CASE OF MARCELLO VIOLA v. ITALY [Extracts]
No violation of Art. 6;No violation of P7-4
Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;John Hedigan;Vladimiro Zagrebelsky
4. The applicant was born in 1959 and is currently detained in L'Aquila Prison. 5. On 16 March 1992 the applicant was arrested and remanded in custody on charges of murder and belonging to a mafia-type organisation. He was also charged with a number of counts of illegally carrying weapons. In particular, he had allegedly aided and abetted the carrying in a public place of a weapon used to commit a number of murders, including that of one M.L. 6. In a judgment of 16 October 1995, the Palmi Assize Court sentenced the applicant to fifteen years' imprisonment for membership of a mafia-type criminal organisation. He was acquitted of the other charges. 7. The applicant appealed. 8. In a judgment of 10 February 1999, the Reggio di Calabria Assize Court of Appeal reduced the applicant's prison sentence to twelve years. 9. The applicant appealed on points of law. In a judgment of 8 February 2000, the text of which was deposited at the registry on 25 February 2000, the Court of Cassation dismissed the applicant's appeal. 10. In the meantime, on 19 June 1996, the Reggio di Calabria investigating judge had made a fresh order for the applicant's detention pending trial. On 15 October 1996 he had committed the applicant to stand trial in the Palmi Assize Court. The applicant was charged with several counts of murder and attempted murder, membership of a mafia-type criminal organisation and illegally carrying a weapon. The applicant was accused, in particular, of having given orders to murder M.L. He was also accused of being an accomplice to carrying the weapon used to commit the crime. The applicant had alleged that this weapon had been one of the ones that he had been accused of carrying in the first set of criminal proceedings. 11. During the proceedings a number of witnesses, including pentiti (former mafiosi who have decided to cooperate with the authorities), were examined. 12. In a judgment of 22 September 1999, the Palmi Assize Court imposed five life sentences on the applicant and ordered him to serve three years of his sentence in solitary confinement. It imposed an additional sentence of a total of seventy years' imprisonment on him. The decision was based on statements by the pentiti, which were considered to be accurate and credible and were corroborated by other evidence. 13. The applicant appealed. 14. From 2000 the applicant was subject to a restricted prison regime, provided for by section 41 bis of Law no. 354 of 26 July 1975 (known as “the Prison Organisation Act”), which, among other things, limited his contact with the outside world. Accordingly, the applicant was no longer brought to the hearing room from prison. He was, however, able to participate in the hearings of 21 February and 15 June 2001 and 5 March 2002 by means of an audiovisual link with the hearing room. 15. By a judgment of 5 March 2002, the Reggio di Calabria Assize Court of Appeal acquitted the applicant of one of the charges of murder. It found that the offences committed by the applicant were part of a single criminal design (unico disegno criminoso) and reduced his sentence to one life sentence and solitary confinement for two years. 16. The applicant appealed on points of law. He complained, inter alia, of a failure on the part of the Assize Court of Appeal to give reasons for its finding that, despite a number of gaps in their evidence, the prosecution witnesses were credible. With regard to the murder of M.L., the applicant observed that part of the evidence adduced by the prosecution was that the police had found a P38 Walther pistol inside a car parked near land belonging to him. In the first set of criminal proceedings, however, the applicant had been acquitted of the charge of carrying that pistol. Moreover, that circumstantial evidence did not in any way establish that he had given orders to murder M.L. 17. The applicant did not allege that there had been a violation of the right to a fair trial on account of the nature of his participation in the appeal hearings. 18. In a judgment of 26 February 2004, the text of which was deposited at the registry on 3 June 2004, the Court of Cassation dismissed the applicant's appeal. It held that the Assize Court of Appeal had given logical and proper reasons for its decision on all the disputed issues. 19. Law no. 11 of 7 January 1998 introduced, among the implementing provisions of the Code of Criminal Procedure (CCP), a new Article 146 bis which, in its relevant parts and after the amendments introduced by Law no. 4 of 19 January 2001, is now worded as follows: “1. In proceedings concerning one of the offences provided for in Article 51, paragraph 3 bis, and Article 407, paragraph 2, sub-paragraph (a), no. 4 of the Code [that is, mainly Mafia-related and other serious offences], a person who, in any capacity, is detained in a prison shall participate in the hearings at a distance [a distanza] in the following cases: (a) where there are serious requirements of public safety or order; (b) where the proceedings are particularly complex and participation at a distance is deemed necessary in order to avoid delays. In considering the requirement of avoiding delays in the proceedings, regard shall also be had to the fact, where applicable, that other proceedings are pending at the same time against the same defendant before different courts. 1 bis. Besides the cases provided for in paragraph 1, participation at a distance shall also be arranged in proceedings brought against a detainee who has been the subject of the measures provided for in section 41 bis, paragraph 2, of Law no. 354 of 26 July 1975 ... 2. The decision to order participation at a distance shall be taken, if necessary of their own motion, by the president of the trial court or of the Assize Court ... during the preliminary measures stage, or by the judge ... during the proceedings. The order shall be communicated to the parties and defence counsel at least ten days prior to the hearing. 3. Where an order is made for participation at a distance, an audiovisual link shall be activated between the hearing room and the place of detention so that the persons present in both places can see each other clearly and simultaneously and hear what is being said. If the measure is ordered in respect of several defendants who are being detained, in any capacity, in different places, each [of them] shall, by means of the same arrangement, be able to see and hear the others. 