FONDAZIONE GAETANO MORELLI
FONDAZIONE XXXXXXX XXXXXXX
CENTRO PER LO STUDIO DEL DIRITTO PROCESSUALE INTERNAZIONALE E DEL DIRITTO PROCESSUALE CIVILE INTERNAZIONALE
IL GIUSTO PROCESSO NELLA PROSPETTIVA DELLA CONVENZIONE EUROPEA DEI DIRITTI DELL’UOMO
Corso seminariale – Crotone, 11-15 settembre 2006
Il giusto processo amministrativo – Il contraddittorio nel processo amministrativo (prof. avv. Xxxxx Xxxxx)
Giurisdizione e “fairness” processuale penale – Contraddittorio e diritto alla prova nel processo penale (xxxx. Xxxxxx Xxxxxxx)
FONDAZIONE XXXXXXX XXXXXXX
CENTRO PER LO STUDIO DEL DIRITTO PROCESSUALE INTERNAZIONALE E DEL DIRITTO PROCESSUALE CIVILE INTERNAZIONALE
IL GIUSTO PROCESSO NELLA PROSPETTIVA DELLA CONVENZIONE EUROPEA DEI DIRITTI DELL’UOMO
Corso seminariale – Crotone, 11-15 settembre 2006
Il giusto processo amministrativo – Il contraddittorio nel processo amministrativo (prof. avv. Xxxxx Xxxxx)
Giurisdizione e “fairness” processuale penale – Contraddittorio e diritto alla prova nel processo penale (xxxx. Xxxxxx Xxxxxxx)
Corte eur. dir. uomo, sent. 21 febbraio 1975, Golder c. Regno Unito (n. 4451/70) p. 3
Corte eur. dir. uomo, sent. 1° ottobre 1982, Piersack x. Xxxxxx (n. 8692/79).................................. p. 14 Corte eur. dir. uomo, sent. 6 dicembre 1988, Barberà, Messegué e Jabardo x. Xxxxxx (n. 10590/83) ...... p. 23 Corte eur. dir. uomo, sent. 7 agosto 1996, Xxxxxxxxxxx e Xxxxxxxxxx v. Italia (n. 19874/92) ............. p. 45 Corte eur. dir. uomo, sent. 25 febbraio 1997, Z. c. Finlandia (n. 22009/93)................................... p. 54 Corte eur. dir. uomo, sent. 23 aprile 0000, Xxx Xxxxxxxx x. Xxxxx Xxxxx (x. 21363/93)................... p. 73 Corte eur. dir. uomo, sent. 5 dicembre 2002 (n. 34896/97), Craxi c. Italia.................................... p. 88 Corte eur. dir. uomo (GC), sent. 15 dicembre 0000, Xxxxxxxxx x. Xxxxx (x. 73797/01)................ p. 102 Corte di giustizia delle Comunità europee, sent. 9 novembre 1995, causa C-465/93, Atlanta......... p. 132 Corte costituzionale, sent. 6 luglio 2004 n. 204, Villa Xxxxx Xxx............................................... p. 138
Cassazione (sez. un. civ.), sent. 22 luglio 1999 n. 500, Vitali .................................................... p. 153
Corte europea dei diritti dell’uomo, sent. 21 febbraio 1975,
Golder c. Regno Unito (ric. n. 4451/70) (1)
[omissis]
AS TO THE FACTS
9. The facts of the case may be summarised as follows.
10. In 0000, Xx. Xxxxxx Xxxxx Xxxxxx, x Xxxxxx Xxxxxxx citizen born in 1923, was convicted in the United Kingdom of robbery with violence and was sentenced to fifteen years’ imprisonment. In 1969, Golder was serving his sentence in Xxxxxxxxx Prison on the Isle of Wight.
11. On the evening of 24 October 1969, a serious disturbance occurred in a recreation area of the prison where Golder happened to be.
On 25 October, a prison officer, Mr. Xxxxx, who had taken part and been injured in quelling the dis- turbance, made a statement identifying his assailants, in the course of which he declared: “Xxxxxx was screaming ... and Xxxxx, Xxxxxx and another prisoner whom I know by sight, I think his name is Xxxxxx ... were swinging vicious blows at me.”
12. On 26 October Golder, together with other prisoners suspected of having participated in the disturbance, was segregated from the main body of prisoners. On 28 and 30 October, Golder was interviewed by police officers. At the second of these interviews he was informed that it had been alleged that he had assaulted a prison officer; he was warned that “the facts would be reported in order that consideration could be given whether or not he would be prosecuted for assaulting a prison officer causing bodily harm”.
13. Golder wrote to his Member of Parliament on 25 October and 1 November, and to a Chief Xxxxxxxxx on 4 November 1969, about the disturbance of 24 October and the ensuing hardships it had entailed for him; the prison governor stopped these letters since Golder had failed to raise the subject-matter thereof through the authorised channels beforehand.
14. In a second statement, made on 5 November 1969, Xxxxx qualified as follows what he had said earlier: “When I mentioned the prisoner Golder, I said ‘I think it was Golder’, who was present with Xxxxxx, Xxxxx and Xxxxxx, when the three latter were attacking me. If it was Golder and I certainly remember seeing him in the immediate group who were screaming abuse and generally making a nuisance of themselves, I am not certain that he made an attack on me. Later when Xxxxxx and Xxxxx grabbed me, Xxxxxx was also present but I cannot remember who the other in- mate was, but there were several there one of whom stood out in particular but I cannot put a name to him.”
On 7 November, another prison officer reported that: “... during the riot of that night I spent the majority of the time in the T.V. room with the prisoners who were not participating in the distur- bance. 740007, Golder was in this room with me and to the best of my knowledge took no part in the riot. His presence with me can be borne out by officer ... who observed us both from the out- side.”
Golder was returned to his ordinary cell the same day.
l5. Meanwhile, the prison authorities had been considering the various statements, and on 10 November prepared a list of charges which might be preferred against prisoners, including Golder, for offences against prison discipline. Entries relating thereto were made in Xxxxxx’x prison record. No such charge was eventually preferred against him and the entries in his prison record were
(1) Testo tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
marked “charges not proceeded with”. Those entries were expunged from the prison record in 1971 during the examination of the applicant’s case by the Commission.
16. On 20 March 1970, Golder addressed a petition to the Secretary of State for the Home De- partment, that is, the Home Secretary. He requested a transfer to some other prison and added: “I understand that a statement wrongly accusing me of participation in the events of 24th October last, made by Officer Xxxxx, is lodged in my prison record. I suspect that it is this wrong statement that has recently prevented my being recommended by the local parole board for parole. I would re- spectfully request permission to consult a solicitor with a view to taking civil action for libel in re- spect of this statement Alternatively, I would request that an independent examination of my re-
cord be allowed by Mrs. G.M. Xxxxxx who is magistrate. I would accept her assurance that this
statement is not part of my record and be willing to accept then that the libel against me has not materially harmed me except for the two weeks I spent in the separate cells and so civil action would not be then necessary, providing that an apology was given to me for the libel ”
17. In England the matter of contacts of convicted prisoners with persons outside their place of detention is governed by the Xxxxxx Xxx 0000, as amended and subordinate legislation made under that Act.
Section 47, sub-section I, of the Prison Act provides that “the Secretary of State may make rules for the regulation and management of prisoners ... and for the ... treatment discipline and control of
persons required to be detained ”
The rules made by the Home Secretary in the exercise of this power are the Prison Rules 1964, which were laid before Parliament and have the status of a Statutory Instrument. The relevant pro- visions concerning communications between prisoners and persons outside prison are contained in Rules 33, 34 and 37 as follows:
“Letters and visits generally
Rule 33 – (1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime in the interests of any persons, impose restrictions, either generally or in a par- ticular case, upon the communications to be permitted between a prisoner and other persons. (2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State. ...
Personal letters and visits
Rule 34 (8) A prisoner shall not be entitled under this Rule to communicate with any person in
connection with any legal or other business, or with any person other than a relative or friend, ex- cept with the leave of the Secretary of State. ...
Legal advisers
Rule 37 – (1) The legal adviser of a prisoner in any legal proceedings, civil or criminal, to which the prisoner is a party shall be afforded reasonable facilities for interviewing him in connection with those proceedings, and may do so out of hearing but in the sight of an officer. (2) A pris- oner’s legal adviser may, with the leave of the Secretary of State, interview the prisoner in connec- tion with any other legal business in the sight and hearing of an officer.”
18. On 6 April 1970, the Home Office directed the prison governor to notify Golder of the reply to his petition of 20 March as follows: “The Secretary of State has fully considered your petition but is not prepared to grant your request for transfer, nor can he find grounds for taking any action in regard to the other matters raised in your petition.”
19. Before the Commission, Golder submitted two complaints relating respectively to the stop- ping of his letters (as mentioned above at paragraph 13) and to the refusal of the Home Secretary to permit him to consult a solicitor. On 30 March 1971, the Commission declared the first complaint inadmissible, as all domestic remedies had not been exhausted, but accepted the second for consid- eration of the merits under Articles 6 para. 1 and 8 of the Convention.
20. Golder was released from prison on parole on 12 July 1972.
21. In their report, the Commission expressed the opinion:
- unanimously, that Article 6 para. 1 guarantees a right of access to the courts;
- unanimously, that in Article 6 para. 1, whether read alone or together with other Articles of the Convention, there are no inherent limitations on the right of a convicted prisoner to institute proceedings and for this purpose to have unrestricted access to a lawyer; and that consequently the restrictions imposed by the present practice of the United Kingdom authorities are inconsistent with Article 6 para. 1;
- by seven votes to two, that Article 8 para. 1 is applicable to the facts of the present case;
- that the same facts which constitute a violation of Article 6 para. 1 constitute also a violation of Article 8 (by eight votes to one, as explained to the Court by the Principal Delegate on 12 Octo- ber 1974).
The Commission furthermore expressed the opinion that the right of access to the courts guaranteed by Article 6 para. 1 is not qualified by the requirement “within a reasonable time”. In the applic a- tion bringing the case before the Court, the Government made objection to this opinion of the Commission but stated in their memorial that they no longer wished to argue the issue.
22. The following fina l submissions were made to the Court at the oral hearing on 12 October 1974 in the afternoon.
- for the Government:
“The United Kingdom Government respectfully submit to the Court that Article 6 para. 1 of the Convention does not confer on the applicant a right of access to the courts, but confers only a right in any proceedings he may institute to a hearing that is fair and in accordance with the other re- quirements of the paragraph. The Government submit that in consequence the refusal of the United Kingdom Government to allow the applicant in this case to consult a lawyer was not a violation of Article 6. In the alternative, if the Court finds that the rights conferred by Article 6 include in gen- eral a right of access to courts, then the United Kingdom Government submit that the right of ac- cess to the courts is not unlimited in the case of persons under detention, and that accordingly the imposing of a reasonable restraint on recourse to the courts by the applicant was permissible in the interest of prison order and discipline, and that the refusal of the United Kingdom Government to allow the applicant to consult a lawyer was within the degree of restraint permitted, and therefore did not constitute a violation of Article 6 of the Convention.
The United Kingdom Government further submit that control over the applicant’s correspondence while he was in prison was a necessary consequence of the deprivation of his liberty, and that the action of the United Kingdom Government was therefore not a violation of Article 8 para. 1, and that the action of the United Kingdom Government in any event fell within the exceptions provided by Article 8 para. 2, since the restriction imposed was in accordance with law, and it was within the power of appreciation of the Government to judge that the restriction was necessary in a democ- ratic society for the prevention of disorder or crime.
In the light of these submissions, Mr. President, I respectfully ask this honourable Court, on behalf of the United Kingdom Government, to hold that the United Kingdom Government have not in this case committed a breach of Article 6 or Article 8 of the European Convention on Human Rights and Fundamental Freedoms.”
- for the Commission:
“The questions to which the Court is requested to reply are the following:
(1) Does Article 6 para. 1 of the European Convention on Human Rights secure to persons desiring to institute civil proceedings a right of access to the courts?
(2) If Article 6 para. 1 secures such a right of access, are there inherent limitations relating to this right, or its exercise, which apply to the facts of the present case?
