CASE OF A.M. v. ITALY
Violation of Art. 6-1;Violation of Art. 6-3-d;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
Christos Rozakis
6. The applicant, an Italian national, was born in 1942 and lives in Florence. 7. On an unspecified date, G., a minor, complained to the County Department of Public Safety in Seattle (United States) that while on holiday in Italy he had been indecently assaulted by the applicant, a caretaker in the halls of residence where he had been staying. Consequently, the Florence public prosecutor’s office brought criminal proceedings against the applicant for sexual assault on a minor and gross indecency in a public place. 8. On 16 March 1991 the Florence public prosecutor sent international rogatory letters to the Criminal Division of the King County District Court in Seattle pursuant to the Treaty for Mutual Assistance in Criminal Proceedings between the Government of the Italian Republic and the Government of the United States of America (“the Mutual Assistance Treaty”), which had been ratified by Law no. 224 of 1984. The aim of the rogatory letters was for questions to be put to G., his father (Mr D.) and Miss F., the doctor in whom G. had first confided. The public prosecutor set out in detail the questions which he considered should be put to the witnesses and the manner in which the record of interview should be drafted. He added that no lawyer should be present during the interview. 9. On 6 November 1991 Mr D. was questioned by a Seattle police officer. No lawyer was present at the interview. In essence, he confirmed that his son had said that he had been fondled by the applicant. On 26 May 1992 the Italian Consulate-General in San Francisco (United States) received the record of the interview from the American authorities with two documents containing written statements by G.’s mother (Mrs D.) and Mrs N., a child psychotherapist who was treating G. for the behavioural disorders he presented. In their statements, Mrs N. recited the events that G. had related to her and the traumatic effects they had had, while Mrs D. confirmed her husband’s version of events. The documents were then translated into Italian and sent to the Florence public prosecutor. 10. The applicant was committed for trial before the Florence Criminal Court. 11. On 25 October 1993 the Florence public prosecutor applied to the President of the Criminal Court for permission to summons G., Mr and Mrs D. and Mrs N. to appear at a public hearing on 23 November 1993 for questioning. The case file does not reveal whether that application was granted or whether the witnesses concerned were served with summonses to attend. Whatever the position, none of them appeared at the trial before the Criminal Court and the examination requested by the public prosecutor did not take place. 12. On 23 November 1993 two police officers from Florence were questioned. They indicated that they had received G.’s complaint from the American authorities and gave a description of the hall of residence where the applicant had been working at the material time. 13. At the request of the public prosecutor and despite opposition by the applicant, the Criminal Court ordered that the documents received from the United States, in particular the record of the interview with Mr D. and the statements of Mrs D. and Mrs N., should be read out. That decision was taken pursuant to Article 512 bis of the Code of Criminal Procedure (CCP), which provides: “On application by a party and having regard to the other evidence, the judge may order that the records of the statements made by a foreign national living outside the Italian territory be read out if either that person has not been summonsed to appear or, having been so summonsed, has failed to appear.” The applicant and the defence witnesses gave evidence that same day. 14. In a judgment of 19 January 1994, which was deposited with the registry on 19 March 1994, the court imposed a two-year suspended sentence on the applicant. That decision was taken on the basis of the complaint lodged by G. with the Department of Public Safety in Seattle and the statements made by Mr and Mrs D. and Mrs N., which the court found to be credible and consistent. 15. On 26 April 1994 the applicant appealed to the Florence Court of Appeal. He argued, inter alia, that the acts performed pursuant to the rogatory letters were invalid. In that connection, he noted that G. had never been interviewed and that evidence had been taken from Mrs D. and Mrs N. – whom the Florence public prosecutor had not sought to interview – without authority. Furthermore, they had not been questioned but had merely made written statements. As regards Mr D.’s interview, the American police officer who had conducted it had been acting without authority, given that the international rogatory letters had been sent to the District Court in Seattle. Moreover, no lawyer had been present when the interviews and statements were obtained and the persons concerned had not been asked to take the oath, which showed that the documents did not constitute “testimony”, but merely “preliminary investigative acts”. As such, they should not have been used by the Florence Criminal Court as evidence of the accused’s guilt. Lastly, the applicant contended that Article 512 bis CCP was not applicable in the instant case as that provision referred only to statements made in Italy. 16. In a judgment of 17 May 1996, which was deposited with the registry on 23 May 1996, the Court of Appeal upheld the judgment of the Criminal Court. It observed that by virtue of the locus regit actum principle, acts performed under rogatory letters had to be regulated by the law of the foreign State to which the Italian authorities had referred, provided that the foreign law was not incompatible with Italian public order and in particular “defence rights”. In the instant case, the procedure followed by the Seattle authorities could not be regarded as having infringed those rights as Article 512 bis CCP allowed statements made in Italy or elsewhere by foreign nationals resident outside the national territory to be read out. As regards the fact that G. had not been questioned, the Court of Appeal considered that it was quite understandable that the American police should have wished to prevent the minor, who had been affected psychologically by the violence he had endured, from suffering any further trauma. 17. On 29 June 1996 the applicant appealed to the Court of Cassation. Referring to the arguments he had raised before the Court of Appeal, he repeated his case that the documents obtained through rogatory letters should not have been used to decide his guilt. He also maintained that Article 431 § 1 (d) CCP, which requires that a record of acts performed outside the Italian territory by rogatory letters be lodged on the judge’s file (fascicolo per il dibattimento), was unconstitutional. He considered in particular that that provision was incompatible with Articles 3 and 24 of the Italian Constitution, which respectively guarantee the equality of all citizens before the law and the right to defend oneself at every stage of the proceedings. In that connection, he stressed that he had been given no opportunity to question Mr D., Mrs D. or Mrs N., whose statements had formed the basis of his conviction. 18. In a judgment of 17 January 1997, which was deposited with the registry on 2 April 1997, the Court of Cassation cited the provisions of Article 512 bis CCP, which it held to be applicable in the instant case, and declared the issue of constitutionality raised by the applicant irrelevant. Finding that the reasons given by the Florence Court of Appeal on all the issues in dispute had been cogent and correct, it dismissed the applicant’s appeal. 19. Under the terms of Article 1 of the Mutual Assistance Treaty, the signatory States undertake to afford each other mutual assistance in criminal investigations and proceedings. Such assistance includes in particular the hearing of witnesses in the territory of the State to which the request is addressed. In that connection, Article 14 of the Mutual Assistance Treaty provides notably: “A person from whom evidence is sought shall, if necessary, be compelled to appear and testify to the same extent as would be required in criminal investigations or proceedings in the Requested State. Upon request, the Requested State shall specify the date and place of the taking of testimony. The Requested State shall permit the presence [at the hearing] of an accused, counsel for the accused, and persons charged with the enforcement of the criminal laws to which the request relates. The executing authority shall provide persons permitted to be present [at the hearing] the opportunity to question the person whose testimony is sought in accordance with the laws of the Requested State. The executing authority shall provide persons permitted to be present [at the hearing] the opportunity to propose additional questions and other investigative measures. Testimonial privileges under the laws of the Requesting State shall not apply in the execution of a request, but such questions of privilege shall be preserved for the Requesting State.”