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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> ISGRÒ v. ITALY - 11339/85 [1991] ECHR 13 (19 February 1991)
URL: http://www.bailii.org/eu/cases/ECHR/1991/13.html
Cite as: [1991] ECHR 13
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In the Isgrò case*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention")** and the
relevant provisions of the Rules of Court***, as a Chamber composed
of the following judges:
Mr R. Ryssdal, President,
Mr J. Cremona,
Mr F. Gölcüklü,
Mr L.-E. Pettiti,
Mr C. Russo,
Mr J. De Meyer,
Mrs E. Palm,
Mr I. Foighel,
Mr A.N. Loizou,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 27 September 1990 and
21 January 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
* The case is numbered 1/1990/192/252. The first number is the
case's position on the list of cases referred to the Court in
the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to
the Court since its creation and on the list of the
corresponding originating applications to the Commission.
** As amended by Protocol No. 8, which came into force on
1 January 1990.
*** The amendments to the Rules of Court which came into force on
1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court on 16 February 1990 by the
European Commission of Human Rights ("the Commission"), within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 11339/85) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Salvatore Isgrò, on 12 September 1984.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Italy recognised
the compulsory jurisdiction of the Court (Article 46)
(art. 46). The object of the request was to obtain a decision as
to whether the facts of the case disclosed a breach by the
respondent State of its obligations under Article 6 paras. 1 and 3
(d) (art. 6-1, art. 6-3-d).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30). On 19 March 1990 the President
of the Court granted him leave to use the Italian language (Rule 27
para. 3).
3. The Chamber to be constituted included ex officio Mr C. Russo,
the elected judge of Italian nationality (Article 43 of the
Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 3 (b)). On 26 March 1990, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr J. Cremona, Mr F. Gölcüklü,
Mr L.-E. Pettiti, Mr J. De Meyer, Mrs E. Palm, Mr I. Foighel and Mr
A.N. Loizou (Article 43 in fine of the Convention and Rule 21 para.
4) (art. 43).
4. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent
of the Italian Government ("the Government"), the Delegate of the
Commission and the applicant's lawyer on the need for a written
procedure (Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the Government's memorial on 31
July 1990. On 25 July and 14 September Mr Isgrò's lawyer and the
Commission's Delegate informed the Registrar that they would submit
their observations at the hearing.
5. Having consulted, through the Registrar, those who would be
appearing before the Court, the President, on 3 August 1990, set
down the hearing for 24 September 1990 (Rule 38).
6. On 21 August the applicant filed his claims for just
satisfaction. On 31 August and 5 September the Commission produced
the file on the proceedings before it, as requested by the
Registrar on the President's instructions.
7. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, seconded to
the Diplomatic Legal Service of the
Ministry of Foreign Affairs, Co-Agent,
Mr M. Guardata, magistrato, seconded to the
legislative bureau of the Ministry of Justice,Counsel;
(b) for the Commission
Mr E. Busuttil, Delegate;
(c) for the applicant
Mr G. Pisauro, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives.
AS TO THE FACTS
I. The circumstances of the case
A. The prosecution and the investigation
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.
B. The trial
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.
II. The relevant provisions of the Code of Criminal Procedure
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.
PROCEEDINGS BEFORE THE COMMISSION
25. Mr Isgrò applied to the Commission on 12 September 1984. He
complained that he had been convicted on the basis of statements by
a witness who could not be traced during the trial and whom his
lawyer had never had the opportunity to examine. He relied on
paragraphs 1, 2 and 3 (d) of Article 6 (art. 1, art. 6-2,
art. 6-3-d) of the Convention.
26. The Commission declared the application (no. 11339/85)
admissible on 9 November 1988. In its report of 14 December 1989
(Article 31) (art. 31), it expressed the opinion by ten votes to
three that there had been a violation of Article 6 paras. 1 and 3
(d) (art. 6-1, art. 6-3-d) of the Convention. The full text of the
Commission's opinion and of the two dissenting opinions contained
in the report is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will
appear only with the printed version of the judgment (volume 194-A
of Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
27. At the hearing on 24 September 1990 the Government confirmed
the submission put forward in their memorial, in which they
requested the Court to hold "that there has been no violation of
the Convention in the present case".
AS TO THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
28. The Government stressed that neither Mr Isgrò nor his lawyer
had objected to the reading out at the trial of Mr D.'s statements
made to the investigating judge. They developed two arguments from
this: in the first place, that the applicant had failed to exhaust
the domestic remedies; secondly, that he could not claim to be a
"victim" within the meaning of Article 25
(art. 25) of the Convention.
29. The first submission, which had already been raised before the
Commission, is unfounded because an objection of the kind referred
to would not have constituted in this instance a sufficient and
effective remedy, since the Monza District Court had dismissed
similar objections formulated by two of the applicant's co-accused
(see paragraph 17 above).
As regards the second preliminary objection, the Government
are estopped from relying thereon because they did not first raise
it before the Commission. As nothing prevented them from raising
that objection at the outset, it is immaterial that it was founded
on a fact which was also adduced in order to plead the failure to
exhaust domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)
30. The applicant complained that the Monza District Court and the
Milan Court of Appeal had convicted him on the basis of the
statements made to the investigating judge by the witness Mr D.,
who had been untraceable during the trial and whom his lawyer had
never had the opportunity to examine. On this account they had, he
alleged, infringed Article 6 (art. 6), according to which:
"1. In the determination ... of any criminal charge against
him, everyone is entitled to a fair ... hearing ... by [a] ...
tribunal ... .