(3) Can a convicted prisoner who wishes to write to his lawyer in order to institute civil proceed- ings rely on the protection given in Article 8 of the Convention to respect for correspondence?
(4) According to the answers given to the foregoing questions, do the facts of the present case dis- close the existence of a violation of Article 6 and of Article 8 of the European Convention on Hu- man Rights?”
AS TO THE LAW
I. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1
23. Paragraphs 73, 99 and 110 of the Commission’s report indicate that the Commission con- sider unanimously that there was a violation of Article 6 para. 1 . The Government disagree with this opinion.
24. Article 6 para. 1 provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of jus- tice.”
25. In the present case the Court is called upon to decide two distinct questions arising on the text cited above:
(i) Is Article 6 para. 1 limited to guaranteeing in substance the right to a fair trial in legal pro- ceedings which are already pending, or does it in addition secure a right of access to the courts for every person wishing to commence an action in order to have his civil rights and obligations de- termined?
(ii) In the latter eventuality, are there any implied limitations on the right of access or on the ex- ercise of that right which are applicable in the present case?
A. ON THE “RIGHT OF ACCESS”
26. The Court recalls that on 20 March 1970 Golder petitioned the Home Secretary for permis- sion to consult a solicitor with a view to bringing a civil action for libel against prison officer Xxxxx and that his petition was refused on 6 April (paragraphs 16 and 18 above).
While the refusal of the Home Secretary had the immediate effect of preventing Golder from con- tacting a solicitor, it does not at all follow from this that the only issue which can arise in the pre- sent case relates to correspondence, to the exclusion of all matters of access to the courts.
Clearly, no one knows whether Golder would have persisted in carrying out his intention to sue Xxxxx if he had been permitted to consult a solicitor. Furthermore, the information supplied to the Court by the Government gives reason to think that a court in England would not dismiss an action brought by a convicted prisoner on the sole ground that he had managed to cause the writ to be is- sued - through an attorney for instance - without obtaining leave from the Home Secretary under Rules 33 para. 2 and 34 para. 8 of the Prison Rules 1964, which in any event did not happen in the present case.
The fact nonetheless remains that Golder had made it most clear that he intended “taking civil ac- tion for libel”; it was for this purpose that he wished to contact a solicitor, which was a normal pre- liminary step in itself and in Xxxxxx’x case probably essential on account of his imprisonment. By forbidding Golder to make such contact, the Home Secretary actually impeded the launching of the contemplated action. Without formally denying Golder his right to institute proceedings before a court, the Home Secretary did in fact prevent him from commencing an action at that time, 1970. Xxxxxxxxx in fact can contravene the Convention just like a legal impediment.
It is true that - as the Government have emphasised - on obtaining his release Golder would have been in a position to have recourse to the courts at will, but in March and April 1970 this was still rather remote and hindering the effective exercise of a right may amount to a breach of that right, even if the hindrance is of a temporary character.
The Court accordingly has to examine whether the hindrance thus established violated a right guar- anteed by the Convention and more particularly by Article 6, on which Golder relied in this respect.
27. One point has not been put in issue and the Court takes it for granted: the “right” which Golder wished, rightly or wrongly, to invoke against Xxxxx before an English court was a “civil right” within the meaning of Article 6 para. 1.
28. Again, Article 6 para. 1 does not state a right of access to the courts or tribunals in express terms. It enunciates rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term. It is the duty of the Court to ascertain, by means of interpretation, whether access to the courts constitutes one factor or aspect of this right.
29. The submissions made to the Court were in the first place directed to the manner in which the Convention, and particularly Article 6 para. 1, should be interpreted. The Court is prepared to consider, as do the Government and the Commission, that it should be guided by Articles 31 to 33 of the Vienna Convention of 23 May 1969 on the Law of Treaties. That Convention has not yet en- tered into force and it specifies, at Article 4, that it will not be retroactive, but its Articles 31 to 33 enunciate in essence generally accepted principles of international law to which the Court has al- ready referred on occasion. In this respect, for the interpretation of the European Convention ac- count is to be taken of those Articles subject, where appropriate, to “any relevant rules of the or- ganization” - the Council of Europe - within which it has been adopted (Article 5 of the Vienna Convention).
30. In the way in which it is presented in the “general rule ” in Article 3l of the Vienna Conven- tion, the process of interpretation of a treaty is a unity, a single combined operation; this rule, closely integrated, places on the same footing the various elements enumerated in the four para- graphs of the Article.
31. The terms of Article 6 para. 1 of the European Convention, taken in their context, provide reason to think that this right is included among the guarantees set forth.
32. The clearest indications are to be found in the French text, first sentence. In the field of “con- testations civiles” (civil claims) everyone has a right to proceedings instituted by or against him be- ing conducted in a certain way - “équitablement” (fairly), “publiquement” (publicly), “dans un dé- lai raisonnable ” (within a reasonable time), etc. - but also and primarily “à ce que sa cause soit en- tendue” (that his case be heard) not by any authority whatever but “par un tribunal” (by a court or tribunal) within the meaning of Article 6 para. 1 (Xxxxxxxxx judgment of 16 July 1971, Series A no. 13, p. 39, para. 95). The Government have emphasised rightly that in French “cause” may mean “procès qui se plaide” (LITTRÉ, Dictionnaire de la langue française, tome I, p. 509, 5o). This, xx- xxxxx, is not the sole ordinary sense of this noun; it serves also to indicate by extension “l’ensemble des intérêts à soutenir, à faire prévaloir” (Xxxx Xxxxxx, Dictionnaire alphabétique et analogique de la langue française, tome I, p. 666, II-2o). Similarly, the “contestation” (claim) gen- erally exists prior to the legal proceedings and is a concept independent of them. As regards the phrase “tribunal indépendant et impartial établi par la loi” (independent and impartial tribunal es- tablished by law), it conjures up the idea of organisation rather than that of functioning, of institu- tions rather than of procedure.
The English text, for its part, speaks of an “independent and impartial tribunal established by law”. Moreover, the phrase “in the determination of his civil rights and obligations”, on which the Gov- ernment have relied in support of their contention, does not necessarily refer only to judicial pro- ceedings already pending; as the Commission have observed, it may be taken as synonymous with “wherever his civil rights and obligations are being determined” (paragraph 52 of the report). It too would then imply the right to have the determination of disputes relating to civil rights and obliga- tions made by a court or “tribunal”.
The Government have submitted that the expressions “fair and public hearing” and “within a rea- sonable time”, the second sentence in paragraph 1 (“judgment”, “trial”), and paragraph 3 of Article 6 clearly presuppose proceedings pending before a court.
While the right to a fair, public and expeditious judicial procedure can assuredly apply only to pro- ceedings in being, it does not, however, necessarily follow that a right to the very institution of such proceedings is thereby excluded; the Delegates of the Commission rightly underlined this at paragraph 21 of their memorial. Besides, in criminal matters, the “reasonable time” may start to run
from a date prior to the seisin of the trial court, of the “tribunal” competent for the “determination
... of (the) criminal charge” (Wemhoff judgment of 27 June 1968, Series A no. 7, pp. 26-27, para. 19; Neumeister judgment of 27 June l968, Series A no. 8, p. 41, para. 18; Xxxxxxxxx judgment of 16 July 1971, Series A no. 13, p. 45, para. 110). It is conceivable also that in civil matters the reason- able time may begin to run, in certain circumstances, even before the issue of the writ commencing proceedings before the court to which the plaintiff submits the dispute.
33. The Government have furthermore argued the necessity of relating Article 6 para. 1 to Arti- cles 5 para. 4 and 13. They have observed that the latter provide expressly or a right of access to the courts; the omission of any corresponding clause in Article 6 para. 1 seems to them to be only the more striking. The Government have also submitted that if Article 6 para. 1 were interpreted as providing such a right of access, Articles 5 para. 4 and 13 would become superfluous.
The Commission’s Delegates replied in substance that Articles 5 para. 4 and 13, as opposed to Ar- ticle 6 para. 1, are “accessory” to other provisions. Those Articles, they say, do not state a specific right but are designed to afford procedural guarantees, “based on recourse”, the former for the “right to liberty”, as stated in Article 5 para. 1, the second for the whole of the “rights and freedoms as set forth in this Convention”. Article 6 para. 1, they continue, is intended to protect “in itself” the “right to a good administration of justice”, of which “the right that justice should be administered” constitutes “an essential and inherent element”. This would serve to explain the contrast between the wording of Artic le 6 para. 1 and that of Articles 5 para. 4 and 13.
This reasoning is not without force even though the expression “right to a fair (or good) administra- tion of justice”, which sometimes is used on account of its conciseness and convenience (for exam- ple, in the Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25), does not appear in the text of Article 6 para. 1, and can also be understood as referring only to the working and not to the organisation of justice.
The Court finds in particula r that the interpretation which the Government have contested does not lead to confounding Article 6 para. 1 with Articles 5 para. 4 and 13, nor making these latter provi- sions superfluous. Article 13 speaks of an effective remedy before a “national authority” (“instance nationale ”) which may not be a “tribunal” or “court” within the meaning of Articles 6 para. 1 and 5 para. 4. Furthermore, the effective remedy deals with the violation of a right guaranteed by the Convention, while Articles 6 para. 1 and 5 para. 4 cover claims relating in the first case to the exis- tence or scope of civil rights and in the second to the lawfulness of arrest or detention. What is more, the three provisions do not operate in the same field. The concept of “civil rights and obliga- tions” (Article 6 para. 1) is not co-extensive with that of “rights and freedoms as set forth in this Convention” (Article 13), even if there may be some overlapping. As to the “right to liberty” (Arti- cle 5), its “civil” character is at any rate open to argument (Neumeister judgment of 27 June 1968, Series A no. 8, p. 43, para. 23; Matznetter judgment of 10 November 1969, Series A no. 10, p. 35, para. 13; Xx Xxxxx, Xxxx and Versyp judgment of 18 June 1971, Series A no. 12, p. 44, para. 86). Besides, the requirements of Article 5 para. 4 in certain respects appear stricter than those of Arti- cle 6 para. 1, particularly as regards the element of “time”.
34. As stated in Article 31 para. 2 of the Vienna Convention, the preamble to a treaty forms an integral part of the context. Furthermore, the preamble is generally very useful for the determina- tion of the “object” and “purpose” of the instrument to be construed.
In the present case, the most significant passage in the Preamble to the European Convention is the signatory Governments declaring that they are “resolved, as the Governments of European coun- tries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration” of 10 December 1948.
In the Government’s view, that recital illustrates the “selective process” adopted by the draftsmen: that the Convention does not seek to protect Human Rights in general but merely “certain of the Rights stated in the Universal Declaration”. Articles 1 and 19 are, in their submission, directed to the same end.
The Commission, for their part, attach great importance to the expression “rule of law” which, in their view, elucidates Article 6 para. 1.
The “selective” nature of the Convention cannot be put in question. It may also be accepted, as the Government have submitted, that the Preamble does not include the rule of law in the object and purpose of the Convention, but points to it as being one of the features of the common spiritual heritage of the member States of the Council of Europe. The Court however considers, like the Commission, that it would be a mistake to see in this reference a merely “more or less rhetorical reference”, devoid of relevance for those interpreting the Convention. One reason why the signa- tory Governments decided to “take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration” was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith (Article 31 para. 1 of the Vienna Convention) to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6 para. 1 according to their context and in the light of the object and purpose of the Conven- tion.
This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a Member (Article 66 of the Convention) refers in two places to the rule of law: first in the Preamble, where the signatory Governments affirm their devo- tion to this principle, and secondly in Article 3 which provides that “every Member of the Council of Europe must accept the principle of the rule of law ...”
And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.
35. Article 31 para. 3 (c) of the Vienna Convention indicates that account is to be taken, together with the context, of “any relevant rules of international law applicable in the relations between the parties”. Among those rules are general principles of law and especially “general principles of law recognized by civilized nations” (Article 38 para. 1 (c) of the Statute of the International Court of Justice). Incidentally, the Legal Committee of the Consultative Assembly of the Council of Europe foresaw in August 1950 that “the Commission and the Court must necessarily apply such princi- ples” in the execution of their duties and thus considered it to be “unnecessary” to insert a specific clause to this effect in the Convention (Documents of the Consultative Assembly, working papers of the 1950 session, Vol. III, no. 93, p. 982, para. 5).
