CASE OF ISGRÒ v. ITALY
Preliminary objection rejected (non-exhaustion);Preliminary objection rejected (victim);No violation of Art. 6-1+6-3-d
C. Russo
8. Mr Salvatore Isgrò was born at Messina. When the Court last received information concerning his whereabouts, he was in detention at the prison of Porto Azzurro (Livorno). 9. On 11 November 1978 the Monza public prosecutor’s office ordered Mr Isgrò’s arrest together with that of a number of other persons. They were suspected of involvement in the kidnapping and death of a young man, G., who had been kidnapped on 9 November 1978 and who, on the following day, had been found dead from an overdose of chloroform. The public prosecutor’s decision was based on the statements of a certain Mr D., who had been asked by the organisers of the kidnapping to assist them by keeping watch over the victim, but had decided to co-operate with the carabinieri. 10. When interviewed by the carabinieri on 11, 13 and 16 November 1978 and by the public prosecutor on 14 November, Mr D. provided information on the preparation of the kidnapping and on the contacts which he claimed to have had at the time with Mr Isgrò and one Mr L. He also alleged that he had been threatened because he had not wanted to participate in the crime. 11. On 16 November 1978, in the course of an examination by the public prosecutor, the applicant admitted knowing Mr D., but denied having asked him to take part in the offence. He also rejected the suggestion that there was any enmity between them. 12. Before the investigating judge, who questioned him on 23 February 1979, he referred to disputes with Mr D.; he added that the latter had asked him to take part in a kidnapping, but that he had refused to do so. On 10 April 1979 the same judge interviewed Mr D., who confirmed his earlier statements and gave various details concerning his conversations with Mr Isgrò and Mr L., including a meeting on 10 November 1978 with Mr Isgrò. 13. Again on 10 April 1979 the investigating judge confronted Mr D. with the applicant who, in accordance with the provisions in force at the time (see paragraph 23 below), was not assisted by his lawyer. Each of them repeated his own version of events. The record of the confrontation reads as follows (translation from the Italian): "... D. to Isgrò ...: I confirm the statements made to the carabinieri and to the investigating judge. I confirm in particular that at the beginning of October you asked me to take part in a kidnapping. Before, a few months ago, you had talked generally about the possibility of earning a bit of money. Isgrò ... to D.: You’re not telling the truth, it’s not true that I proposed to you to take part in a kidnapping. It was exactly the opposite which happened. You came to my place - I don’t remember exactly when - and you proposed that I guard a kidnap victim. I didn’t even want to listen to you and I threw you out. D. to Isgrò ...: That’s all lies, what I said before is true. Isgrò ... to D.: You’re saying what you’ve just said because you’ve been angry with me ever since, when your aunt M. asked me, I stopped a fight between you and a certain N. D. to Isgrò ...: I also confirm that I met you, the day of the kidnapping, in the ... bar of Malnate. On that occasion you explained to me what I would have to do during the detention of the kidnap victim and in particular how I should get him to write the messages to his family. You also told me that I should be seen out and about as usual. Isgrò ... to D.: In the days before my arrest, I did go once to the ... bar in Malnate with my family and an aunt whom I had taken to Switzerland for a trip. If I remember correctly it was in fact on 9 November, I don’t remember the time. I had accompanied my aunt who was to telephone to Sicily, but I don’t remember at all having seen you and even less having spoken to you. D. to Isgrò ...: I repeat what I stated before, I saw you shortly before twelve o’clock. Isgrò ... to D.: It’s not true, I was not in the bar at that time, I don’t remember exactly where I was, but I remember that I only went to the bar in the afternoon. D. to Isgrò ...: I confirm that you know the L. brothers and in particular that I saw P. L. go to your house. Isgrò ... to D.: It’s absolutely untrue that I knew the L. [brothers]. You’re lying. D. to Isgrò ...: I repeat that you yourself told me that a few years ago you used to go to the Pizzeria ... in Malnate with the L. [brothers]. Isgrò ... to D.: That’s all lies. You want to destroy me because you’ve never forgiven me for not helping you in your crooked deals. ... D. to Isgrò ...: I myself have seen you in the company of the L. [brothers] at the Pizzeria ... in Malnate. ... Isgrò ... to D.: I repeat that that’s not true. I’ve never seen the L. [brothers]. ..." On the same day the investigating judge organised a confrontation between Mr D. and another accused, namely one of the L. brothers. 14. On 31 May 1979 the investigating judge questioned for one last time Mr D., who maintained his allegations. 15. On 9 January 1980 the judge committed Mr Isgrò and nine co-accused for trial in the Monza District Court. 16. At the public prosecutor’s request, the President of the District Court ordered Mr D. to be called as a witness at the hearing on 19 February 1980. On being informed, on 14 February, that it had been impossible to trace the person concerned for several months, he ordered that inquiries be made immediately. These inquiries were conducted in four separate places, but they were unsuccessful although Mr D. telephoned the carabinieri on 1 March and the investigating judge on 3 March. 17. The trial was spread over twelve hearings from 18 February to 4 March 1980. The court heard, among others, the applicant, his wife and a number of witnesses. However, it refused to call a person who had already been questioned by the investigating judge: counsel for Mr Isgrò sought to have this witness called in connection with evidence concerning Mr D.’s conduct on the day of the kidnapping, of which the person in question had informed Mrs Isgrò according to the latter’s statements before the court; but in the court’s view the evidence available to it deprived this testimony of any importance. As Mr D. remained impossible to trace, the records of each of his interviews and of the confrontation of 10 April 1979 (see paragraph 13 above) were read out on 26 February. This had been ordered by the court in pursuance of Article 462, first paragraph, sub-paragraph 3, of the Code of Criminal Procedure (see paragraph 24 below), notwithstanding the objections of the lawyers of two of the applicant’s co-accused. 18. On 29 February and 3 March, the applicant’s lawyer indicated that his client’s wife had seen Mr D. in the street at Malnate, where he had been staying for several days at his mother’s house. The President of the District Court ordered that the police be informed of this immediately. 19. On 5 March 1980 the District Court sentenced Mr Isgrò to thirty years’ imprisonment. In the grounds of its judgment, it relied on Mr D.’s statements rather than the applicant’s denials. 20. The applicant appealed and sought to have Mr D. called as a witness. The Milan Court of Appeal directed that the latter appear on 25 November 1981 - two days after its first hearing -, but further searches effected in two places, one of which had been indicated, once again, by Mrs Isgrò, were to no avail. 21. On 1 December 1981 the court upheld the verdict of guilty but reduced the sentence to twenty years. It based its decision in particular on the earlier statements by Mr D. In its view, he was in hiding for fear of reprisals, a fear which it considered to be fully justified. 22. Mr Isgrò appealed on points of law. He complained that he had been convicted on the basis of testimony obtained during the investigation, without his lawyer having had the opportunity to examine the witness in question on his statements, and challenged the use of such evidence in the trial proceedings. The Court of Cassation dismissed the appeal on 23 March 1984 on the ground that it was intended to contest the assessment of evidence made by the lower courts, which assessment was not open to appeal. 23. Article 304 bis of the Code of Criminal Procedure in force at the time enumerated the steps in the investigation at which an accused’s lawyer could be present; it did not mention confrontations between the accused and a witness. 24. Article 462 provided a list of the statements which the trial courts were authorised, subject to certain conditions, to have read out at the trial; they included statements obtained by an investigating judge during a confrontation between a witness and an accused. Under sub-paragraph 3 of the first paragraph, such statements might be read out where, inter alia, a witness could no longer be traced.