (Article 5 § 2 of Protocol No.
11).
5. The application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 § 1 of the Convention) was constituted as
provided in Rule 26 § 1 of the Rules of Court.
6. By a decision of 9 March 1999, the Chamber declared the application admissible.
7. The applicant and the Government each filed observations on the merits (Rule
59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant, who was born in 1955, is currently detained in Cosenza Prison.

9. On 25 October 1992 N. and C. were arrested by carabinieri from Roccella Jonica
(Reggio de Calabre) and found to be in possession of cocaine.
10. On 25 and 26 October 1992 N. was questioned, initially by the carabinieri,
and subsequently by the Locri Public Prosecutor (Reggio de Calabre). He said
that he had obtained part of the drugs from C. for his own use; the remainder
belonged solely to C. He added that on the day of their arrest, C. had accompanied
him to certain people’s homes to try to buy drugs. After the evening meal they
had gone to the applicant’s home. The applicant had said that he was prepared
to supply them with five hundred grammes of cocaine to be delivered a few days
later, as he was not willing to accept deferred payment and could not go out
after 8 p.m. to get the drugs.
11. N. was questioned by the carabinieri as someone who was helping them with
their inquiries ("persona che puó riferire circostanze utili ai
fini delle indagini"), not as an accused. For that reason, he was not assisted
by a lawyer. However, the Locri Public Prosecutor subsequently decided that
N. should be regarded as a "suspect" ("indagato"), and therefore
questioned him in that capacity.
12. By an order of 12 February 1993 the Locri investigating judge committed
the applicant, C. and two other suspects, Mr A. and Mr T., for trial before
Locri Criminal Court for drug-trafficking. A. was also accused of unlawful possession
of an offensive weapon. Separate proceedings were instituted against N. for
possession of drugs.
13. At the hearing on 17 July 1993, N. was called to give evidence as a person
accused in connected proceedings ("imputato in procedimento connesso").
However, he chose to remain silent as he was entitled to do by virtue of Article
210 of the Code of Criminal Procedure (hereafter, the "CCP").
14. The lawyers acting for the accused argued that Article 513 of the CCP was
unconstitutional since it was incompatible with Articles 3 and 24 of the Italian
Constitution - which guaranteed the equality of citizens before the law
and the right to defend oneself at all stages of the proceedings - and Article
6 of the European Convention on Human Rights (hereafter "the Convention").
They observed in particular that, as construed by the Constitutional Court,
Article 513 of the CCP laid down that if a person accused in connected proceedings
exercised his right to remain silent, the court could read and use any statements
made by him to the public prosecutor or to the investigating judge during the
investigation. As a result, the accused was deprived of any opportunity of examining
that person or of having him examined.
15. On the same day the Criminal Court dismissed as manifestly unfounded the
objection that the provision was unconstitutional and ordered that the record
of the statements made by N. to the public prosecutor should be read out. It
noted that the statutory right to remain silent was intended to protect an accused,
who could not be required to make statements that could be used in evidence
against him. Further, the rule that statements made during preliminary investigations
could be read and used had been established by the Constitutional Court itself
in its judgment no. 254 of 3 June 1992.
16. In a judgment of 7 March 1994, which was lodged with the registry on 1 June
1994, Locri Criminal Court sentenced the applicant to eight years and four months’
imprisonment and a fine of 54,000,000 Italian lire (approximately FRF 183,000).
C., A. and T. were also given prison sentences ranging between six and nine
years.
17. The Criminal Court noted at the outset that the main evidence against the
accused was the statements which N. had made to the public prosecutor, since
the statements made to the carabinieri were inadmissible under Article 513 of
the CCP. It also observed that having regard to N.’s personality and the spontaneity
and precision with which his statements had been made, his depositions should
be regarded as credible. The Criminal Court noted that N. had recognised a photograph
of the applicant and had given an accurate description of his home and the route
followed to get there. In addition, the applicant already had previous convictions
under the drug-trafficking legislation and was under judicial supervision ("sorveglianza
speciale"). He was prohibited from leaving his home after dusk, and that
was a possible explanation for his unwillingness to go out after 8 p.m. Furthermore,
the amount of cocaine found in C.’s possession showed that C. had contacts with
drug dealers and meant that N’s account of his visit to the applicant’s home
was probably true. It also confirmed that the negotiations that had started
were genuine.
