CALABRO v. ITALY and GERMANY
Inadmissible
The applicant, Mr Giuseppe Calabrò, is an Italian national, born in 1950 and currently detained in Milan Prison. He was represented before the Court by Mr P. Sciretti, of the Milan Bar. The facts of the case, as presented by the applicant, may be summarised as follows. On 19 July 1993 the applicant was arrested in flagrante delicto by the Brescia police for importing a large quantity (approximately 46 kg) of cocaine. According to the police report, the drugs had been imported into Italy by an “infiltrator” called Jürgen Vervoorst (“Jürgen”) as part of a joint operation by the Italian and German police. On 17 July 1993 Jürgen had stayed at the Euroresidence Hotel in Brescia, which was under close police surveillance. On 18 July 1993 he had telephoned X, a drug trafficker living in Marbella (Spain) who was interested in buying drugs; X said that he had discussed the subject with the applicant. On 19 July 1993 X had informed Jürgen that the applicant was now in Brescia. The applicant had subsequently attended the Euroresidence Hotel, contacted Jürgen and asked him whether he had the “merchandise” (roba, an expression often used in criminal circles to refer to hard drugs). On being told that he had, the applicant had gone up to Jürgen’s room where he was shown a suitcase containing 20 kg of cocaine. He had made a gesture of approval and had immediately been arrested. The scene was recorded with audiovisual devices. Subsequently, X had telephoned the Euroresidence Hotel and pressed for news of the applicant. By an order of 23 July 1993 the Brescia investigating judge ruled that the applicant’s arrest was lawful and ordered his detention pending trial. On 5 July 1994 the applicant was committed for trial by the Milan Criminal Court on charges of international drug trafficking. The trial began on 26 October 1994. Numerous witnesses, including officers from the Italian police and the German federal police (Bundeskriminalamt – “the BKA”) gave evidence. They provided details of the nature of the police operation that had led to the applicant’s arrest and of the procedures used. On 17 July 1995 the Milan Criminal Court, which considered it “absolutely necessary” to hear Jürgen’s version of the events, issued a request for evidence on commission in which it asked the German authorities to take evidence from Jürgen in Germany. The request was transmitted to the German Ministry of Justice in Stuttgart. In a memorandum dated 1 November 1995 the Wiesbaden district judge informed the Milan Criminal Court that, according to information received from the BKA, it had not proved possible to find Jürgen, despite numerous attempts. He had gone on holiday on 6 September 1995 and had not been in touch since. On 4 December 1995, in view of the fact that Jürgen could not be located and that the defence had waived its right to have him examined, the Milan Criminal Court withdrew its request of 17 July 1995 for evidence on commission. At the applicant’s request, it decided to place in the case file certain statements made by Jürgen in connected criminal proceedings pending in Germany. In a judgment of 22 January 1996 the Milan Criminal Court convicted the applicant and sentenced him to fifteen years’ imprisonment and a fine of 300,000,000 Italian lire (ITL) (approximately 154,937 euros (EUR)). It relied in its decision on the circumstances of the applicant’s arrest (which had been confirmed by an audiovisual recording), the transcripts of telephone conversations Jürgen had had with X and other people implicated in drug trafficking, and statements by the Italian police and the BKA. That evidence showed that Latin-American drug traffickers had asked Jürgen, who was well known in drug-trafficking circles, whether he knew anyone who would be interested in buying cocaine. Three Italian nationals, X, Y and the applicant, had contacted Jürgen to express their interest, while X and the applicant had subsequently given him money. The Criminal Court did not consider it necessary to examine whether, as an undercover agent, Jürgen was liable to prosecution under Italian law. His statements had not been made in Italy, but in connection with the proceedings in Germany and, under the laws of that country, he was immune from prosecution. Furthermore, most of his statements concerned his links with the German police and were not relevant to the applicant’s case. The only document that was of relevance was one in which Jürgen had described his dealings with X and the applicant in order to reach an agreement for the sale of the cocaine and to make arrangements for delivery. In view of the fact that the German authorities said that Jürgen could not be found, his statements had henceforth to be regarded as “unrepeatable” (irripetibili) and, consequently, admissible in evidence on the merits of the charges against the applicant. His statements corroborated and confirmed other prosecution evidence against the applicant. In sentencing the applicant, the Criminal Court noted in particular that he had previous convictions (albeit for less serious offences) and that other criminal proceedings were pending against him. It also noted that it was apparent from the nature of the offence that he was active in drug-trafficking circles. Both the prosecution and the applicant appealed. The applicant submitted, inter alia, that the operation mounted by the police for the simulated sale of drugs was illegal. He argued that while the relevant Italian legislation (Articles 97 and 98 of Presidential Decree no. 309 of 1990) authorised operations for the simulated purchase and controlled delivery of drugs in exceptional cases, under no circumstances did it permit the fictitious sale of drugs. In his submission, Jürgen and the other police officers who took part in the case should have been examined as co-defendants, not witnesses. The fact that they had not been examined in that capacity meant that their statements should have been excluded. Furthermore, as the true identity of Jürgen had not been duly disclosed, admitting his statements in evidence infringed the