The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally “recognised” fundamental principles of law; the same is true of the principle of in- ternational law which forbids the denial of justice. Article 6 para. 1 must be read in the light of these principles.
Were Article 6 para. 1 to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil ac- tions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences whic h are repugnant to the afore- mentioned principles and which the Court cannot overlook (Xxxxxxx judgment of 1 July 1961, Se- ries A no. 3, p. 52, and Delcourt judgment of 17 January 1970, Series A no. 11, pp. 14-15).
It would be inconceivable, in the opinion of the Court, that Article 6 para. 1 should describe in de- tail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings.
36. Taking all the preceding considerations together, it follows that the right of access consti- tutes an element which is inherent in the right stated by Article 6 para. 1. This is not an extensive interpretation forcing new obligations on the Contracting States: it is based on the very terms of the first sentence of Article 6 para. 1 read in its context and having regard to the object and purpose of the Convention, a lawmaking treaty (see the Wemhoff judgment of 27 June 1968, Series A no. 7, p. 23, para. 8), and to general principles of law.
The Court thus reaches the conclusion, without needing to resort to “supplementary means of inter- pretation” as envisaged at Article 32 of the Vienna Convention, that Article 6 para. 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a
court or tribunal. In this way the Article embodies the “right to a court”, of which the right of ac- cess, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only. To this are added the guarantees laid down by Article 6 para. 1 as regards both the organisa- tion and composition of the court, and the conduct of the proceedings. In sum, the whole makes up the right to a fair hearing. The Court has no need to ascertain in the present case whether and to what extent Article 6 para. 1 further requires a decision on the very substance of the dispute (Eng- lish “determination”, French “décidera”).
B. ON THE “IMPLIED LIMITATIONS”
37. Since the impediment to access to the courts, mentioned in paragraph 26 above, affected a right guaranteed by Article 6 para. 1, it remains to determine whether it was nonetheless justifiable by virtue of some legitimate limitation on the enjoyment or exercise of that right.
38. The Court considers, accepting the views of the Commission and the alternative submission of the Government, that the right of access to the courts is not absolute. As this is a right which the Convention sets forth (see Articles 13, 14, 17 and 25) without, in the narrower sense of the term, defining, there is room, apart from the bounds delimiting the very content of any right, for limita- tions permitted by implication.
The first sentence of Article 2 of the Protocol of 20 March 1952, which is limited to providing that “no person shall be denied the right to education”, raises a comparable problem. In its judgment of 23 July 1968 on the merits of the case relating to certain aspects of the laws on the use of la nguages in education in Belgium, the Court ruled that: “The right to education ... by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and re- sources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention.” (Series A no. 6, p. 32, para. 5).
These considerations are all the more valid in regard to a right which, unlike the right to education, is not mentioned in express terms.
39. The Government and the Commission have cited examples of regulations , and especially of limitations, which are to be found in the national law of states in matters of access to the courts, for instance regulations relating to minors and persons of unsound mind. Although it is of less frequent occurrence and of a very different kind, the restriction complained of by Golder constitutes a fur- ther example of such a limitation.
It is not the function of the Court to elaborate a general theory of the limitations admissible in the case of convicted prisoners, nor even to rule in abstracto on the compatibility of Rules 33 para. 2, 34 para. 8 and 37 para. 2 of the Prison Rules 1964 with the Convention. Seised of a case which has its origin in a petition presented by an individual, the Court is called upon to pronounce itself only on the point whether or not the application of those Rules in the present case violated the Conven- tion to the prejudice of Golder (Xx Xxxxxx judgment of 27 March 1962, Series A no. 4, p. 26).
40. In this connection, the Court confines itself to noting what follows.
In petitioning the Home Secretary for leave to consult a solicitor with a view to suing Xxxxx for li- bel, Golder was seeking to exculpate himself of the charge made against him by that prison officer on 25 October 1969 and which had entailed for him unpleasant consequences, some of which still subsisted by 20 March 1970 (paragraphs 12, 15 and 16 above). Furthermore, the contemplated le- gal proceedings would have concerned an incident which was connected with prison life and had occurred while the applicant was imprisoned. Finally, those proceedings would have been directed against a member of the prison staff who had made the charge in the course of his duties and who was subject to the Home Secretary’s authority.
In these circumstances, Golder could justifiably wish to consult a solicitor with a view to instituting legal proceedings. It was not for the Home Secretary himself to appraise the prospects of the action contemplated; it was for an independent and impartial court to rule on any claim that might be brought. In declining to accord the leave which had been requested, the Home Secretary failed to respect, in the person of Golder, the right to go before a court as guaranteed by Article 6 para. 1.
II. ON THE ALLEGED VIOLATION OF ARTICLE 8
41. In the opinion of the majority of the Commission (paragraph 123 of the report) “the same facts which constitute a violation of Article 6 para. 1 constitute also a violation of Article 8 “. The Government disagree with this opinion.
42. Article 8 of the Convention reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
43. The Home Secretary’s refusal of the petition of 20 March 1970 had the direct and immediate effect of preventing Golder from contacting a solicitor by any means whatever, including that which in the ordinary way he would have used to begin with, correspondence. While there was cer- tainly neither stopping nor censorship of any message, such as a letter, which Golder would have written to a solicitor – or vice-versa - and which would have been a piece of correspondence within the meaning of paragraph 1 of Article 8 , it would be wrong to conclude therefrom, as do the Gov- ernment, that this text is inapplicable. Impeding someone from even initiating correspondence con- stitutes the most far-reaching form of “interference” (paragraph 2 of Article 8) with the exercise of the “right to respect for correspondence”; it is inconceivable that that should fall outside the scope of Article 8 while mere supervision indisputably falls within it. In any event, if Golder had at- tempted to write to a solicitor notwithstanding the Home Secretary’s decision or without requesting the required permission, that correspondence would have been stopped and he could have invoked Article 8; one would arrive at a paradoxical and hardly equitable result, if it were considered that in complying with the requirements of the Prison Rules 1964 he lost the benefit of the protection of Article 8.
The Court accordingly finds itself called upon to ascertain whether or not the refusal of the appli- cant’s petition violated Article 8.
44. In the submission of the Government, the right to respect for correspondence is subject, apart from interference covered by paragraph 2 of Article 8, to implied limitations resulting, inter alia , from the terms of Article 5 para. 1 (a): a sentence of imprisonment passed after conviction by a competent court inevitably entails consequences affecting the operation of other Articles of the Convention, including Article 8.
As the Commission have emphasised, that submission is not in keeping with the manner in which the Court dealt with the issue raised under Article 8 in the “Vagrancy” cases (Xx Xxxxx, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93). In addition and more par- ticularly, that submission conflicts with the explicit text of Article 8. The restrictive formulation used at paragraph 2 (“There shall be no interference ... except such as ...”) leaves no room for the concept of implied limitations. In this regard, the legal status of the right to respect for correspon- dence, which is defined by Article 8 with some precision, provides a clear contrast to that of the right to a court (paragraph 38 above).
45. The Government have submitted in the alternative that the interference complained of satis- fied the explicit conditions laid down in paragraph 2 of Article 8.
It is beyond doubt that the interference was “in accordance with the law”, that is Rules 33 para. 2 and 34 para. 8 of the Prison Rules 1964 (paragraph 17 above).
The Court accepts, moreover, that the “necessity” for interference with the exercise of the right of a convicted prisoner to respect for his correspondence must be appreciated having regard to the ordi- nary and reasonable requirements of imprisonment. The “prevention of disorder or crime”, for ex- ample, may justify wider measures of interference in the case of such a prisoner than in that of a person at liberty. To this extent, but to this extent only, lawful deprivation of liberty within the meaning of Article 5 does not fail to impinge on the application of Article 8.
In its judgment of l8 June 1971 cited above, the Court held that “even in cases of persons detained for vagrancy” (paragraph 1 (e) of Article 5) - and not imprisoned after conviction by a court – the
competent national authorities may have “sufficient reason to believe that it (is) ‘necessary’ to im- pose restrictions for the purpose of the prevention of disorder or crime, the protection of health or morals, and the protection of the rights and freedoms of others”. However, in those particular cases there was no question of preventing the applicants from even initiating correspondence; there was only supervision which in any event did not apply in a series of instances, including in particular correspondence between detained vagrants and the counsel of their choice (Series A no. 12, p. 26, para. 39, and p. 45, para. 93).
In order to show why the interference complained of by Golder was “necessary”, the Government advanced the prevention of disorder or crime and, up to a certain point, the interests of public safety and the protection of the rights and freedoms of others. Even having regard to the power of appreciation left to the Contracting States, the Court cannot discern how these considerations, as they are understood “in a democratic society”, could oblige the Home Secretary to prevent Golder from corresponding with a solicitor with a view to suing Xxxxx for libel. The Court again lays stress on the fact that Golder was seeking to exculpate himself of a charge made against him by that prison officer acting in the course of his duties and relating to an incident in prison. In these cir- cumstances, Golder could justifiably wish to write to a solicitor. It was not for the Home Secretary himself to appraise - no more than it is for the Court today - the prospects of the action contem- plated; it was for a solicitor to advise the applicant on his rights and then for a court to rule on any action that might be brought.
The Home Secretary’s decision proves to be all the less “necessary in a democratic society” in that the applicant’s correspondence with a solicitor would have been a preparatory step to the institution of civil legal proceedings and, therefore, to the exercise of a right embodied in another Article of the Convention, that is, Article 6.
The Court thus reaches the conclusion that there has been a violation of Article 8.
III. AS TO THE APPLICATION OF ARTICLE 50 OF THE CONVENTION
46. Article 50 of the Convention provides that if the Court finds, as in the present case, “that a decision ... taken” by some authority of a Contracting State “is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of (that State) allows only partial reparation to be made for the consequences of this decision”, the Court “shall, if neces- sary, afford just satisfaction to the injured party”.
The Rules of Court state that when the Court “finds that there is a breach of the Convention, it shall give in the same judgment a decision on the application of Article 50 of the Convention if that question, after being raised under Rule 47 bis, is ready for decision; if the question is not ready for decision”, the Court “shall reserve it in whole or in part and shall fix the further procedure” (Rule 50 para. 3, first sentence, read together with Rule 48 para. 3).
At the hearing in the afternoon of 11 October 1974, the Court invited the representatives, under Rule 47 bis, to present their observations on the question of the application of Article 50 of the Convention in this case. Those observations were submitted at the hearing on the following day.
Furthermore, in reply to a question from the President of the Court immediately following the read- ing of the Commission’s final submissions, the Principal Delegate confirmed that the Commission were not presenting, nor making any reservation as to the presentation of, a request for just satisfac- tion on the part of the applicant.
The Court considers accordingly that the above question, which was duly raised by the Court, is ready for decision and should therefore be decided without further delay. The Court is of opinion that in the circumstances of the case it is not necessary to afford to the applicant any just satisfac- tion other than that resulting from the finding of a violation of his rights.
FOR THESE REASONS, THE COURT,
1. Holds by nine votes to three that there has been a breach of Article 6 para. 1;
2. Holds unanimously that there has been a breach of Article 8;
3. Holds unanimously that the preceding findings amount in themselves to adequate just satis- faction under Article 50.
[omissis]
Judges Xxxxxxxx, Xxxxx and Xxx Xxxxxx Xxxxxxxxxxx have annexed their separate opinions to the pre- sent judgment, in accordance with Article 51 para. 2 of the Convention and Rule 50 para. 2 of the Rules of Court.
[omissis]
Corte europea dei diritti dell’uomo, sent. 1° ottobre 1982,
Piersack x. Xxxxxx (ric. n. 8692/79) (1)
[omissis]
AS TO THE FACTS
I. THE PARTICULAR FACTS OF THE CASE
7. The applicant, a Belgian national born in 1948, is a gunsmith. He is in the process of serving in Mons prison a sentence of eighteen years’ hard labour imposed on him on 10 November 1978 by the Brabant Assize Court for murder.