18. On 13 July 1994 the applicant appealed to Reggio de Calabre Court of Appeal.
He contested, inter alia, the reliability of N.’s statements and complained
that they had been made in breach of the adversarial principle and in the absence
of a judge or of the defendants’ lawyers.

19. In a judgment of 7 November 1994, Reggio de Calabre Court of Appeal followed
in substance the arguments set out in the order of 17 July 1993. It upheld the
decision of the court below concerning the applicant, while reducing A.’s sentence.

20. On 18 February 1995 the applicant and his co-accused appealed to the Court
of Cassation. T. relied, inter alia, on Article 6 § 3(d) of the Convention
contending that N’s statements should have been declared inadmissible in evidence.
21. In a judgment of 19 October 1995, which was lodged with the registry on
3 November 1995, the Court of Cassation dismissed the appeals of the applicant
and his co-accused, holding that the grounds given by the Court of Appeal for
its decision on all the disputed issues relating to the drug-trafficking count
had been reasonable and correct. It overruled the impugned decision with regard
to A.’s conviction for being unlawfully in possession of an offensive weapon
and remitted the case to Catanzaro Court of Appeal.
22. The Court of Cassation observed among other things that Article 6 §
3(d) of the Convention concerned " the examination of witnesses, who ...
are required to tell the truth, not the examination of the accused, who are
entitled to defend themselves by remaining silent or even by lying". Further,
since all States that were party to the Convention had an obligation by relevant
domestic legislation to regulate the examination of witnesses, it was "obvious
that ... when a witness refused to give evidence, statements made to the public
prosecutor ... had to be produced for the court’s file".
II. RELEVANT DOMESTIC LAW
(a) Rules in force at the material time
23. The circumstances in which statements made by an accused or co-accused before
trial may be admitted in evidence are set out in Article 513 of the CCP.
24. As initially worded, the first paragraph Article 513 of the CCP provided
that statements made by an accused before trial could by admitted in evidence
by the trial court if the accused failed to appear or refused to repeat the
statement.
25. On the other hand, the second paragraph of Article 513 concerned statements
made before trial by persons accused in connected proceedings. Unlike the position
under the first paragraph, the second paragraph did not permit the trial court
to admit such statements in evidence if the accused exercised his right to remain
silent.
26. In its judgment no. 254 of 1992, the Constitutional Court declared the second
paragraph of Article 513 unconstitutional on the ground that, as the statements
referred to therein could not be admitted in evidence at trial if the accused
in connected proceedings remained silent, there was an unjustified difference
in treatment between those statements and statements of the type referred to
in the first paragraph. The Constitutional Court thereby enabled trial courts
to admit statements made by a co-accused in connected proceedings, irrespective
of whether the person against whom they were being used had been given the opportunity
of examining the maker of the statement or of having him examined at any stage
in the proceedings. Furthermore, the Constitutional Court made no reference
to the procedural safeguards embodied in Article 6 of the Convention or to the
criteria established by the Court’s case-law.
(b) Developments subsequent to the applicant’s final conviction
27. By Law no. 267 of 7 August 1997 Parliament amended Article 513 with a view
to making it consistent with the adversarial principle. In substance, statements
made by a co-accused or by an accused in connected proceedings could no longer
be used against another person without his consent if the maker of the statement
exercised his right to remain silent.
28. However, in its judgment no. 361 of 2 November 1998 the Constitutional Court
again declared Article 513 unconstitutional, this time in its entirety. It held
that precluding the trial court from admitting such statements in evidence if
the maker remained silent entailed a risk that the court would be deprived of
evidence that could assist it in reaching its decision, a risk that was dependent
solely on the decision of the maker of the statements.