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
(d) to examine or have examined witnesses against him and to
obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;
... "
The Commission subscribed to this view, while the Government
disputed it.
31. The admissibility of evidence is primarily a matter for
regulation by national law and, as a rule, it is for the national
courts to assess the evidence before them. The Court's task is to
ascertain whether the proceedings considered as a whole, including
the way in which evidence was taken, were fair (see, as the most
recent authority, the Delta judgment of
19 December 1990, Series A no. 191-A, p. 15, para. 35).
As this is the fundamental point at issue and since the
guarantees in paragraph 3 of Article 6 (art. 6-3) are specific
aspects of the right to a fair trial set forth in paragraph 1
(art. 6-1), the Court will consider the complaint under the two
provisions taken together (ibid., p. 15, para. 34).
32. The Commission accepted that the Italian authorities had tried
to establish the whereabouts of Mr D. with the aim of securing his
attendance in Court as a witness.
In their memorial the Government stressed that the
thoroughness of the searches carried out by the authorities was not
in doubt. The applicant did not file a memorial but at the hearing
his counsel criticised the way in which those searches had been
conducted.
The evidence before the Court does not, however, disclose any
negligence in this respect. In deciding whether the applicant had
a fair trial, the Court must accordingly proceed on the basis that
it was not possible to obtain Mr D.'s presence at the trial.
33. The applicant also maintained that Mr D. had been involved in
the crime and became a witness with regard to Italian law only
subsequently. Although Mr D. did not give evidence in person
either at first instance or on appeal, the Court takes the view
that, for the purposes of Article 6 para. 3 (d) (art. 6-3-d), he
should be regarded as a witness - a term to be given an autonomous
interpretation (see, inter alia, the above-mentioned Delta
judgment, Series A no. 191-A, p. 15, para. 34) - because the
national courts took account of his statements, which were read out
at the trial.
34. All the evidence must normally be produced in the presence of
the accused at a public hearing with a view to adversarial
argument. However, the use as evidence of statements obtained at
the pre-trial stage is not in itself inconsistent with
paragraphs 3 (d) and 1 of Article 6 (art. 6-3-d, art. 6-1),
provided the rights of the defence have been respected. As a rule,
these rights require that the defendant be given an adequate and
proper opportunity to challenge and question a witness against him,
either when he was making his statements or at a later stage of the
proceedings (see the Kostovski judgment of 20 November 1989, Series
A no. 166, p. 20, para. 41, and the above-mentioned Delta judgment,
Series A no. 191-A, p. 16,
para. 36).
35. It is therefore necessary to determine whether Mr Isgrò had
such opportunity. In this respect the present dispute differs from
other cases heard by the Court (the Kostovski judgment, cited
above, Series A no. 166, p. 20, paras. 42-43; the Windisch judgment
of 27 September 1990, Series A no. 186, pp. 10-11, paras. 27-29;
the Delta judgment, cited above, Series A
no. 191-A, p. 16, paras. 36-37).
In the first place the witness was not anonymous: Mr D.'s
identity was known both to the defence and to the investigating
judge as well as to the first-instance and appeal courts. In
particular, the investigating judge had questioned him several
times on matters concerning the applicant and the co-accused; he
had also organised two confrontations intended to compare the
earlier statements of Mr D. with those respectively of Mr Isgrò and
a co-accused.
Secondly, the confrontation of 10 April 1979 enabled the
applicant to put questions directly to Mr D. and to discuss his
statements, thus providing the investigating judge with all the
information which was capable of casting doubt on the witness's
credibility. Mr Isgrò was also able to repeat in person his claims
before the first-instance court and the Court of Appeal.
Finally, although the District Court and the Court of Appeal
were unable, despite their efforts, to take evidence from Mr D. in
person (see paragraph 32 above), that does not mean that they based
their decision solely on the statements made by him to a judge,
whose impartiality has not been contested. They also had regard to
other testimony, including that of the applicant's wife, and to the
observations submitted by the applicant during the investigation
and at the trial.
36. It is indeed true that the applicant's lawyer did not attend
the confrontation in question, and was prevented from so doing by
Article 304 bis of the Code of Criminal Procedure (see paragraph 23
above), but the public prosecutor was likewise absent. In the case
under examination the purpose of the confrontation did not render
the presence of Mr Isgrò's lawyer indispensable; since it was open
to the applicant to put questions and to make comments himself, he
enjoyed the guarantees secured under Article 6 para. 3 (d)
(art. 6-3-d) to a sufficient extent.
The Court draws attention to the fact that during the trial
the applicant's lawyer was able to carry out his brief with
knowledge not only of Mr D.'s allegations, but also of his
identity; he could thus challenge the accuracy of those allegations
and the credibility of the witness himself.
37. In sum, any limitations which may have been imposed on the
rights of the defence were not such as to deprive him of a fair
trial. It follows that there has been no violation of
paragraph 3 (d) of Article 6, taken in conjunction with
paragraph 1 (art. 6-3-d, art. 6-1).
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that the objection of a failure to exhaust domestic
remedies is unfounded;
2. Dismisses, on the ground of estoppel, the objection that the
applicant lacked the status of "victim";
3. Holds that there has been no violation of paragraph 3 (d) of
Article 6 of the Convention, taken in conjuncton with
paragraph 1 thereof (art. 6-3-d, art. 6-1).
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 19 February
1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar