CASE OF LUCÀ v. ITALY
Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Elisabeth Palm;Gaukur Jörundsson
8. The applicant, who was born in 1955, is currently detained in Cosenza Prison. 9. On 25 October 1992 N. and C. were arrested by carabinieri from Roccella Jonica (Reggio di Calabria) and found to be in possession of cocaine. 10. On 25 and 26 October 1992 N. was questioned, initially by the carabinieri, and subsequently by the Locri public prosecutor (Reggio di Calabria). He said that he had obtained part of the drugs from C. for his own use; the remainder belonged solely to C. He added that on the day of their arrest, C. had accompanied him to certain people’s homes to try to buy drugs. After the evening meal they had gone to the applicant’s home. The applicant had said that he was prepared to supply them with five hundred grams of cocaine to be delivered a few days later, as he was not willing to accept deferred payment and could not go out after 8 p.m. to get the drugs. 11. N. was questioned by the carabinieri as someone who was helping them with their inquiries (“persona che puó riferire circostanze utili ai fini delle indagini”), not as an accused. For that reason, he was not assisted by a lawyer. However, the Locri public prosecutor subsequently decided that N. should be regarded as a “suspect” (“indagato”), and therefore questioned him in that capacity. 12. By an order of 12 February 1993 the Locri investigating judge committed the applicant, C. and two other suspects, Mr A. and Mr T., for trial before Locri Criminal Court for drug trafficking. A. was also accused of unlawful possession of an offensive weapon. Separate proceedings were instituted against N. for possession of drugs. 13. At the hearing on 17 July 1993, N. was called to give evidence as a person accused in connected proceedings (“imputato in procedimento connesso”). However, he chose to remain silent as he was entitled to do by virtue of Article 210 of the Code of Criminal Procedure (hereafter, “the CCP”). 14. The lawyers acting for the accused argued that Article 513 of the CCP was unconstitutional since it was incompatible with Articles 3 and 24 of the Italian Constitution – which guaranteed the equality of citizens before the law and the right to defend oneself at all stages of the proceedings – and Article 6 of the Convention. They observed in particular that, as construed by the Constitutional Court, Article 513 of the CCP laid down that if a person accused in connected proceedings exercised his right to remain silent, the court could read and use any statements made by him to the public prosecutor or to the investigating judge during the investigation. As a result, the accused was deprived of any opportunity of examining that person or of having him examined. 15. On the same day the Criminal Court dismissed as manifestly unfounded the objection that the provision was unconstitutional and ordered that the record of the statements made by N. to the public prosecutor should be read out. It noted that the statutory right to remain silent was intended to protect an accused, who could not be required to make statements that could be used in evidence against him. Further, the rule that statements made during preliminary investigations could be read and used had been established by the Constitutional Court itself in its judgment no. 254 of 3 June 1992. 16. In a judgment of 7 March 1994, which was lodged with the registry on 1 June 1994, Locri Criminal Court sentenced the applicant to eight years and four months’ imprisonment and a fine of 54,000,000 Italian lire (approximately 183,000 French francs). C., A. and T. were also given prison sentences ranging between six and nine years. 17. The Criminal Court noted at the outset that the main evidence against the accused was the statements which N. had made to the public prosecutor, since the statements made to the carabinieri were inadmissible under Article 513 of the CCP. It also observed that having regard to N.’s personality and the spontaneity and precision with which his statements had been made, his depositions should be regarded as credible. The Criminal Court noted that N. had recognised a photograph of the applicant and had given an accurate description of his home and the route followed to get there. In addition, the applicant already had previous convictions under the drug-trafficking legislation and was under judicial supervision (sorveglianza speciale). He was prohibited from leaving his home after dusk, and that was a possible explanation for his unwillingness to go out after 8 p.m. Furthermore, the amount of cocaine found in C.’s possession showed that C. had contacts with drug dealers and meant that N’s account of his visit to the applicant’s home was probably true. It also confirmed that the negotiations that had started were genuine. 18. On 13 July 1994 the applicant appealed to Reggio di Calabria Court of Appeal. He contested, inter alia, the reliability of N.’s statements and complained that they had been made in breach of the adversarial principle and in the absence of a judge or of the defendants’ lawyers. 19. In a judgment of 7 November 1994, Reggio di Calabria Court of Appeal followed in substance the arguments set out in the order of 17 July 1993. It upheld the decision of the court below concerning the applicant, while reducing A.’s sentence. 20. On 18 February 1995 the applicant and his co-accused appealed to the Court of Cassation. T. relied, inter alia, on Article 6 § 3 (d) of the Convention contending that N’s statements should have been declared inadmissible in evidence. 21. In a judgment of 19 October 1995, which was lodged with the registry on 3 November 1995, the Court of Cassation dismissed the appeals of the applicant and his co-accused, holding that the grounds given by the Court of Appeal for its decision on all the disputed issues relating to the drug-trafficking count had been reasonable and correct. It overruled the impugned decision with regard to A.’s conviction for being unlawfully in possession of an offensive weapon and remitted the case to Catanzaro Court of Appeal. 22. The Court of Cassation observed among other things that Article 6 § 3 (d) of the Convention concerned “ the examination of witnesses, who ... are required to tell the truth, not the examination of the accused, who are entitled to defend themselves by remaining silent or even by lying”. Further, since all States that were party to the Convention had an obligation by relevant domestic legislation to regulate the examination of witnesses, it was “obvious that ... when a witness refused to give evidence, statements made to the public prosecutor ... had to be produced for the court’s file”. 23. The circumstances in which statements made by an accused or co-accused before trial may be admitted in evidence are set out in Article 513 of the CCP. 24. As initially worded, the first paragraph Article 513 of the CCP provided that statements made by an accused before trial could by admitted in evidence by the trial court if the accused failed to appear or refused to repeat the statement. 25. On the other hand, the second paragraph of Article 513 concerned statements made before trial by persons accused in connected proceedings. Unlike the position under the first paragraph, the second paragraph did not permit the trial court to admit such statements in evidence if the accused exercised his right to remain silent. 26. In its judgment no. 254 of 1992, the Constitutional Court declared the second paragraph of Article 513 unconstitutional on the ground that, as the statements referred to therein could not be admitted in evidence at trial if the accused in connected proceedings remained silent, there was an unjustified difference in treatment between those statements and statements of the type referred to in the first paragraph. The Constitutional Court thereby enabled trial courts to admit statements made by a co-accused in connected proceedings, irrespective of whether the person against whom they were being used had been given the opportunity of examining the maker of the statement or of having him examined at any stage in the proceedings. Furthermore, the Constitutional Court made no reference to the procedural safeguards embodied in Article 6 of the Convention or to the criteria established by the Court’s case-law. 27. By Law no. 267 of 7 August 1997 Parliament amended Article 513 with a view to making it consistent with the adversarial principle. In substance, statements made by a co-accused or by an accused in connected proceedings could no longer be used against another person without his consent if the maker of the statement exercised his right to remain silent. 28. However, in its judgment no. 361 of 2 November 1998 the Constitutional Court again declared Article 513 unconstitutional, this time in its entirety. It held that precluding the trial court from admitting such statements in evidence if the maker remained silent entailed a risk that the court would be deprived of evidence that could assist it in reaching its decision, a risk that was dependent solely on the decision of the maker of the statements. 29. Following that decision Parliament adopted the Constitutional Amendment Act no. 2 of 23 November 1999 whereby the principle of a fair trial was embodied in the Constitution itself. Article 111 of the Constitution, as now worded, reads: “1. Jurisdiction shall be exercised through fair proceedings, conducted in accordance with rules of procedure. 2. All proceedings shall be conducted in compliance with the principles of adversarial process and equality of arms before a neutral and impartial court. The right to be tried within a reasonable time shall be guaranteed by law. 3. In criminal proceedings, the law shall guarantee that the person accused of an offence shall be informed promptly and in confidence of the nature and grounds of the charge against him; that he shall have adequate time and facilities for the preparation of his defence; that he shall be given an opportunity before the court to examine or to have examined anyone giving evidence against him, to obtain the attendance and examination of any defence witnesses on the same conditions as witnesses called by the prosecution and to obtain the production of any other evidence in his favour; and that he will have the assistance of an interpreter if he cannot understand or speak the language used at the trial. 4. The principle of adversarial process shall be observed during criminal proceedings with regard to the examination of evidence. An accused’s guilt cannot be established on the basis of statements made by a person who has freely and wilfully eluded examination by the accused or his lawyer. 5. Rules shall be made governing the circumstances in which adversarial examination of the evidence shall be dispensed with either because the accused has consented, or because there is due evidence that such examination is objectively impossible or that there has been unlawful conduct.” 30. In Law no. 35 of 25 February 2000, the Italian parliament clarified how the amended Article 111 of the Constitution would apply to trials under way. In particular, the former rules continue to apply in certain circumstances. Further, a consolidating bill implementing that constitutional amendment was adopted by Parliament on 14 February 2001. Among other things, this implementing legislation amends Article 513 CCP by providing that if the maker of statements made before the trial exercises his right not to answer questions, his statements will, as a general rule, be admissible in evidence if the parties agree. However, the former rules will continue to apply in at least some circumstances to trials that are under way.