29. Following that decision Parliament adopted the Constitutional Amendment
Act no. 2 of 23 November 1999 whereby the principle of a fair trial was embodied
in the Constitution itself. Article 111 of the Constitution, as now worded,
reads:
"1. Jurisdiction shall be exercised through fair proceedings, conducted
in accordance with rules of procedure.
2. All proceedings shall be conducted in compliance with the principles of adversarial
process and equality of arms before a neutral and impartial court. The right
to be tried within a reasonable time shall be guaranteed by law.
3. In criminal proceedings, the law shall guarantee that the person accused
of an offence shall be informed promptly and in confidence of the nature and
grounds of the charge against him; that he shall have adequate time and facilities
for the preparation of his defence; that he shall be given an opportunity before
the court to examine or to have examined anyone giving evidence against him,
to obtain the attendance and examination of any defence witnesses on the same
conditions as witnesses called by the prosecution and to obtain the production
of any other evidence in his favour; and that he will have the assistance of
an interpreter if he cannot understand or speak the language used at the trial.
4. The principle of adversarial process shall be observed during criminal proceedings
with regard to the examination of evidence. An accused’s guilt cannot be established
on the basis of statements made by a person who has freely and wilfully eluded
examination by the accused or his lawyer.
5. Rules shall be made governing the circumstances in which adversarial examination
of the evidence shall be dispensed with either because the accused has consented,
or because there is due evidence that such examination is objectively impossible
or that there has been unlawful conduct."
30. In Law no. 35 of 25 February 2000, the Italian Parliament clarified how
the amended Article 111 of the Constitution would apply to trials under way.
In particular, the former rules continue to apply in certain circumstances.
Further, a consolidating bill implementing that constitutional amendment was
adopted by Parliament on 14 February 2001. Among other things, this implementing
legislation amends Article 513 CCP by providing that if the maker of statements
made before the trial exercises his right not to answer questions, his statements
will, as a general rule, be admissible in evidence if the parties agree. However,
the former rules will continue to apply in at least some circumstances to trials
that are under way.
THE LAW
I. VIOLATION OF ARTICLE 6 §§ 1 AND 3(d) OF THE CONVENTION
31. The applicant complained that the criminal proceedings against him had been
unfair and alleged that he had been convicted on the basis of statements made
to the public prosecutor, without being given an opportunity to examine the
maker of the statements, N., or to have him examined. He relied on Article 6
§§ 1 and 3(d) of the Convention, the relevant parts of which read
as follows:
"1. In the determination of... any criminal charge against him, everyone
is entitled to a fair... hearing... by [a]... tribunal...
3. Everyone charged with a criminal offence has the following minimum rights:...
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;..."
32. The Government submitted that, in principle, the Italian legal system afforded
the accused the right to examine prosecution witnesses. However, in order to
establish the facts of the case, the trial court was permitted in certain circumstances
and subject to complying with the statutory conditions to rely in reaching its
decision on evidence obtained during the preliminary investigation.
33. In the instant case, under the relevant Italian legislation, N. was not
a "witness" but a "person accused in connected proceedings",
and was entitled to remain silent. As the Court itself had recognised in the
Saunders case (see the Saunders v. the United Kingdom judgment of 17 December
1996, Reports of Judgments and Decisions 1996-VI, p. 2064, § 68), "although
not specifically mentioned in Article 6 of the Convention the right to silence
and the right not to incriminate oneself are generally recognised international
standards which lie at the heart of the notion of a fair procedure under Article
6". Accordingly, the domestic authorities had had no alternative but to
accept N.’s decision not to give evidence, since requiring him to repeat his
statements at the trial would have entailed a violation of his fundamental rights.

34. The Government emphasised that three interests had been at stake: the right
of the co-accused to remain silent, the right of the accused to examine a co-accused
witness and the right of the judicial authority not to be deprived of evidence
obtained during the investigation. The issue was so complex that the provisions
governing the admissibility of the statements of a prosecution witness who was
also a co-accused had been examined on several occasions by the Italian Constitutional
Court and been the subject of amendments. In particular, the Constitutional
Court had restated in its case-law the principle that a court should not be
deprived of evidence obtained during the investigation ("non dispersione").