fundamental principles of the Italian legal system. Lastly, the applicant argued that he should have been acquitted under Article 49 § 2 of the Criminal Code (see “Relevant domestic law” below), as, had it not been for the actions of Jürgen and other police officers, the alleged offence would not have been committed. On 4 November 1996 the Milan Court of Appeal, which considered it “absolutely necessary” for Jürgen to give oral testimony, issued a request for evidence on commission in which it asked the German authorities to hear Jürgen and to ensure that he was assisted by a lawyer. The Wiesbaden District Court arranged for a hearing on 24 March 1997 for evidence to be taken from Jürgen in accordance with the relevant provisions of German law. It indicated that the Italian judges, a representative from the public prosecutor’s office and the applicant’s lawyers were entitled to attend. However, on 21 March 1997 the BKA informed the Milan Court of Appeal that Jürgen’s whereabouts remained unknown. The hearing on 24 March 1997 was cancelled. On 17 April 1997 the applicant, finding the BKA uncooperative, applied for an order requiring Jürgen to appear before the Italian judicial authorities. The President of the Milan Court of Appeal granted his application on 8 May 1997, ordering Jürgen to appear on 27 June 1997 and inviting him to instruct a lawyer of his choice. The order was forwarded to the German authorities, who were requested to serve it on Jürgen in accordance with Articles 8 et seq. of the European Convention on Mutual Assistance in Criminal Matters. They were advised that Jürgen could remain anonymous. Jürgen did not attend the hearing on 27 June 1997. By a judgment of 27 June 1997, which was lodged with the registry on 3 February 1999, the Milan Court of Appeal increased the applicant’s sentence to sixteen years and three months’ imprisonment and a fine of ITL 350,000,000 (approximately EUR 180,759). It noted, firstly, that it was possible under the German Code of Criminal Procedure for a witness’s identity not to be disclosed in the record if the witness was in danger. In such cases, the papers certifying the witness’s identity were retained by the public prosecutor’s office. It further found that there could be no doubt as to Jürgen’s identity, as the case file showed that, on being questioned on 15 July 1993 by the Panama public prosecutor’s office, he had produced a passport in the name of Jürgen Vervoorst and stated that he had been working as a secret agent for the BKA and the American police for ten years. Lastly, several witnesses had said that he was the man responsible for the operation for importing cocaine into Europe. The Court of Appeal also said that, although it had made several attempts to obtain oral testimony from Jürgen, this had proved impossible. Accordingly, by virtue of Article 238 § 3 of the Italian Code of Criminal Procedure (“the CCP”), his statements to the German authorities could be placed in the court file and relied on by the court when deciding the case. As to Jürgen’s status in the Italian proceedings, the Court of Appeal observed that undercover agents were only entitled to immunity if their role in the criminal conduct concerned was “indirect and peripheral”, that is to say limited to surveillance and observing the actions of third parties. In the case before it, since Jürgen had played an active role in bringing the cocaine from Latin America to Germany and from there to Italy, he should have been treated as a co-defendant in the Italian proceedings. The fact that he had not been meant that his statements could only be relied on to the extent that they did not disclose matters for which he could be held criminally liable. The admissible part of his statements had shed light on the dynamics of the police operation that had led to the applicant’s arrest. As regards the applicant’s objection under Article 49 § 2 of the Criminal Code, the Court of Appeal noted that that provision precluded the imposition of a penalty on persons whose acts were wholly incapable of producing dangerous or harmful consequences. Moreover, the intervention of an undercover agent had no effect on a defendant’s acts if the defendant already had an intention to commit the offence. The Court of Appeal said that in the case before it the applicant had taken various preparatory steps: he had asked Jürgen to transport hundreds of kilograms of cocaine, paid him sums of money, remained in touch with him and attended the rendezvous for the delivery of the drugs. The applicant appealed to the Court of Cassation. He relied mainly on the same grounds of appeal, but also pointed out that Jürgen’s identity had not been established with certainty, and argued that his statements were therefore inadmissible ab initio. In a judgment of 15 October 1999, the text of which was lodged with the registry on 14 January 2000, the Court of Cassation held that the Court of Appeal had dealt with all the issues logically and correctly and dismissed the applicant’s appeal. As regards the alleged violation of Article 49 § 2 of the Criminal Code, it noted that an agreement over the arrangements for the sale of the cocaine had already been made in Marbella and that the applicant had decided to perform that agreement of his own free will. Article 238 of the CCP sets out the cases in which records of evidence obtained in other criminal proceedings may be placed in the case file (and therefore be used in evidence on the merits of the charges). Paragraph 3 of that provision lays down, inter alia, that “depositions which ... cannot be repeated” may in all cases be placed in the case file. Article 78 § 2 of the provisions on execution of the CCP provides: “depositions which cannot be repeated obtained by a foreign police force may be placed in the court file, either with the parties’ agreement or after the maker of the deposition has been heard ...” Article 49 § 2 of the Criminal Code prohibits punishment being imposed for acts or omissions which, by their nature or owing to the absence of a subject matter, are incapable of producing dangerous or harmful consequences.