4. Defence counsel or his or her replacement must always be able to be present where the accused is situated. Defence counsel, or his or her replacement present in the hearing room, and the accused shall be able to confer confidentially, by means of appropriate technical equipment. 5. The place from which the accused is connected by audiovisual link to the hearing room shall be regarded as an extension of the hearing room [è equiparato all'aula d'udienza]. 6. An officer of the court qualified to assist the judge ... shall be present at the place where the accused is situated and shall certify the latter's identity and officially note that there is no impediment to or restriction on the exercise of his or her rights and entitlements. He or she shall also certify that the provisions of paragraph 3 and the second sentence of paragraph 4 have been complied with, and, if the examination takes place, that the precautions have been taken to ensure the lawfulness thereof ... To that end he shall consult, if necessary, the accused and his counsel. ... 7. If it becomes necessary during the proceedings to arrange a confrontation between witnesses or identification of the accused or another measure requiring him to be observed in person, the judge shall, if he considers it necessary, after hearing the parties, order that the accused be present in the hearing room for the time necessary to comply with that measure.” 20. According to the Constitutional Court (order no. 483 of 26 November 2002), participation at a distance seeks to achieve the following aims: (a) protect public order in the event of possible acts of intimidation by the accused against other parties in the trial; (b) prevent the transfer of the accused from prison to the hearing room from becoming an opportunity to renew contact with the criminal organisations to which they belong; and (c) expedite the conduct of particularly complex and long trials, which often take place in different courts. The Constitutional Court has also stated that the system introduced by Law no. 11 of 7 January 1998 guarantees the right of persons accused of exceptionally serious offences to participate in their trial, while weighing that right against the duty to protect the public and ensure the proper conduct of the trial (ordinato svolgimento dei processi). 21. In its judgment no. 342 of 22 July 1999, the Constitutional Court held that participation at a distance was compatible with the “right to a defence”, as guaranteed by Article 24 § 2 of the Constitution. It stated that it could not accept the idea that only the physical presence of the accused in the hearing room would ensure the effectiveness of this right, since the Constitution required only the personal and conscious (consapevole) participation of the defendant in the proceedings. Article 146 bis of the implementing provisions of the CCP was not limited to indicating the technical means necessary to installing a link between the hearing room and the place of detention, but required that certain “results” be attained and, in particular, the “effective” participation of the accused in the proceedings with a view to ensuring the proper exercise of his right to a defence. There were also legislative provisions guaranteeing contact between the accused, the right of defence counsel to be present where the defendant was situated and the ability of the accused and his counsel to communicate with each other. The judge had the power and the duty to ensure that the technical means installed were appropriate to the aims sought to be achieved and could, if necessary, order the accused to be present in the hearing room. In the opinion of the Constitutional Court, the fact that the new provisions departed from “tradition” did not upset the balance and dynamics of a trial that, on the contrary, remained substantively unchanged. 22. For the same reasons, the Constitutional Court found that the system introduced by Law no. 11 of 7 January 1998 could not be deemed to be contrary to Article 6 of the Convention, a provision which required, among other things, compliance with the “reasonable time” requirement, in particular for accused persons in detention. 23. Articles 9 and 10 of the Second Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters provide: “1. If a person is in one Party's territory and has to be heard as a witness or expert by the judicial authorities of another Party, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 7. [...]” “1. If a person is in one Party's territory and has to be heard as a witness or expert by judicial authorities of another Party, the latter may, where its national law so provides, request the assistance of the former Party to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 6. [...]” 24. Articles 10 and 11 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, signed in Brussels on 29 May 2000, provide: “1. If a person is in one Member State's territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where it is not desirable or possible for the person to be heard to appear in its territory in person, request that the hearing take place by videoconference, as provided for in paragraphs 2 to 8. [...]” “1. If a person is in one Member State's territory and has to be heard as a witness or expert by the judicial authorities of another Member State, the latter may, where its national law so provides, request assistance of the former Member State to enable the hearing to take place by telephone conference, as provided for in paragraphs 2 to 5. [...]” 25. In its Resolution of 23 November 1995 on the protection of witnesses in the fight against international organised crime, the European Council called on Member States to guarantee proper protection of witnesses. To that end it indicated, among other things, that “one of the forms of protection to be envisaged is the possibility of giving evidence in a place other than that in which the person being prosecuted is situated through the use, if necessary, of audiovisual methods, subject to observance of the adversary principle as interpreted in the case-law of the European Court of Human Rights”. The European Council went on to state that: “... In order to facilitate the use of audiovisual methods, the following points, in particular, should be taken into consideration: 1. In principle, it should be envisaged that the hearing may be conducted under the legal and practical conditions of the requesting State only. 2. If the legislation of either State allows for the witness to be assisted by an adviser during the hearing, it should be possible for such assistance to be arranged in the territory of the State in which the witness is situated; 3. Translation costs and the cost of using audiovisual methods should be borne by the requesting State, unless otherwise arranged with the State to which the request is addressed.”