35. The Government observed lastly that on 10 September 1997, the Committee
of Ministers of the Council of Europe had adopted recommendation R (97) 13,
concerning the Intimidation of Witnesses and the Rights of the Defence, in which
it was suggested that States should use "pre-trial statements given before
a judicial authority as evidence in court when it is not possible for witnesses
to appear before the court or when appearing in court might result in great
and actual danger to the life and security of witnesses, their relatives or
other persons close to them".
36. The applicant disagreed with the Government’s arguments. He said that his
contention was not that the domestic courts had failed to apply the provisions
in force at the material time, but that those provisions were incompatible with
the principles set out in the Convention. Furthermore, the fact that the Italian
Parliament had decided on 7 August 1997 to amend Article 513 of the CCP only
went to confirm the view that the provision in question infringed every accused
person’s "right to put the prosecution to proof". He stressed, lastly,
that N.’s statements had been the only evidence against him.
37. As the requirements of Article 6 § 3 are to be seen as particular aspects
of the right to a fair trial guaranteed by Article 6 § 1, the Court will
examine the complaints under those two provisions taken together (see, among
many other authorities, the Van Mechelen and Others v. the Netherlands judgment
of 23 April 1997, Reports 1997-III, p. 711, § 49).
38. The Court reiterates that the admissibility of evidence is primarily a matter
for regulation by national law and as a general rule it is for the national
courts to assess the evidence before them. The Court’s task under the Convention
is not to give a ruling as to whether statements of witnesses were properly
admitted as evidence, but rather to ascertain whether the proceedings as a whole,
including the way in which evidence was taken, were fair (see, among other authorities,
the Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, p.
470, § 67 and the Van Mechelen and Others judgment cited above, p. 711,
§ 50).
39. The evidence must normally be produced at a public hearing, in the presence
of the accused, with a view to adversarial argument. There are exceptions to
this principle, but they must not infringe the rights of the defence. As a general
rule, paragraphs 1 and 3(d) of Article 6 require that the defendant be given
an adequate and proper opportunity to challenge and question a witness against
him, either when he makes his statement or at a later stage (see the Lüdi
v. Switzerland judgment of 15 June 1992, Series A no. 238, § 49 and the
Van Mechelen and Others judgment cited above, p. 711, § 51).
40. As the Court has stated on a number of occasions (see, among other authorities,
the Isgró v. Italy judgment of 19 February 1991, Series A no. 194-A,
§ 34, and the Lüdi v. Switzerland judgment cited above, § 47),
it may prove necessary in certain circumstances to refer to depositions made
during the investigative stage (in particular, where a witness refuses to repeat
his deposition in public owing to fears for his safety, a not infrequent occurrence
in trials concerning Mafia-type organisations). If the defendant has been given
an adequate and proper opportunity to challenge the depositions, either when
made or at a later stage, their admission in evidence will not in itself contravene
Article 6 §§ 1 and 3(d). The corollary of that, however, is that where
a conviction is based solely or to a decisive degree on depositions that have
been made by a person whom the accused has had no opportunity to examine or
to have examined, whether during the investigation or at the trial, the rights
of the defence are restricted to an extent that is incompatible with the guarantees
provided by Article 6 (see the judgment of Unterpertinger v. Austria of 24 November
1986, Series A no. 110, §§ 31-33; Saïdi v. France du 20 September
1993, Series A no. 261-C, §§ 43-44; and of Van Mechelen and Others
cited above, p. 712, § 55; see also Eur. Commission H.R., Dorigo v. Italy,
application no. 33286/96, Commission Report of 9 September 1998, § 43,
unpublished, § 43 and, on the same case, Committee of Ministers Resolution
HR (99) 258 of 15 April 1999).