8. During the night of 22-23 April 1976, two Frenchmen, Mr. Xxxxx s Gros and Mr. Xxxxxx Xx- xxx, were killed by revolver shots in Brussels whilst they were in a motor-car with Mr. Xxxxxxxx, Mr. Xxxxxxxxxxxx Xxxxxxxx (against whom proceedings were subsequently discontinued) and a Por- tuguese national, Mr. Xxxx Xxxxx Xxxxxx de Xxxxx Gravo.
A. FROM THE OPENING OF PROCEEDINGS UNTIL REFERENCE OF THE CASE TO THE COURT OF
CASSATION
9. On 9 July 1976, Mr. Preuveneers, an investigating judge at the Brussels Court of First In- stance, issued a warrant for the arrest of the applicant, who was suspected of having caused both deaths. He was in France at the time, but was arrested by the French authorities who, after agreeing to grant his extradition, handed him over to the Belgian police (gendarmerie) on 13 January 1977. The Courtrai procureur du Roi (public prosecutor) so informed his colleague in Brussels by a letter of the same date. Mr. Xxxxxx Xxx xx Xxxxx, a senior deputy procureur, initialled the letter and for- warded it to the official in the public prosecutor’s department (parquet) who was dealing with the case, one Mrs. xxx Xxxxxx. She transmitted it to Mr. Preuveneers with a covering note (apostille) dated 17 January.
10. On 4 February 1977, the investigating judge wrote to the Brussels procureur du Roi to en- quire whether, as regards the co-accused Xxxxxx de Xxxxx, the public prosecutor’s department in- tended to report the facts to the Portuguese authorities, those authorities apparently being no longer willing to grant his extradition. On his covering note, the judge added in manuscript, between brackets, the words “for the attention of Mr. P. Van de Walle ”. Mrs. xxx Xxxxxx replied to Mr. Preu- veneers on 9 February 1977.
11. On 20 June, the procureur général (State prosecutor) attached to the Brussels Court of Ap- peal sent to the procureur du Roi the results of letters rogatory executed in Portugal concerning Mr. Xxxxxx de Xxxxx. After initialling the covering note, Mr. Xxx xx Xxxxx forwarded it to Mr. Xx Xxxx, the deputy who had taken over from Mrs. xxx Xxxxxx in dealing with the case; Mr. Xx Xxxx transmitted the note to the investigating judge on 22 June.
12. On 13 December 1977, Mr. Xxx xx Xxxxx took his oath as a judge on the Brussels Court of Appeal, to which office he had been appointed on 18 November. Most of the investigations had been completed by that time, although some further formal steps were taken at a later date.
13. On 12 May 1978, the deputy, Mr. Xx Xxxx, signed an application for an arrest warrant (réquisitoire de prise de corps); prior to that, in a report of forty-five pages, he had referred the matter to the procureur général attached to the Court of Appeal, who had replied on 11 May. By judgment of 16 June, the Indictments Chamber (Chambre des mises en accusation) of the Brussels
(1) Testo tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
Court of Appeal remitted the applicant for trial before the Brabant Assize Court on charges of vol- untary and premeditated manslaughter of Mr. Xxxx and Mr. Dulon. The procureur général drew up the formal indictment on 27 June.
14. The trial took place from 6 to 10 November 1978 before the Assize Court which was pre- sided over by Mr. Van de Walle. After the court had heard, amongst others, numerous prosecution and defence witnesses, the twelve members of the jury withdrew to consider their verdict. Mr. Pie r- sack had maintained throughout that he was innocent. On the third question put to them, concern- ing the “principal count” , they arrived at a verdict of guilty, but only by seven votes to five. After deliberating on that question in private, the President and the two other judges (assesseurs) de- clared that they agreed with the majority.
In the final event, the Assize Court convicted the applicant of the murder of Mr. Xxxxx and acquit- xxx him as regards the other charges; it accepted that there were mitigating circumstances and xxx- tenced him on 10 November 1978 to eighteen years’ hard labour. It also recorded that on account of his nationality it had not been possible to obtain the extradition to Belgium of Mr. Xxxxxx de Xxxxx, who had been arrested in Portugal.
15. The applicant then appealed on points of law to the Court of Cassation. His sixth ground of appeal, the only ground that is relevant in the present case, was that there had been a violation of Article 127 of the Judicial Code, which provides that “proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as pub- lic prosecutor (ministère public) ...”. He contended that the words “for the attention of Mr. P. Van de Walle ” appearing in manuscript on the covering note of 4 February 1977 (see paragraph 10 above) showed that Mr. Xxx xx Xxxxx, and not some other judicial officer in the public prosecu- tor’s department, had been dealing with the matter at the relevant time and had, accordingly, taken some part or other in the investigation of the case. Mr. Xxxxxxxx made no mention of the letter of 13 January and the note of 20 June 1977 (see paragraphs 9 and 11 above), since at that stage neither he nor his lawyer had identified the author of the initials marked thereon; the Government on their own initiative supplied this information to the Commission in their written observations of March 1980 on the admissibility of the application.
B. SUBMISSIONS OF THE PUBLIC PROSECUTOR’S DEPARTMENT ATTACHED TO THE COURT OF
CASSATION
16. In his submissions, Mr. Xxxx, an avocat général, retraced developments in the relevant Bel- gian legislation and judicial decisions, distinguishing between three periods:
(a) Before 1955, although there were no written rules on the subject, the Court of Cassation had delivered eight judgments in which it had been held that a judicial officer who had acted as public prosecutor in criminal proceedings could not thereafter sit in the case as a judge and, in partic ular, on the assize court bench. The Court of Cassation founded this prohibition on a general and abso- lute principle that was said to derive from the very nature of the functions. The avocat général summarised the judgments as follows: “It is of little moment - that the judicial officer in the public prosecutor’s department intervened in the case only occasionally or by chance...;
- that his intervention did not implicate one or more of the accused by name;
- that his intervention did not involve a formal step in the process of investigation.
It suffices that the judicial officer in the public prosecutor’s department personally played some part in the conduct of the prosecution in the case in question.
There is incompatibility as soon as the judicial officer, during the course of the prosecution, has personally intervened in the case in the capacity of member of the public prosecutor’s department.”
(b) The second period (1955-1968), during which the Court of Cassation apparently did not have occasion to rule on the problem of incompatibility between the functions of public prosecutor and the functions of judge, was marked by two new factors: the incorporation of the Convention into the Belgian domestic legal system and the developments in domestic case-law with regard to the general principle of law whereby cases must be impartially examined by the court.
The litigant’s right to “an impartial tribunal”, within the meaning of Article 6 § 1 of the Conven- tion, could imply either that a judge was simply obliged to withdraw if he were at all biased as re- gards the case or, alternatively, that he was under the more extensive duty of withdrawing when- ever there was a legitimate reason to doubt whether he offered the requisite guarantees of impartia l- ity. The avocat général rejected the first interpretation, which he described as “restrictive”, in fa- vour of the second, the “extensive”, interpretation; he relied notably on Article 31 of the Vienna Convention on the Law of Treaties (account to be taken of the object and purpose) and on the Del- court judgment of 17 January 1970 (Series A no. 11, pp. 14-15, § 25 in fine). As regards the gen- eral principle of law whereby cases must be impartially examined by the court, he also referred to judgments of the Belgian Court of Cassation and the Belgian Conseil d’État. In addition, he cited the following passage from an inaugural address of 1 September 1970 to the Court of Cassation: “any judge whose impartiality may legitimately give rise to doubts must refrain from taking part in the decision”.
(c) The third period saw the entry into force of Articles 127 and 292 of the Judicial Code (see paragraph 22 below) and the application by the Court of Cassation of the second of these Articles to cases where a decision had been given by a judge who had previously acted as a member of the public prosecutor’s department. According to the avocat général, the five judgments that he listed followed the same approach as those delivered in the first period and established that:
(i) notwithstanding Article 292 of the Judicial Code, the general principle of law whereby cases must be impartially examined by the court had retained its full force;
(ii) for the purposes of that Article, the expression “dealing with a case in the exercise of the func- tions of public prosecutor” signified intervening therein in the capacity of prosecuting party;
(iii) there could not be said to have been such an intervention if, in the case concerned, a judicial officer in the public prosecutor’s department had simply
- appeared at a hearing at which the court did no more than adopt a purely procedural measure; or
- taken some step which was manifestly without effect on the conduct of the prosecution.
In the light of the foregoing, the avocat général concluded that the Court of Cassation should “set aside the judgment under appeal ... whether on the sixth ground adduced by the appellant or on the ground, to be taken into consideration by the Court of its own motion, of violation either of Article 6 § 1 of the Convention ... or of the general principle of law whereby cases must be impartially ex- amined by the court”.
The avocat général stressed that the covering note of 4 February 1977 emanated from the investi- gating judge, the person who quite naturally was best informed not only as to the background to the case but also as to the identity of the judicial officer or officers in the public prosecutor’s depart- ment who were dealing with the prosecution. And Mr. Preuveneers had added to the covering note, in manuscript, the words “for the attention of Mr. P. Xxx xx Xxxxx ”, thereby indicating the specific addressee for whom the note was personally intended:
“If the investigating judge marked this covering note as being for Mr. P. Xxx xx Xxxxx ’s attention, it is logical to suppose that he knew that that judicial officer had personally played some part or other in the conduct of the prosecution.
What other reasonable explanation can be given for such a course of action ... which surely would not have been taken unless the two officers had been in contact regarding the investigation of the case?
It is of little moment that other judicial officers in the public prosecutor’s department intervened in the case, for example to follow up the investigating judge’s covering note, or that Mr. Xxx xx Xxxxx intervened only by chance or occasionally, or that such intervention has not been shown to have implicated the appellant or a co-accused by name or ... to have involved a formal step in the process of investigation.
Finally, there would be no reasonable explanation for the handwritten words ... if Mr. Xxx xx Xxxxx ’s intervention in the case had until then been limited to steps that were purely routine or ... were manifestly without effect on the conduct of the prosecution.”
Even if the Court of Cassation were not to allow the appeal on the sixth ground, which was based on Article 127 of the Judicial Code, the circumstances described above were, in the opinion of the avocat général, Mr. Velu, sufficient to give rise to legitimate doubts as to whether the President of the Assize Court had offered the guarantees of impartiality required both by Article 6 § 1 of the Convention and by the general principle whereby cases must be impartially examined by the court.
C. JUDGMENT OF THE COURT OF CASSATION
17. The Court of Cassation dismissed the appeal on 21 February 1979.
As regards the sixth ground of appeal, the Court of Cassation observed firstly that the mere des- patch of the covering note of 4 February 1977 did not necessarily show that Mr. Xxx xx Xxxxx had “acted in the case as public prosecutor”, within the meaning of Article 127 of the Judicial Code.
The Court of Cassation also took into consideration of its own motion Article 6 § 1 of the Conven- tion and the general principle of law establishing the right to the impartiality of the court. It was true that both of these norms obliged a judge to refrain from taking part in the decision if there were a legitimate reason to doubt whether he offered the guarantees of impartiality to which every accused person was entitled. However, the Court held that the documents which it could take into account did not reveal that after the public prosecutor’s department had received the covering note mentioned in the ground of appeal, Mr. Xxx xx Xxxxx, who was then a senior deputy to the Brus- sels procureur du Roi, had taken any decision or intervened in any manner whatsoever in the con- duct of the prosecution relating to the facts in question. Admittedly, for a judge’s impartiality to be regarded as compromised on account of his previous intervention in the capacity of judicial officer in the public prosecutor’s department, it was not essential that such intervention should have con- sisted of adopting a personal standpoint in the matter or taking a specific step in the process of prosecution or investigation. Nevertheless, it could not be assumed that a judicial officer in the public prosecutor’s department had intervened in a case in or on the occasion of the exercise of his functions as such an officer merely because there was a covering note which had been addressed to him personally by the investigating judge but which had not been shown by any evidence to have been received by the officer or to have caused him to take even an indirect interest in the case. In this connection, the Court of Cassation noted finally that it was not the senior deputy Xxx xx Xxxxx who had replied to the covering note.
