ACCARDI AND OTHERS v. ITALY
Inadmissible
The applicants, Mr Salvatore Accardi, Mr Stefano Manzini and Mrs Teresa D’Antonio, are Italian nationals, born in 1943, 1963 and 1960 respectively. The first two applicants are currently in Florence Prison, while the third is in Monza Prison. Mr Accardi was represented before the Court by Mr L. Bisori, a lawyer practising in Florence; Mr Manzini and Mrs D’Antonio were represented by Mr M. Fusi, also a lawyer practising in Florence. The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant and the third applicant are the parents of minors X and Y, twins born on 25 December 1991. The parents live apart. The third applicant lives with the second applicant. Following a complaint lodged by the first applicant alleging that X and Y had been subjected to sexual abuse by their mother and the second applicant, the Florence Criminal Court decided to place the children in State care. In October 1997 the court ordered that the children be returned to the family of their father, who was living with Mrs P at the time. However, in January 1998 X informed his schoolteacher that Y had been subjected to further abuse, this time by the children’s father. Proceedings were instituted against the three applicants on charges of sexual abuse of minors. On 21 September 1998 the Florence investigating judge (giudice per le indagini preliminari - GIP) decided to hear evidence from X and Y in camera (incidente probatorio). The hearing took place on 16 October 1998 in the presence of the investigating judge and a psychologist, Mrs B. The applicants, their lawyers and the representative of the Public Prosecutor’s Office were in an adjacent room behind a two-way mirror, enabling them to hear what was being said and observe the conduct of the witnesses. During the hearing Mrs B. put some of the questions to the children. X confirmed having been abused by their mother and the second applicant, and gave details of the sexual abuse to which Y had allegedly been subjected by their father. Y was also questioned by Mrs B. However, when the psychologist asked her to specify what used to happen with her parents, Y replied that she was too ashamed. The investigating judge then decided to leave the hearing room and follow the questioning from behind the two-way mirror. Y subsequently gave some details concerning the abuse perpetrated by the first and second applicants. When she became very upset, the questioning was discontinued. On 25 May 1999 the applicants were committed for trial before the Florence Criminal Court. The proceedings took place in camera. Three hearings were held, on 10, 16 and 18 November 1999. Numerous witnesses who had been in contact with X and Y at the time of the events were questioned. The court ordered the videotape of the hearing of 16 October 1998 to be produced. In a judgment of 18 November 1999 the Florence Criminal Court sentenced each of the applicants to twelve years’ imprisonment. The court noted that there were two types of evidence that weighed against the defendants. First, there were the statements made by X and Y at the hearing on 16 October 1998; second, there was the evidence of the persons questioned during the proceedings, who had second-hand knowledge of the events detailed by the victims, having been taken into their confidence. While the victims’ statements ranked first in importance, the hearsay evidence had a role to play in checking the consistency of the versions provided by X and Y with the other particular circumstances of the case. In the view of the court, the details provided by X and Y demonstrated that they had indeed been subjected to abuse, as it would have been difficult for children so young to invent details of sexual practices known only to adults. As the videotape of the hearing of 16 October 1998 showed, X and Y, through their general demeanour and the nature of their replies, displayed signs of profound unease and great distress when confronted with the memory of their painful experiences. Their statements therefore constituted strong evidence in the case against the defendants. It further emerged from the evidence given during the proceedings that X and Y had recounted details of the abuse to third parties, such as members of their host family, the first applicant’s live-in partner, a home teacher and a schoolteacher. According to the schoolteacher and to a social worker, X and Y showed signs of disturbed behaviour, a finding confirmed by memoranda from the social services department. This evidence corroborated the children’s statements, with the result that the applicants were found guilty. The applicants appealed. The first applicant confined himself to challenging the assessment of the evidence and the interpretation of the statements made by X and Y. The second and third applicants argued that, in the course of the proceedings at first instance, the court had declined to hear evidence from an expert witness instructed by the defence who would, they contended, have been able to shed light on the circumstances surrounding the children’s statements, in order to establish whether and to what extent those circumstances might have influenced their version of events. Furthermore, the court should have ordered a psychologist’s report on the children