41. In that regard, the fact that the depositions were, as here, made by a co-accused
rather than by a witness is of no relevance. In that connection, the Court reiterates
that the term "witness" has an "autonomous" meaning in the
Convention system (see the Vidal v. Belgium judgment of 22 April 1992, Series
A no. 235-B, § 33). Thus, where a deposition may serve to a material degree
as the basis for a conviction, then, irrespective of whether it was made by
a witness in the strict sense or by a co-accused, it constitutes evidence for
the prosecution to which the guarantees provided by Article 6 §§ 1
and 3(d) of the Convention apply (see,Eur. Commission H.R., mutatis mutandis,
the Ferrantelli and Santangelo v. Italy judgment of 7 August 1996, Reports 1996-III,
§§ 51 and 52).
42. In the light of the foregoing, the reasons given by the Court of Cassation
in its judgment of 19 October 1995 for dismissing the appeal brought under Article
6 § 3(d) of the Convention - reasons on which the respondent Government
also relied in part - do not appear pertinent. In particular, the fact that
under the domestic law in force at the material time (see paragraph 26 above)
the court could rule statements made before the trial admissible if a co-accused
refused to give evidence could not deprive the accused of the right which Article
6 § 3(d) afforded him to examine or have examined in adversarial proceedings
any material evidence against him.
43. In the instant case, the Court notes that the domestic courts convicted
the applicant solely on the basis of statements made by N. before the trial
and that neither the applicant nor his lawyer was given an opportunity at any
stage of the proceedings to question him.
44. In those circumstances, the Court is not satisfied that the applicant was
given an adequate and proper opportunity to contest the statements on which
his conviction was based.
45. The applicant was, therefore, denied a fair trial. Accordingly, there has
been a violation of Article 6 §§ 1 and 3(d).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
46. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the Convention or
the Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Damage
47. The applicant said that his conviction and imprisonment had been unjust.
He had thereby been prevented from working and his private and family life had
suffered. He alleged that as a result of the violation of the Convention he
had sustained substantial pecuniary and non-pecuniary damage, which he put at
500,000,000 Italian lire (ITL).
48. The Court finds no causal link between the violation of Article 6 of the
Convention and the pecuniary damage alleged by the applicant. The Court cannot
speculate on what the outcome of the proceedings would have been if they had
complied with Article 6 §§ 1 and 3(d). Consequently, it dismisses
the applicant’s claims under this head (see Cöeme and Others v. Belgium
[GC], nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 155 ECHR
2000-VII).
On the other hand, it finds that the applicant sustained some non-pecuniary
damage, which cannot be compensated for simply by a finding of a violation.
Ruling on an equitable basis, in accordance with Article 41 of the Convention,
the Court decides to award the sum of ITL 15,000,000.
B. Costs and expenses
49. The applicant also sought the reimbursement of various costs that he had
incurred before the domestic courts and the Convention institutions.
50. Under its settled case-law, the Court can only make an award in respect
of costs and expenses incurred by the applicant if it is established that such
costs and expenses were actually and necessarily incurred and were reasonable
as to quantum (see, among other authorities, the Zimmermann and Steiner v. Switzerland
judgment of 13 July 1983, Series A no. 66, § 36). The Court notes, however,
that the applicant has not provided any details of the costs of which he seeks
reimbursement. It accordingly dismisses his claim for reimbursement of the costs
incurred before the domestic courts.
51. As regards the costs incurred before the Convention institutions, the Court
considers that aspects of the case were complex. However, the applicant has
not produced any evidence in support of his claim for costs. However, in the
light of the written work which his lawyer has incontestably performed the Court
considers it appropriate to award the applicant a lump sum of ITL 3,000,000,
to cover all the costs (see Voisine v. France, no. 27362/95, 8.2.2000, §
39; unpublished).
C. Default interest
52. According to the information available to the Court, the statutory rate
of interest applicable in Italy at the date of adoption of the present judgment
is 3.5% per annum.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of Article 6 §§
1 and 3(d) of the Convention;

2. Holds by six votes to one
(a) that the respondent State is to pay the applicant, within three months from
the date on which the judgment becomes final according to Article 44 §
2 of the Convention, 15,000,000 (fifteen million) Italian lire in respect of
non-pecuniary damage and 3,000,000 (three million) Italian lire for costs and
expenses;
(b) that simple interest at an annual rate of 3.5% shall be payable from the
expiry of the above-mentioned three months until settlement;
3. Dismisses unanimously the remainder of the applicant’s claim for just satisfaction.
Done in French, and notified in writing on 27 February 2001, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
Michael O’BOYLE Elisabeth PALM
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the partly concurring opinion of Mr Zupancic is annexed
to this judgment.
E.P.
M.O’B.
PARTLY CONCURRING OPINION OF JUDGE ZUPANCIC
I
In cases where procedural errors contaminate the legal credibility of conviction,
there persists the problem of "just compensation". In a separate opinion
in Cable and Hood v. the United Kingdom, I outlined the absurdity of the artificial
separation of procedural injustice from its substantive result. According to
Convention, these are not "mere" procedural errors relevant only insofar
as they affect the truth-finding function of a particular criminal process and
the veracity of the resulting conviction. These are among the gravest substantive
human-rights violations in their own right. Originally, the framers of the Convention
anticipated that these procedural errors would be among the few situations in
which the judgment of the European Court of Human Rights would be directly enforceable
so as to overrule the decision of the national judiciary. We are speaking here
of substantive due process.
In internal law there exist two main possible remedies to correct procedural
human-rights violations, depending on who commits the violations and at what
stage of the criminal procedure. These two remedies are (1) the exclusionary
rule and (2) the retrial of the whole case. The exclusionary rule remedy, an
alter ego of the privilege against self-incrimination, applies mostly in the
focused pre-trial phase situations where the violation has been committed by
police. The remedy of trial de novo applies in situations where the first-instance
court, rather than police, has committed what in Continental law is sometimes
called "an absolutely essential procedural error". These errors often
overlap with the procedural human-rights violations.
In the context of Article 41, the question arises whether our pecuniary "just
satisfaction" is not an entirely inadequate remedy for procedural human-rights
violations if, as a consequence of these violations, the person who has not
been afforded a fair criminal trial continues to sit in prison.
Pecuniary just satisfaction is logical only if we set out from the premise that
gravely tainted criminal procedures may nevertheless yield substantively just
convictions. If this were the premise, however, I doubt the framers of the Convention
would have considered the procedural violations per se as grave human-rights
violations to which they dedicated a substantial portion of the Convention.
Since a large proportion of our own case-law deals with essential procedural
requirements of fair trial established in Articles 5, 6, etc., I doubt this
would make sense if we started from the premise that the procedure, fair or
not, is merely a means to a substantively correct conviction and that in the
last analysis what matters is only whether the conviction is a "true positive".
Epistemologically speaking, the credibility of conviction and acquittal, in
any event, cannot be
tested except through a flawless procedure. It follows ineluctably that the
only adequate remedy is the retrial of the case.
The majority maintains it is not willing to speculate, should the procedure
be renewed and corrected, about the alternative outcome of the case. But the
majority is then implicitly speculating to the effect that the corrected procedure
would have yielded the same result (conviction). In Cable and Hood v. the United
Kingdom we considered the mere finding of a violation to be a sufficient remedy,
which at least is consistent with the agnostic position taken vis-à-vis
the (in)justice of the ultimate conviction.
I maintain, however, that a criminal procedure tainted with grave human-rights
violations a priori cannot yield a substantively acceptable conviction. To maintain
otherwise is to subscribe to the classical inquisitorial standpoint that the
end justifies the means.
If proof of this be needed in international law, we may refer to the United
Nations Convention against Torture [hereinafter: CAT]. CAT maintains categorically
that all evidence directly and indirectly obtained by torture must be prevented
from reaching the eyes or ears of those who decide the criminal case (judge
or jury). CAT requires the exclusion of such evidence despite the fact that
confessions and other evidence extracted by torture may reinforce the truth-finding
function of criminal procedure: confessio regina probationum. If exclusion is
violated the procedure must be re-opened ab initio and subsequently the exclusion
of tainted evidence strictly maintained. A fortiori, where the procedural error,
such as the refusal to examine witnesses, fatally detracts from the truth-finding
function of criminal procedure, there should be a trial de novo.