II. THE RELEVANT LEGISLATION AND PRACTICE
A. THE PUBLIC PROSECUTOR’S DEPARTMENT (MINISTÈRE PUBLIC)
18. In criminal matters, the public prosecutor’s department “conducts prosecutions in the manner specified by law” (Article 138, first paragraph, of the Judicial Code). In that capacity, it investi- xxxxx, and institutes proceedings in respect of, offences and then, if appropriate, appears at the trial in order to argue the case for the prosecution.
All the judicial officers in the public prosecutor’s department form a hierarchical body which is generally recognised as being characterised by unity, indivisibility and independence.
In addition to the departments of the procureur général at the Court of Cassation and of the pro- cureurs généraux at the Courts of Appeal, there is a procureur du Roi for each district; subject to the supervision and directions of the procureur général attached to the Court of Appeal, a pro- cureur du Roi acts as public prosecutor before the District Courts, the Courts of First Instance, the Commercial Courts and the District Police Courts (Article 150 of the Judicial Code). He is aided by one or more deputies who are subject to his personal supervision and directions, including one or more senior deputies appointed by Royal Decree who assist him in the management of the public prosecutor’s department (Article 151 of the Judicial Code).
19. In the Brussels public prosecutor’s department, there are several dozen judicial officers all of whom are answerable to the procureur du Roi. The department is divided into sections, with a sen- ior deputy at the head of each section. As a strict matter of law, the individual deputies come under the sole authority of the procureur du Roi who himself comes under the authority of the procureur
général attached to the Court of Appeal, but in practice a senior deputy exercises certain adminis- trative powers over the deputies. In particular, he revises their written submissions to the courts, discusses with them the approach to be adopted in a specific case and, if the occasion arises, gives them advice on points of law.
One of the above-mentioned sections - section B - deals with indictable and non-indictable offences (crimes et délits) against the person. Mr. P. Xxx xx Xxxxx was the head of this section during the period in question, until his appointment to the Brussels Court of Appeal (see paragraph 12 above). According to the Government, the procureur du Roi regarded himself at that time as personally re- sponsible for cases - like Mr. Xxxxxxxx’x - involving an indictable offence, the number whereof was actually fairly small; he worked on those cases directly with the deputy in charge of the file - on this occasion, Mrs. xxx Xxxxxx and then Mr. Xx Xxxx -, rather than through the intermediary of the senior deputy whose principal role was to countersign documents, if not to act as a “letter-box”. The applicant contested this version of the facts, maintaining that the Government were giv ing an exaggerated view of the “autonomy” enjoyed by the deputies vis-à-vis the senior deputies.
B. ASSIZE COURTS
20. Under Article 98 of the Belgian Constitution, a jury has to be constituted in all cases involv- ing an indictable offence. Assizes are held, as a rule at the chief town in each province, in order to try accused persons remitted for trial there by the Court of Appeal (Articles 114 to 116 of the Xxxx- cial Code and Article 231 of the Code of Criminal Procedure).
Each assize court is composed of a President and two other judges (assesseurs); for criminal mat- ters, it sits with a jury of twelve members (Articles 119 to 124 of the Judicial Code).
The President’s duties include directing the jurors in the exercise of their functions, summing-up the case on which they have to deliberate, presiding over the whole of the procedure and determin- ing the order in which those wishing to do so shall address the court; he also keeps order in court (Article 267 of the Code of Criminal Procedure). He is entitled by law to take, at his discretion and on his own initiative, any steps which he may consider expedient for the purpose of establishing the truth, and he is bound in honour and conscience to make every effort to that end, for example by ordering of his own motion the attendance of witnesses or the production of documents (Articles 268 and 269).
21. After closing the hearings (Article 335, last paragraph, of the Code of Criminal Procedure), the President puts to the jury the questions arising from the indictment and hands the text of those questions to the xxxxxxx of the jury (Articles 337 to 342). The jurors then retire to their room to de- liberate together, in the absence of the President and the other judges; they may return only when they have arrived at their verdict (Articles 342 and 343).
To be valid, the jury’s verdict must be adopted by a majority for or against the accused; if the vot- ing is equal, he is acquitted (Article 347). However, if he is found guilty on the principal count by no more than the simple majority of seven votes to five - as was the case for Mr. Xxxxxxxx (see paragraph 14 above) -, the President and the two other judges deliberate together on the same ques- tion; if a majority of them does not agree with the majority of the jury, the accused is acquitted (Ar- ticle 351). If there is a finding of guilt, the judges retire with the jurors to the jury-room and they deliberate as a single body, under the chairmanship of the President of the Court, on the sentence to be imposed in accordance with the criminal law; the decision is taken by an absolute majority (Ar- ticle 364).
C. INCOMPATIBILITIES
22. Article 292 of the 1967 Judicial Code prohibits the concurrent exercise of different judicial functions, except where otherwise provided by law; it lays down that “any decision given by a judge who has previously dealt with the case in the exercise of some other judicial function” shall be null and void. Article 127 specifies that “proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as ... public prosecutor (ministère public ) or has delivered rulings on the conduct of the investigations”.
PROCEEDINGS BEFORE THE COMMISSION
23. In his application of 15 March 1979 to the Commission (no. 8692/79), Mr. Xxxxxxxx claimed to have been the victim of a violation of Article 6 § 1 of the Convention; he contended that he had not received a hearing by “an independent and impartial tribunal established by law”, since Mr. Xxx xx Xxxxx, the President of the Assize Court which convicted him, had allegedly dealt with the case at an earlier stage in the capacity of a senior deputy to the procureur du Roi.
24. The Commission declared the application admissible on 15 July 198O. In its report of 13 May 1981 (Article 31 of the Convention), the Commission expressed the unanimous opinion that there had been a breach of one of the requirements of Article 6 § 1, namely that the tribunal be im- partial.
The report contains one separate, concurring opinion.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
25. At the hearings, the Government requested the Court “to hold that there has been no viola- tion of Article 6 § 1 of the Convention in the present case”.
AS TO THE LAW
I. THE ALLEGED VIOLATION OF ARTICLE 6 § 1
26. Under Article 6 § 1 of the Convention, “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal estab- lished by law. ”
1. “Independent tribunal”
27. According to the applicant, the court by which he was convicted on 10 November 1978 was not an “independent tribunal”. This assertion, for which he adduced no supporting evidence, does not stand up to examination. Under the Constitution (Articles 99-100) and by statute, the three judges of whom Belgian assize courts are composed enjoy extensive guarantees designed to shield them from outside pressures, and the same purpose underlies certain of the strict rules governing the nomination of members of juries (Articles 217-253 of the Judicial Code).
2. “Impartial tribunal”
28. Mr. Xxx xx Xxxxx, the judge who presided over the Brabant Assize Court in the instant case, had previously served as a senior deputy to the Brussels procureur du Roi; until his appointment to the Court of Appeal, he was the head of section B of the Brussels public prosecutor’s department, this being the section dealing with indictable and non-indictable offences against the person and, therefore, the very section to which Mr. Xxxxxxxx’x case was referred (see paragraphs 9-12, 14 and 19 above).
29. On the strength of this fact the applicant argued that his case had not been heard by an “im- partial tribunal”: in his view, “if one has dealt with a matter as public prosecutor for a year and a half, one cannot but be prejudiced”.
According to the Government, at the relevant time it was the procureur du Roi himself, and not the senior deputy, Mr. Xxx xx Xxxxx, who handled cases involving an indictable offence; they main- tained that each of the deputies - on this occasion, Mrs. xxx Xxxxxx and then Mr. Xx Xxxx - reported to the procureur on such cases directly and not through Mr. Xxx xx Xxxxx, the latter’s role being principally an administrative one that was unconnected with the conduct of the prosecution and consisted, inter alia , of initialling numerous documents, such as the covering notes of 13 January and 20 June 1977 (see paragraphs 9, 11 and 19 above). As regards the covering note of 4 February
1977 (see paragraph 10 above), the investigating judge, Mr. Preuveneers, was said to have written thereon the words “for the attention of Mr. P. Van de Walle ” solely because he knew that Mrs. xxx Xxxxxx was frequently on sick-leave. In addition, so the Government stated, there was no evidence to show that Mr. Xxx xx Xxxxx had received that note and, in any event, it was not he but Mrs. xxx Xxxxxx who had replied to Mr. Preuveneers.
30. Whilst impartiality normally denotes absence of prejudice or bias, its existence or otherwise can, notably under Article 6 § 1 of the Convention, be tested in various ways. A distinction can be drawn in this context between a subjective approach, that is endeavouring to ascertain the personal conviction of a given judge in a given case, and an objective approach, that is determining whether he offered guarantees sufficient to exclude any legitimate doubt in this respect.
(a) As regards the first approach, the Court notes that the applicant is pleased to pay tribute to Mr. Xxx xx Xxxxx ’s personal impartiality; it does not itself have any cause for doubt on this score and indeed personal impartiality is to be presumed until there is proof to the contrary (see the Le Compte, Xxx Xxxxxx and Xx Xxxxxx judgment of 23 June 1981, Series A no. 43, p. 25, § 58).
However, it is not possible to confine oneself to a purely subjective test. In this area, even appear- ances may be of a certain importance (see the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17, § 31). As the Belgian Court of Cassation observed in its judgment of 21 February 1979 (see paragraph 17 above), any judge in respect of whom there is a legitimate reason to fear a lack of impartiality must withdraw. What is at stake is the confidence which the courts must inspire in the public in a democratic society.
(b) It would be going too far to the opposite extreme to maintain that former judicial officers in the public prosecutor’s department were unable to sit on the bench in every case that had been ex- amined initially by that department, even though they had never had to deal with the case them- selves. So radical a solution, based on an inflexible and formalistic conception of the unity and in- divisibility of the public prosecutor’s department, would erect a virtually impenetrable barrier be- tween that department and the bench. It would lead to an upheaval in the judicial system of several Contracting States where transfers from one of those offices to the other are a frequent occurrence. Above all, the mere fact that a judge was once a member of the public prosecutor’s department is not a reason for fearing that he lacks impartiality; the Court concurs with the Government on this point.
(c) The Belgian Court of Cassation, which took Article 6 § 1 into consideration of its own mo- tion, adopted in this case a criterion based on the functions exercised, namely whether the judge had previously intervened “in the case in or on the occasion of the exercise of ... functions as a ju- dicial officer in the public prosecutor’s department”. It dismissed Mr. Xxxxxxxx’x appeal on points of law because the documents before it did not, in its view, show that there had been any such in- tervention on the part of Mr. Xxx xx Xxxxx in the capacity of senior deputy to the Brussels pro- cureur du Roi, even in some form other than the adoption of a personal standpoint or the taking of a specific step in the process of prosecution or investigation (see paragraph 17 above).
(d) Even when clarified in the manner just mentioned, a criterion of this kind does not fully meet the requirements of Article 6 § 1. In order that the courts may inspire in the public the confidence which is indispensable, account must also be taken of questions of internal organisation. If an indi- vidual, after holding in the public prosecutor’s department an office whose nature is such that he may have to deal with a given matter in the course of his duties, subsequently sits in the same case as a judge, the public are entitled to fear that he does not offer sufficient guarantees of impartiality.
31. This was what occurred in the present case. In November 1978, Mr. Xxx xx Xxxxx presided over the Brabant Assize Court before which the Indictments Chamber of the Brussels Court of Ap- peal had remitted the applicant for trial. In that capacity, he enjoyed during the hearings and the de- liberations extensive powers to which, moreover, he was led to have recourse, for example the dis- cretionary power conferred by Article 268 of the Judicial Code and the power of deciding, with the other judges, on the guilt of the accused should the jury arrive at a verdict of guilty by no more than a simple majority (see paragraphs 13-14 and 20-21 above).
Yet previously and until November 1977, Mr. Xxx xx Xxxxx had been the head of section B of the Brussels public prosecutor’s department, which was responsible for the prosecution instituted
against Mr. Piersack. As the hierarchical superior of the deputies in charge of the file, Mrs. xxx Xxxxxx and then Mr. Xx Xxxx, he had been entitled to revise any written submissions by them to the courts, to discuss with them the approach to be adopted in the case and to give them advice on points of law (see paragraph 19 above). Besides, the information obtained by the Commission and the Court (see paragraphs 9-11 above) tends to confirm that Mr. Xxx xx Xxxxx did in fact play a certain part in the proceedings.