to determine whether they showed signs of having been sexually abused. The second and third applicants also requested that the children be questioned again in the presence of child psychology experts, not just about the abuse itself, but also about the existing family relationships. According to the second and third applicants, it was likely that the children, whose early years had been spent in a difficult and precarious situation, had simply witnessed the sexual practices of the adults and later imagined that they had themselves been involved in the acts in question. This explanation was especially plausible, they argued, given that the questions put by Mrs B. at the hearing of 16 October 1998 had been of a leading nature. They further submitted that the investigating judge had prevented the parties from asking the children questions. The second and third applicants appended a psychologist’s report to their notice of appeal which concluded that, in view of the manner in which they had been obtained, the children’s statements should not have been used as the sole basis for convicting the defendants. By a judgment of 28 September 2000, the Florence Court of Appeal reduced the third applicant’s sentence to nine years’ imprisonment. It upheld the remainder of the decision at first instance. The Court of Appeal observed that the versions of X and Y contradicted each other in places. In addition, the children had been vague as to when exactly the abuse had taken place. However, the defence’s argument that the children had confused reality and imagination was unfounded, bearing in mind the nature of the details recounted by X and Y and the signs of distress they had manifested during and after the hearing. Furthermore, the children could not have been expected to open up completely to a psychologist they had just met and to a judge – the investigating judge – whom they did not know. Accordingly, the statements made at the hearing of 16 October 1998 needed to be assessed in conjunction with the details confided by the children to people around them, who had been questioned during the proceedings at first instance. That process placed the contradictions in context and proved that the abuse complained of had been perpetrated by the applicants. The Court of Appeal observed further that there were no grounds for doubting the children’s ability to describe their experiences, and that their statements had been, by and large, consistent. In the light of those considerations, there had been no need for a psychologist’s report on the children, who had already been kept under observation for a long time by a psychologist employed by the social services department. A further hearing would have been no more than a re-run of the hearing of 16 October 1998. In that connection the Court of Appeal stressed that the applicants and their lawyers had taken part in the hearing in question and had had the opportunity of asking the children any questions they considered necessary to their defence, through the intermediary of the investigating judge. As to the manner in which the hearing of 16 October 1998 had been conducted, the Court of Appeal noted that Mrs B. had adapted her approach to the degree of participation and cooperation of the children. The psychologist had thus put more specific questions to X, who appeared to be more open than Y. The applicants lodged an appeal on points of law. The first applicant complained first of all that the questioning of X and Y had been invalid, observing that the questions had been put to the children by Mrs B. rather than by the investigating judge, and had been put in a leading manner. The first applicant further submitted that the Court of Appeal had lent excessive weight to the evidence of persons with only second-hand knowledge of the facts, and argued that the reasons given for the judgment of 28 September 2000 had been illogical and contradictory. The second and third applicants objected that their convictions had been unsafe, on the ground that no decisive proof had been produced. They referred in particular to the decision not to question the victims again or to order a psychologist’s report on the children and another one to determine whether X and Y had been fit to give evidence. The second and third applicants also alleged that the reasons given for the judgment of 28 September 2000 had been illogical and contradictory, as their guilt had not been proven beyond any reasonable doubt. In a judgment of 22 February 2002, deposited with the registry on 24 April 2002, the Court of Cassation dismissed the applicants’ appeals, finding that the Court of Appeal had given logical and correct reasons for its findings on all the points at issue. The Court of Cassation observed that it had been for the trial and appeal courts to decide whether further evidence (such as the expert reports requested by the defendants) was required, and that a further hearing of the children had not been necessary. Moreover, the questioning of X and Y had been conducted by the investigating judge, not by Mrs B.; the fact that some questions had been put directly by the psychologist was irrelevant. In any event, under Italian law, failure to adhere to the methods laid down for questioning did not invalidate the proceedings.