In Scozzari and Giunta v. Italy, para. 249, we have made a step forward in resolving
this problem. We made a strong recommendation in the direction of restitutio
in integrum pro futuro . Admittedly, Scozzari was a non-final family law situation,
whereas here we are faced with the finality of a criminal conviction. Nevertheless,
I advocated a similar recommendation in this case. Many High Contracting Parties
to the Convention have already adopted a provision in their domestic procedural
law according to which an otherwise final criminal or private-law judgment becomes
subject to a new trial should the European Court of Human Rights Court find
a violation of the Convention.
Thus, I find it unacceptable - in a situation where the defendant was not permitted
to have the witnesses examined and cross-examined-, then to award 15.000.000
Italian lire as a "just compensation" for non-pecuniary damage, purportedly
on account of his "loss of real [viz. procedural] opportunities" .

II
A careful examination of the travaux preparatoires for what is today Article
41 (former Article. 50) reveals the original intentions of the founding fathers
of the Convention. The original version of the Article presented on 5 September
1949 by P.H. Teitgen read as follows:
"The verdict of the [European] Court [of Human Rights] shall order the
State concerned (1) to annul, suspend or amend the incriminating decision; (2)
to make reparation for damage caused; (3) to require the appropriate penal,
administrative or civil sanctions to be applied to the person or persons responsible."
[Emphasis added.]
This wording was later modified by the Committee of Experts for Human Rights
composed of Government representatives. The Italian delegate T. Perassi, a member
of the Permanent Court of Arbitration, proposed an amendment resulting in the
present version of Article 41.
The provision was inspired by the 1921 German-Swiss Treaty of Arbitration and
Conciliation (Article 10) and the Geneva General Pact for Pacific Settlement
of International Disputes of 1928 (Article 32). Of course, these provisions
were meant to deal with specific interstate situations in which the State party
to an arbitration agreement was unable to change its internal law but was willing
to pay an equitable satisfaction of another kind. The basis for the arbitrage
was extra judicial compensation for the damage suffered by an individual caused
to him by an alien State.
The reference to the "internal law of the said Party [which] only allows
for a partial reparation to be made" makes sense in inter-state disputes
in which the State was politically willing to compensate for the restitution
to the aggrieved individual, but was unable to do so due to specific provisions
of its internal, usually constitutional, law. The intent of the provision, therefore,
was to by-pass the internal legal impediments and to transpose the compensation
question to the inter-state diplomatic protection level. This is also why, as
we shall see, the language is difficult to interpret in the context of the Convention.
To the best of my knowledge, the sentence "internal law of the said Party
[which] only allows for a partial reparation to be made" has never been
fully interpreted by the Court.
In the context of the Convention this phrase, imported from an interstate arbitration
agreement, has two possible meanings. It either has to be put on a Procrustean
bed in order to derive any sense from it, i.e. insofar as it simply reiterates
that the internal law must be proven to be incapable of dealing with the human-rights
violation in question. Since the domestic remedies have to be exhausted before
the case reaches the European Court of Human Rights, the provision, as a formal
precondition for awarding just satisfaction, would seem redundant.
The question may also be reversed. The Convention is not an arbitration agreement.
Many procedural violations of human rights cannot be compensated for by pecuniary
"just satisfaction". The fears concerning the infringement of national
sovereignty which hung over the Committee of Experts for Human Rights in 1949
are clearly out of date today. That the underlying situation has radically changed
can easily be proven by the fact that so many States have sua sponte relinquished
this aspect of national sovereignty and have, by adopting specific legislation,
subjected the final judgments of their criminal and private law courts to a
trial de novo . In such re-trials the Court’s finding of a violation is taken
to be a legal novum factum. The implication is, of course, that the findings
of this Court should exert their direct binding force upon the first-instance
national courts retrying the cases. Clearly, nothing less will do if justice
in a case such as Lucà v. Italy is to be done.