Whether or not Mr. Xxxxxxxx was, as the Government believe, unaware of all these facts at the rele- vant time is of little moment. Neither is it necessary to endeavour to gauge the precise extent of the role played by Mr. Xxx xx Xxxxx, by undertaking further enquiries in order to ascertain, for exam- ple, whether or not he received the covering note of 4 February 1977 himself and whether or not he discussed this particular case with Mrs. xxx Xxxxxx and Mr. De Nauw. It is sufficient to find that the impartiality of the “tribunal” which had to determine the merits (in the French text: “bien-fondé”) of the charge was capable of appearing open to doubt.
32. In this respect, the Court therefore concludes that there was a violation of Article 6 § 1.
3. “Tribunal established by law”
33. Initially, the applicant also claimed that the Brabant Assize Court was not a “tribunal estab- lished by law”, arguing that Mr. Xxx xx Xxxxx ’s presence on the bench contravened, inter alia, Ar- ticle 127 of the Judicial Code.
In order to resolve this issue, it would have to be determined whether the phrase “established by law” covers not only the legal basis for the very existence of the “tribunal” - as to which there can be no dispute on this occasion (Article 98 of the Belgian Constitution) - but also the composition of the bench in each case; if so, whether the European Court can review the manner in which national courts - such as the Belgian Court of Cassation in its judgment of 21 February 1979 (see paragraph 17 above) - interpret and apply on this point their domestic law; and, finally, whether that law should not itself be in conformity with the Convention and notably the requirement of impartiality that appears in Article 6 § 1 (cf., in the context of Article 5, the Winterwerp judgment of 24 Octo- ber 1979, Series A no. 33, pp. 19-20, §§ 45-46, and the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, pp. 18-19, § 41).
In the particular circumstances, it does not prove to be necessary to examine this issue, for in the present case the complaint, although made in a different legal context, coincides in substance with the complaint which has been held in the preceding paragraph to be well-founded; besides, the ap- plicant did not revert to the former complaint either in his written observations of April 1980 on admissibility or during the hearings of 10 December 1980 before the Commission and of 25 March 1982 before the Court.
II. THE APPLICATION OF ARTICLE 50
34. At the hearings, Mr. Xxxxxxxx’x lawyer stated that his client was seeking under Article 50 of the Convention his immediate release, in accordance with “arrangements to be discussed”, and also financial compensation to be used to meet the fees of his lawyers before the Belgian Court of Cass- ation (50,000 BF) and in Strasbourg (150,0000BF), subject to deduction of the amount paid by the Council of Europe by way of legal aid (3,500 FF).
Counsel for the Government replied that, were the Court to find a violation, publication of the judgment would itself constitute adequate just satisfaction. She added that she was unaware of the authorities’ present view on early release of the applicant.
35. Accordingly, although it was raised under Rule 47 bis of the Rules of Court, this question is not ready for decision. The Court must therefore reserve it and fix the further procedure, taking due account of the possibility of an agreement between the respondent State and the applicant.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 § 1 of the Convention;
2. Holds that the question of the application of Article 50 is not ready for decision; accordingly,
(a) reserves the whole of the said question;
(b) invites the Commission to submit to the Court, within two months from the delivery of the present judgment, the Commission’s written observations on the said question and, in par- ticular, to notify the Court of any friendly settlement at which the Government and the appli- cant may have arrived;
(c) reserves the further procedure and delegates to the President of the Chamber power to fix the same if need be.
[omissis]
Corte europea dei diritti dell’uomo, sent. 6 dicembre 1988,
Xxxxxxx, Messegué e Jabardo x. Xxxxxx (ric. n. 10590/83) (1)
[omissis]
AS TO THE FACTS
8. The three applicants are Spanish nationals born in 1951, 1947 and 1955, respectively. Mr Xxxxxxxx-Xxxxxx Xxxxxxx Xxxxxxxx and Mr Xxxxxxxx Xxxxxxxx Mas are serving long sentences at Lérida Prison no. 2 (Lleida-2) and Barcelona Prison respectively and have the benefits of the open system. Mr Xxxxxx Xxxxxxx Xxxxxx is at present living in Gironella in Barcelona Province.
I. THE CIRCUMSTANCES OF THE CASE
A. ORIGIN OF THE PROCEEDINGS AGAINST THE APPLICANTS
1. Killing of Mr Xxxxx
At about 3 p.m. on 9 May 1977, Mr Xxxx Xxxxx Xxxxx Xxxxxxx, a 77-year-old Catalan businessman, was at his brother-in-law’s house in Barcelona in the company of his brother-in-law and his own sister, Mrs Xxxxx Xxxxx Xxxxxxx, when two men entered the flat under the pretext of being gas- board employees. They seized and held the maid, thus enabling other persons to enter.
The latter threatened Mr Xxxxx with guns and shut him in a room, where they fixed an explosive device to his chest. They demanded a ransom of five hundred million pesetas from him, to be handed over within twenty-five days, and gave him instructions on how to pay it, saying that on payment he would be told how to remove the device safely. They then left the premises and de- parted in wait ing cars.
10. Mr Xxxxx returned home in his car. Shortly before 5 p.m., the device exploded, killing him instantly.
2. Criminal proceedings following the killing
11. On the same day, Barcelona investigating judge no. 13 commenced a preliminary investiga- tion (diligencias previas - no. 1373/77) into these events. On 11 May, he placed the relevant docu- ments in investigation file (sumario) no. 61/1977 but later relinquished jurisdiction on the ground that the crime was a terrorist act which came within the jurisdiction of the Audiencia Nacional in Madrid (see paragraph 45 below). The case was accordingly sent to central investigating judge no. 1 of that court (juez central de instrucción), who opened file no. 46/1977.
12. The police investigation led to the arrest on 1 July 1977 of four persons (not including any of the applicants) who were members of the X.XX.XX. (Catalan Peoples’ Army) and one of whom had been recognised by witnesses. On 29 July, they were charged with murder, with a terrorist act caus- ing death and with possession of explosives.
On 10 November 1977, however, the Audiencia Nacional decided to apply the amnesty law (no. 46 of 15 October 1977) to the accused owing to the political nature of their motives. They were at once released.
13. On an appeal by the public prosecutor, the Supreme Court set this decision aside on 28 Feb- ruary 1978 on the ground that by that stage of the proceedings it had not been established that the
(1) Testo tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
crime was politically motivated and not carried out for pecuniary ga in. This judgment meant that investigation file no. 46/1977 was reopened. As the four accused did not appear, however, the judge ordered them to be sought by the police, and in July 1978 he provisionally suspended the proceedings.
3. Arrest of Mr Xxxxxxxx Xxxxxxxx and proceedings against him
14. In the course of their investigations into the killing of Mr Xxxxx, the police arrested Mr Xxxxx Xxxxxxxx Xxxxxxxx, aged 63, and four other persons on 4 March 1979. They were placed in police custody and held incommunicado, in accordance with the anti-terrorist legislation then in force (see paragraph 46 below).
Unassisted by a lawyer, Mr Xxxxxxxx Xxxxxxxx was questioned at the police station during his cus- tody there and on 11 March 1979 made a statement containin g, in substance, the following:
Until 1974 he had been a leading member of a Catalan nationalist organisation, the “Front Nacional de Catalunya”, and from 1967 on had taken part in the creation and training of armed groups, with the object of fighting for the independence of the Catalan nation.
In 1968, he had met three young men including a certain “Xxxxxx”, whom he identified as the ap- plicant Messegué, and in late 1969 had begun their theoretical and practical military training. In 1973, he had established another group of young men, one of whom he identified as the applicant Barberà.
Subsequently, several people, including “Xxxxxx”, had purchased weapons in Germany; they had brought them into Spain via France and hidden them in dumps known to them alone.
In 1976, three groups had been established, one of which was commanded by “Xxxxxx”. The group members gave up all outside activities and were paid by the organisation. A network of flats and radio transmitters had been created later to allow contact between the groups.
In February 1977, Mr Xxxxxxxx Xxxxxxxx had been informed that an explosive device had been pro- duced, which could be attached to a person’s body and subsequently defused on payment of an agreed ransom. The mechanical part of this device could have been designed by “Xxxxxx” (Messegué) and another activist, and the electronic part by Mr Xxxxxxx and another person. “Tho- mas” and someone else had later shown the device to Mr Xxxxxxxx Xxxxxxxx.
In April 1977, they had revealed to him that the first victim chosen was Mr Xxxx Xxxxx Xxxxx.
Two days after the killing, he had met the commando leaders and had learned that eleven people had taken part in the operation and that Mr Xxxxxxx and Mr Xxxxxxxx had attached the device to the victim’s chest.
15. When Mr Xxxxxxxx Xxxxxxxx was brought before Barcelona investigating judge no. 6, in the presence and with the assistance of counsel, he amended his statement. In particular, he said that the bomb “might have” been made by the persons stated, but that he did not know the names of those who had carried out the attack on Mr Xxxxx.
16. These statements were sent to central investigating judge no. 1 in Madrid, who reopened file no. 46/1977 on 15 March 1979. On the next day he charged Mr Xxxxxxxx Xxxxxxxx with murder and with possession of arms and explosives, and ordered him to be held in custody on remand.
In a further decision on the same day he charged six others, including Mr Xxxxxxx and Mr Xxxxx- xxx, with murder, criminal damage and uttering forged documents, and issued a warrant for their arrest. As none of the six could be found, the proceedings continued solely against the co- defendants in custody.
17. During the investigation and again at the hearing, Mr Xxxxxxxx Xxxxxxxx retracted his state- ment to the investigating judge as far as the identification of Xxxxxxx and Xxxxxxxx was concerned.
On 17 June 1980, the first section of the Criminal Division of the Audiencia Nacional sentenced him to one year and three months’ imprisonment for assisting armed gangs. It set aside the original charges, however, noting among other things that he had expressed disapproval when at the end of April 1977 he had been told of the proposed operation against Mr Xxxxx; that the preparations had occurred without his knowledge; and that he had only learned of the victim’s death through press
reports. It also ordered his immediate release because the period of the sentence had already been spent in custody on remand.
18. Following an appeal on points of law by Mr Xxxxx’x son, acting both as a “private prosecu- tor” and as a party claiming civil damages, the Supreme Court quashed the judgment of the Audi- encia Nacional on 10 April 1981. On the same day, it sentenced Mr Xxxxxxxx Xxxxxxxx to twelve years and one day’s imprisonment for aiding and abetting a murder and ordered him to pay five million pesetas in damages to the victim’s heirs. It held that the influence he exerted on those who committed the crime was sufficiently great to amount to aiding and abetting and went far beyond merely assisting armed gangs; admittedly, he had made it clear that he was opposed to the crime, but he had done nothing to prevent it.
A warrant was consequently issued - on 24 April 1981, according to the applicants - for Mr Xxxxxxxx Xxxxxxxx’x arrest. Mr Xxxxxxxx Xxxxxxxx has not so far been found by the police and has therefore not yet served his sentence.
B. ARREST OF THE APPLICANTS AND CRIMINAL PROCEEDINGS AGAINST THEM
19. The three applicants were arrested with other persons on 14 October 1980 and charged with belonging to the terrorist organisation X.XX.XX. Among items found at their homes were radio transmitters and receivers, a variety of implements, electronic equipment, publications of left-wing nationalist parties, files on leading politicians and businessmen, and books on topography, electron- ics and the chemistry of explosives.
Section 2 of Law no. 56 of 4 December 1978 on the suppression of terrorism, as renewed by Royal Legislative Decree no. 19 of 23 November 1979, was applied to their case (see paragraph 46 be- low). This authorised the police to hold suspects in custody for longer than the normal period of seventy-two hours, with leave from the investigating judge. The applicants were moreover held in- communicado and not allowed to have the assistance of a lawyer.
While in custody they signed a statement in which they admitted having taken part in Mr Xxxxx’x murder either as principals or as accessories; their account differed from Mr Xxxxxxxx Xxxxxxxx’x, however. Furthermore, the police discovered stocks of arms and explosives at places indicated by Mr Xxxxxxx and Mr Xxxxxxxx.
20. On 23 October 1980, the persons held in custody appeared before Barcelona investigating judge no. 8, who questioned them - without any defence lawyer being present in the case of Mr Xxxxxxx and Mr Xxxxxxx. They retracted their confessions to the police and two of them - Xxxxxxx and Xxxxxxxx - complained of being subjected to physical and psychological torture while in po- lice custody.
By an order (auto ) of the same day the judge directed that they should be held in custody on re- mand, and they were transferred to Barcelona Prison.
21. On 24 October 1980, the resulting documents were sent to central investigating judge no. 1 for inclusion in file no. 46/1977.
On 12 January 1981, the latter judge charged the applicants and two other persons with murder and assisting armed gangs. He then sent letters rogatory to Barcelona for further inquiries to be made. Barcelona investigating judge no. 10 served the charges on the applicants and examined them on 22 January; they confirmed the statements they had made to investigating judge no. 8 and again al- leged that their confessions had been obtained by means of torture.
They were not, however, confronted with the prosecution witnesses or Mr Xxxxxxxx Xxxxxxxx, who was then at liberty.
Mr Xxxxxxx instructed an advocate and an attorney in Barcelona on 22 December 1980, but the cen- tral investigating judge in Madrid did not record these appointments until 20 January 1981. Mr Xxxxxxxx and Mr Xxxxxxx did not instruct lawyers until 21 February 1981; the investigation had been completed on 16 February.
1. The proceedings before the Audiencia Nacional
22. The case was then committed for trial to the first section of the Criminal Division of the Audiencia Nacional.
By an order of 13 March 1981, the court instructed the public prosecutor and the private prosecutor to make their interim submissions. They argued that the facts amounted to murder, possession of arms and explosives and forging identity documents; as evidence they offered the examination of the defendants, the hearing of eye-witnesses and the production of the entire case-file; no mention was made of Mr Xxxxxxxx Xxxxxxxx.
The file was sent to the attorney acting for Mr Xxxxxxx on 27 May and to the ones acting for Mr Xxxxxxx and Mr Xxxxxxxx on 1 June. Each of the defendants conducted his defence separately with counsel of his own choosing. All the defendants declared their innocence and offered to produce similar evidence, including, in Xxxxxxx and Xxxxxxxx’x case, the statement made by Mr Xxxxxxxx Xxxxxxxx retracting the one he had made to the police implicating Mr Xxxxxxx and Mr Xxxxxxxx in the murder.
Mr Xxxxxxxx had been transferred to Madrid but he and his counsel managed to get him returned to Barcelona in order to prepare his defence.
23. By an order made on 27 October 0000, xxx xxxxx - xx this occasion composed of Mr de xx Xxxxxx (the presiding judge), Mr Xxxxxxxx and Mr Xxxxxxx - admitted the evidence offered and set the case down for trial on 12 January 1982. It also ordered that the accused should be brought to Madrid and appointed Mr Xxxxxxx Xxxxxxx and Mr Xxxxxxxx Xxxxxxxx of the third section as addi- tional judges to bring the number in the first section to five in view of the heavy sentences being sought (Article 145 para. 2 of the Code of Criminal Procedure).
On 10 December 1981, defence counsel (all of whom were members of the Barcelona Bar) applied for the trial to take place in Barcelona on account of the needs of the defence and witnesses’ travel difficulties. Subsequently, a Catalan senator wrote to the court requesting it to at least postpone the transfer to Madrid until after Christmas. On 18 December 1981, the Audiencia Nacional, presided over by Mr Xxxxx Xxxxxx, who was sitting with Mr Xxxxxxxx and Mr Xxxxxxxx xx xx Xxxxxx, re- fused the first application and confirmed that the hearing would be held in Madrid on 12 January 1982.
24. On the day before the trial, counsel for the defendants met the presiding judge of the first section of the Criminal Division (Mr de la Concha), in order to prepare for the hearing and discuss the possibility of an adjournment, as the applicants were still in prison in Barcelona. The presiding judge assured them that the defendants’ transfer was imminent and that the trial could therefore go ahead.
The applicants stated that they left Barcelona on the evening of 11 January and arrived in Madrid at four o’clock the following morning, when the hearing was due to commence at 10.30; they said that they were in very poor shape after travelling more than 600 kilometres in a prison van. Accord- ing to the Government, the journey took ten hours at most.
That same morning of 12 January 1982, the presiding judge had to leave Madrid suddenly as his brother-in-law had been taken ill. As senior judge of the Division, Mr Xxxxx Xxxxxx took his place. In accordance with the legislation in force, so the Government asserted, the parties were not warned either of this substitution or of the replacement of Mr Xxxxxxx - who no longer belonged to the first section - by Mr Xxxxxxxx xx xx Xxxxxx.
25. The trial was held on the appointed day in a high-security courtroom; in particular, the de- fendants appeared in a glass cage and were kept in handcuffs for most of the time. The record makes no mention of any protest by them, except as regards certain exhibits which were not pro- duced in court.
The court agreed to admit in evidence a number of documents submitted by the defence. When ex- amined by the private prosecutor in regard to matters in their statements to the police, the accused again denied any participation in the murder and again complained of being subjected to torture while they were in custody.
26. The public prosecutor offered for examination the three witnesses who had been present at the time of the crime: the sister and brother-in-law of Mr Xxxxx, and their housemaid. The sister and the maid were very old and could not come to Madrid but the prosecutor asked that their statements to the police on the day after the crime should be taken into account. Mr Xxxxx’x brother-in-law gave evidence in court but did not recognise any of the applicants. The only documentary evidence produced by the public prosecutor was a copy of the file on the investigation.
27. For its part, the defence, with the court’s leave, called ten witnesses; some of them, who were arrested at the same time as the defendants, alleged that they too had been subjected to brutal- ity while in police custody.
All the parties agreed to treat the documentary evidence as if it had been produced (por repro- ducida - see paragraph 40 below).
28. The public prosecutor and the private prosecutor then confirmed their interim submissions; counsel for the defendants, on the other hand, amended theirs and submitted that the amnesty law should be applied (see paragraph 12 above).
The hearing was adjourned until 4.30 p.m. and resumed with addresses by the three parties. The presiding judge finally asked the defendants if they had anything to add, and they answered in the negative. The hearing ended in the evening.
29. On 15 January 1982, the first section of the Criminal Division of the Audiencia Nacional sentenced Mr Xxxxxxx and Mr Xxxxxxxx to thirty years’ imprisonment for murdering Mr Xxxxx; it also sentenced Mr Xxxxxxx to six years and one day’s imprisonment for unlawful possession of arms and to three months’ imprisonment and a fine of thirty thousand pesetas for uttering forged documents, and Mr Xxxxxxxx to six years and one day’s imprisonment for possessing explosives. Mr Xxxxxxx was sentenced to twelve years and one day’s imprisonment for aiding and abetting a murder.
The court held it to have been proved that Mr Xxxxxxx and Mr Xxxxxxxx had directly participated in fixing the device to the victim’s body and switching on the electric mechanism, after which they had given Mr Xxxxx instructions for the payment of a ransom, which was the condition on which he would be able to remove the device safely. The device had subsequently exploded for reasons that had never been properly established. Mr Xxxxxxx had assisted the operation by gathering informa- tion about public figures in Catalonia, including Mr Xxxxx.
In the same judgment the court refused to apply the amnesty law of 15 October 1977 to the appli- cants. Even if they had been acting from a political motive, that motive was the independence (and not merely the autonomy) of the Catalan nation and so did not fall within the scope of the amnesty.
2. Proceedings in the Supreme Court
30. The applicants appealed on points of law, relying on Articles 14 (right of all Spaniards to equality before the law), 17 (right to liberty and security of person) and 24 (right to effective xxxx- cial protection) of the Constitution. They described the circumstances of their arrest and custody and pointed out that when they were questioned by the police they did not have the assistance of lawyers and had not been informed of their rights; they had made confessions only because use had been made of coercion, threats and ill-treatment (see paragraphs 19-20 above).
They also claimed that there was no evidence to rebut the presumption that they were innocent of Mr Xxxxx’x murder, as the physical violence to which they had been subjected rendered their con- fessions invalid. Moreover, there was no connection between the facts found by the Audiencia Na- cional and the evidence adduced before it, and its judgment did not explain how it had arrived at its decision.
The applicants also criticised the Audiencia Nacional for not having determined all the issues raised in the defence submissions (Article 851 para. 3 of the Code of Criminal Procedure - see paragraph 43 below): it had ignored their allegations that their statements to the police were inva lid and had given no indication of the evidential value it attached to those statements, having regard to the material produced during the trial. Mr Xxxxxxxx submitted, moreover, that he was implicated
solely by confessions extracted by force from Mr Xxxxxxxx Xxxxxxxx, who had later retracted them before the judge; the Audiencia Nacional had again not expressed an opinion as to their validity.
Furthermore, the Audiencia Nacional had made an error of fact in assessing the evidence (Article 849 para. 2 of the Code of Criminal Procedure - see paragraph 42 below), because there was no conclusive evidence to refute their protestations of innocence before the judge. Referring to Article 24 para. 2 of the Constitution (see paragraph 36 below), which enshrines the principle of the pre- xxxxxxxx of innocence, and to the Supreme Court’s case-law on the subject, the applicants asserted that not only had the evidence been wrongly evaluated but no such evidence in fact existed.
They further submitted that the Audiencia Nacional had not indicated its reasons for holding that the facts had been established, as required by Supreme Court precedents, even though the main de- fence submission had been that there was no evidence. There could only be one explanation for this, namely that the court had allowed itself to be influenced by the defendants’ alleged confes- sions to the police, which had been obtained in clear breach of the fundamental rights guaranteed in Articles 3 and 17 of the Constitution.
Mr Xxxxxxx also criticised the Audiencia Nacional for not having sought during the hearing to in- quire further into the facts. He said that the only prosecution witness who had given evidence in court had not recognised the defendants and that important evidence was lacking, such as identif i- cation and the confrontation of witnesses and accused or a reconstruction of the events. Lastly, he pointed to a discrepancy between the judgment of 17 June 1980 convicting Mr Xxxxxxxx Xxxxxxxx (see paragraph 17 above) and the judgment given in the instant case on 15 January 1982 (see para- graph 29 above); in his submission, this discrepancy showed that he, Mr Xxxxxxx, could not have taken part directly in the attack on Mr Xxxxx.
31. On 27 December 1982, the Supreme Court dismissed the appeals of Mr Xxxxxxx and Mr Xxxxxxxx.
As to the validity of the confessions obtained by the police, including Mr Xxxxxxxx Xxxxxxxx’x, it noted that the alleged defects related solely to the findings of fact and accordingly did not give rise to the procedural irregularity complained of, which related only to points of law.