Consequently, the second, more reasonable, interpretation of the phrase "if
the internal law of the High Contracting party concerned allows only partial
reparation to be made" should in my opinion be as follows. Before the Court
awards pecuniary just satisfaction, this critical phrase logically (argumento
a contrario) presupposes that the High Contracting Party’s legal system will
have done everything in its power to correct the violation in question. Since
the domestic remedies have been exhausted through the hierarchy of legal appeals
before the case has reached the European Court of Human Rights, this in most
cases implies that the "the internal law of the High Contracting party
concerned' did not "allow for [any] reparation to be made".
This, however, does not logically imply that the internal legal system cannot
react and correct the violation after it has been established by the European
Court of Human Rights. In this particular case, for example, under Article 632
para. 1 b) of the Italian Code of Criminal Procedure the "procuratore generale
presso la corte di appello" is empowered to request the retrial of the
case and the court of appeal is empowered to grant the retrial. Logically then,
the "reparation to be made" need not be "partial" only,
it can be full.
Of course, there is the problem of timing. Before the case reached the European
Court of Human Rights the internal legal system did not register the violation
of the European Convention on Human Rights. The domestic legal system, however,
is often capable of repairing the damage later, once the violation is notified
to it by the European Court of Human Rights. This Court, therefore, when handing
down its judgment, should not a priori assume that the domestic legal system
is incapable of full restitutio in integrum .
At a minimum, the Court ought to explore the (im)possibility for the internal
legal system to allow for full restitutio in integrum-, because this impossibility
of full restitutio in integrum is a strict legal precondition for the Court’s
awarding of pecuniary just satisfaction. The pecuniary just satisfaction, that
is clear, is an ultimum remedium.
On the other hand, Article 1 of the Convention obliges the State party to the
Convention "to secure to everyone within their jurisdiction the rights
and freedoms defined in Section I of this Convention". It would not be
logical to assume that this obligation simply ceases to exist, perhaps because
the pecuniary just satisfaction will have been paid, after the European Court
of Human Rights has found that the State had failed in its obligation to secure
to the applicant an essential procedural right defined in Article 6 § 3(b).

To maintain so would be to imply that there is a quid pro quo relationship between
an essential procedural human right (and perhaps the freedom) of the applicant
on the one hand and the payment of monies on the other hand. Despite the judgment
in Delta v. France, I find it difficult to accept such a reductive relationship
between a human right and its remedy.
III
Given the provisions of Article 1 of the Convention, there can be no doubt
that the State party to the Convention is under a moral obligation to correct
the violation of the human right found by this Court. Given the reference to
the impossibility of full reparation in Article 41 (as a negative legal precondition
for just satisfaction) the State party to the Convention is also under a legal
obligation to explore fully the possibilities in its internal law in order to
arrive at full restitutio in integrum.
To suggest that this legal obligation of restitutio in integrum no longer exists
subsequent to the finding of a violation by this Court, whether or not just
satisfaction had been awarded, would go against both Article 1 and Article 41.
It would go against Article 1 which clearly implies that the States are bound
to do everything possible to correct the violation. Since this is the whole
purpose of the Convention, this holds true a fortiori after it went undetected
by the internal legal system but has, consequently, been identified by the so-called
Strasbourg machinery. It would go against Article 41 because it presupposes
that full restitution would be made unless the internal law proves constitutionally
incapable of granting it .
To put this into perspective, let me emphasise that in some cases, such as those
concerning violations of Article 1 of Protocol No. 1, the pecuniary compensation
is the remedy par excellence. In some cases, the consequences of the violation
of a particular human right, for example in cases concerning Articles 2 and
3, is truly irreversible and can only be, although always insufficiently, mitigated
by pecuniary just satisfaction. In situations such as this one, however, deriving
from an unfair trial of the applicant, full restitutio in integrum is eminently
possible. It implies the full retrial of the whole case.

26 03 2001
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