The court said the following about the presumption of innocence (translated from the French trans- xxxxxx provided by the Government): “The evidence offered by the public prosecutor, the private prosecutor and the defence includes, as written evidence, the complete file on the investigation, containing: (a) the statement made to the judge by Mr Xxxxx Xxxxxxxx Xxxxxxxx, assisted by his lawyer (doc. no. 572 in the file), in which he confirmed the following facts from his first statement to the police: the defendants Xxxxxxx Xxxxxxxx and Messegué Mas were members of an armed group designed to be the nucleus of a revolutionary army to free the Catalan nation; they were very closely associated with Mr Xxxxxxxx Xxxxxxxx, particularly Mr Xxxxxxxx; they had been thoroughly trained in urban guerrilla tactics; they lived ‘freed from all external obligations’, being paid by the organisation to devote all their energies to its work, in accommodation provided by the organisa- tion; they communicated with each other by means of transmitters and used false identity docu- ments and assumed names; Mr Xxxxxxxx was in charge of one of the direct-action groups which, together with others, formed an organised unit or brigade; both men had important pos itions in the organisation and had received training such that they ‘might have’ constructed the explosive device (Mr Xxxxxxx the electronic component and Mr Xxxxxxxx the mechanical component) used for the ‘business operations and in particular the one of which Mr Xxxxx Marqués was the victim - Mr Xxxxxxxx Xxxxxxxx did not know the identity of or the methods used by the persons forming the groups which took part in that operation’; (b) finding of fact in the Audiencia Nacional’s judgment of 17 June 1980 in the same case (doc. no. 138 in the file), confirmed unchanged in the Supreme Court’s judgment of 10 April 1981 convicting Mr Xxxxx Xxxxxxxx Xxxxxxxx: ‘At an unspecified date at the beginning of that year (he is referring to 1977) three of the young men whom he saw most frequently and whom the defendant (Mr Xxxxxxxx Xxxxxxxx) knew to be heads of armed groups told him they considered that the time had come to go into action and that they were contemplating op- erations to finance the members of the groups. They told him that they had adjustable explosive devices which could be fixed to the skin of selected victims so that the latter would be obliged to pay the money asked for in order to avoid the risk of an explosion entailed by removing a device
without the instructions and equipment in the possession of those who had put it in place. At the end of April, two of these group leaders told him that they were thinking of a businessman, Mr Xxxx Xxxxx Xxxxx Xxxxxxx, on whom to use this device for the first time’; (c) the statement made to the judge by Mr Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxxx, assisted by his lawyer (doc. no. 903): he admitted being a member of the Catalan National Liberation Army, working together with Mr Xxxxxxxx Xxxxxxxx, being in possession of arms and knowing of the existence of stocks of arms; (d) the statement made to the judge by Mr Xxxxxxxx Xxxxxxxx Xxx, assisted by his lawyer (doc. no. 906): he belonged to the armed organisation, had been trained in urban guerrilla tactics by Mr Xxxxxxxx Xxxxxxxx and knew of the existence of a stock of explosives; (e) the official report on a search of the flat at no. 1 Pinos Street, Hospitalet de Llobregat (doc. no. 890), and from the file on the inves- tigation a statement by Mrs Xxxxxxx Xxxxx Xxxxx (doc. no. 904) to the effect that the defendant Xxxxxxx Xxxxxxxx lived in the flat with other activists and that there were found there (inter alia) a transmitter, electronic equipment, lathes, tools and files containing press cuttings and information about a number of prominent people, and books on topography, the chemistry of explosives, and electronics; (f) the official report on a search of the flat at no. 27 Parlamento Street, Barcelona (doc. no. 892), occupied by Mr Xxxxxxxx Xxxxxxxx Xxx and Mrs Xxxxxxxxxx Xxxxx Xxxxxx (statement in doc. no. 908) and where a transmitter and receiver, medicines, wigs and stiff paper of the type used for national identity cards and for driving licences were seized; (g) the official report on the discovery of an arms dump and two radio transmitters at three places indicated by the defendant Barberà (doc. no. 882); (h) the official report on the discovery of an explosives dump indicated by Mr Xxxxxxxx and the destruction of the explosives on the spot (docs. nos. 833 and 899). The mere existence of this evidence, irrespective of its implications and the way in which it is assessed, is sufficient to rebut the presumption of innocence relied on by the defendants Barberà Chamarro and Messegué Mas, and we therefore reject grounds five and four respectively of their appeals; the facts established in paragraph 1 of the recital finding that they were directly and immediately involved in the homicidal operation must consequently be confirmed in toto. The description of the facts as murder under Article 406 para. 3 of the Criminal Code with an aggravating circumstance under Ar- ticle 10 para. 6, which was allegedly incorrectly applied according to Xxxxxxx’x sixth ground of ap- peal and Xxxxxxxx’x fifth ground of appeal, was therefore correct and their appeals under section 849(1) of the Procedure Act must therefore be dismissed.”
On the other hand, the Supreme Court quashed the Audiencia Nacional’s judgment in respect of Mr Xxxxxxx, holding that the established facts amounted not to the crime of aiding and abetting murder but to the lesser offence of assisting armed gangs. It accordingly delivered another judgment on the same day acquitting him on the first charge but sentencing him to six years’ imprisonment on the second charge. Lastly, it confirmed that the applicants were not covered by the amnesty law and it ordered an inquiry into their allegations of ill-treatment.
This inquiry was begun in 1984 by investigating judge no. 13 in Barcelona and led in 1985 to a dis- charge order being made by the Audiencia Provincial.
3. Proceedings in the Constitutional Court
32. The three convicted men appealed to the Constitutional Court alleging a violation of Articles 17 para. 3 (right of everyone arrested to be informed of the reasons for his arrest and to be assisted by a lawyer), 24 para. 2 (right to a fair trial and to be presumed innocent) and 14 (right of all Span- iards to equality before the law) of the Constitution (see paragraphs 30 above and 36 below).
As regards the factors taken into account by the Supreme Court, they made the following submis- sions.
1. Mr Xxxxxxxx Xxxxxxxx’x statement could be regarded only as witness evidence, yet it had not been offered as such nor had it been confirmed at the hearing. If one accepted that it had been pro- duced by means of the phrase “por reproducida”, the unacceptable consequence followed that all the actions and confessions contained in the police report would likewise have to be admitted as evidence, since they too appeared in the file on the investigation. In any case, the material state- ment did not provide any indication that the defendants had had any involvement in the murder.
2. The Audiencia Nacional’s judgment of 17 June 1980 merely stated, in its second recital, that Mr Xxxxxxxx Xxxxxxxx did not know the actual course of the relevant events.
3. Mr Barberà’s statement to the investigating judge should not have been admitted in evidence, since he had made it without counsel’s assistance; furthermore, he merely denied that he had par- ticipated in the crime.
4. Similarly, Mr Xxxxxxxx had declared to the investigating judge that he was innocent.
5. The items found at the homes of Mr Xxxxxxx and Mr Xxxxxxxx and the statements by their fe- male companions had no connection with the murder. The items, moreover, had never amounted to real evidence as it did not appear from the file that they had been given to the judge or assessed by the court - one of the defence counsel had indeed protested at this during the trial; as to the docu- ments, these had never been appended to the police report nor placed elsewhere in the file on the investigation, so the court could not take them into account.
6. The discovery of arms and explosives at the places indicated by Mr Xxxxxxx and Mr Xxxxxxxx was relevant to the offences of unlawful possession of weapons and explosives but not to the mur- der.
In sum, none of the factors listed by the Supreme Court could rebut the presumption of innocence in respect of the main charge, the attack on Mr Xxxxx.
For the rest, the applicants repeated in substance the submissions they had made before the Su- preme Court.
33. On 20 April 1983, the Constitutional Court declared the appeal (recurso de xxxxxx) inadmis- sible as being manifestly ill-founded. As regards the presumption of innocence it gave the follow- ing reasons for its order (auto): “As the assessment of the evidence lies within the exclusive juris- diction of the judges and courts, the Constitutional Court cannot find a violation of this provision unless there has been a failure to produce a minimum of evidence against the accused. In the in- stant case, however, this minimum of evidence was produced, namely in the statements made with the assistance of a lawyer to the investigating judge, the official reports on the searches made and on the real evidence discovered and in the facts as established in another judgment. The Constitu- tional Court cannot therefore review the criminal courts’ assessment of the evidence.”
34. In March 1984, the applicants were transferred from Carabanchel Prison in Madrid to Lérida Prison (Lleida-2). In September, the Audiencia Nacional granted Mr Xxxxxxx parole. Since January 1987, Mr Xxxxxxx and Mr Xxxxxxxx have been held in an open prison.
C. FURTHER DEVELOPMENTS IN THE CRIMINAL PROCEEDINGS RELATING TO THE KILLING OF MR XXXXX
35. The police rearrested two of the persons originally prosecuted (see paragraph 12 above), Mr S and Mrs T, and the investigation was resumed on 8 February 1985.
Mr S was sentenced to thirty years’ imprisonment as being responsible for Mr Xxxxx’x murder to- gether with the applicants Xxxxxxx and Messegué. He appealed on points of law to the Supreme Court, which dismissed his appeal on 28 November 1986, holding that the evidence produced was sufficient to rebut the presumption of innocence. His subsequent appeal to the Constitutional Court was declared inadmissible on 1 April 1987.
As for Mrs T, she was sentenced to four years’ imprisonment for assisting armed gangs.
II. THE APPLICABLE SPANISH LEGISLATION
A. SPANISH CONSTITUTION
36. By Article 24 of the Spanish Constitution, “1. Everyone has the right to effective protection by the judges and courts in the exercise of his legitimate rights and interests, and in no case may the right to a defence be curtailed. 2. Everyone, further, has the right to be heard by the tribunal estab- lished by law, the right to a defence and to the assistance of a lawyer, the right to be informed of any charges against him, the right to a public trial without undue delay and attended by all safe-
guards, the right to make use of evidence relevant to his defence, the right not to make statements against himself and not to confess himself guilty, and the right to be presumed innocent. ”
37. In view of the Constitutional Court’s case-law in this area, the Supreme Court has extended the scope of proceedings in appeals on points of law. It has held that the presumption of innocence can be relied upon before it in respect of an infringement of the law resulting from an error made by the trial court when assessing the evidence (see paragraph 42 below), or on some other ground.
According to a judgment of 3 November 1982, the Supreme Court’s review of the evidence is di- rected only to the question whether or not evidence was produced and taken and not to the criminal court’s final, unappealable assessment of that evidence.
38. Article 53 para. 2 of the Constitution provides for an appeal (recurso de xxxxxx) whereby the protection of the rights laid down in Articles 14 to 30 may be secured.
B. CODE OF CRIMINAL PROCEDURE
1. The file on the judicial investigation
39. According to the preamble to the Code of Criminal Procedure, the file on the judicial inves- tigation is “the corner-stone of the hearing and the judgment”. It is not a substitute for the hearing but a preparation for it.
Since the reform of 4 December 1978 (Law no. 53/1978), the adversarial nature of criminal pro- ceedings applies to the investigation stage; this enables the accused, assisted by his advocate, to in- tervene in respect of steps concerning him (Articles 118 and 302). In order to exercise this right, the accused must appoint an advocate (abogado) and an attorney (procurador).
The investigating judge has to build up his file under the direct supervision of the appropriate pub- lic prosecutor’s office (Article 306). He includes the evidence put forward by the public prosecutor and the other parties if he considers it relevant. He can also order evidence to be produced of his own motion, but in that case he adds to the file only such evidence as proves to be of value (Article 315).
Once the investigation is concluded, the judge forwards the documents to the relevant court (Arti- cle 622 para. 1), which takes the final decision to close the investigation after it has heard the pub- lic prosecutor and the private prosecutor (Article 627).
2. The hearing
40. Before the hearing, the public prosecutor and the private prosecutor make their interim sub- missions - in writing and in numbered paragraphs - on the punishable offences disclosed by the case-file, on their classification in criminal law, on the circumstances that may affect the accused’s responsibility and on the penalty which he may incur. The defence, in its turn, presents its view of the classification in law of the facts disclosed by the case-file (which is placed at its disposal) and must reply by indicating, likewise in numbered paragraphs corresponding to the prosecution’s submissions, whether it accepts or rejects each of them; in the latter case, it makes its own alterna- tive submissions (Articles 650, 651 and 652). The prosecution and the defence must, when making their interim submissions, indicate the evidence they propose to adduce (Articles 656 and 657), and this evidence is scrutinised by the reporting judge and admitted or rejected by the court (Articles 658 and 659).
The hearing takes place in public, failing which it will be null and void (Article 680). It cannot be- gin or be continued unless the accused is present. For this purpose, the law allows the accused to be transferred, if necessary, to the town in which the hearing is to be held.
Evidence is taken in the order in which the parties have offered it. The court may also take such evidence as it considers necessary for the discovery of the truth (Article 729 para. 2). Furthermore, “at the request of any of the parties, documents relating to evidence which, for reasons beyond the parties’ control, cannot be produced at the hearing may be read out” (Article 730). Where all or part of the file on the judicial investigation is adduced in evidence, there is an established practice
that it will be regarded as having been produced (por reproducida) without having been read out if all those concerned so agree.
Immediately after the evidence has been taken, the parties may make written amendments to their interim submissions or else make them final. The presiding judge calls the representatives of the public prosecutor and of the private prosecutor (Article 732). In their pleadings, these representa- tives must set out the facts they consider proved at the hearing, their classification in criminal law, the part played in them by the accused and the civil liability flowing from them (Article 734). The presiding judge then immediately calls the defence; its pleadings must be consistent with its final written submissions (Articles 736 and 737). Lastly, the presiding judge gives the accused the op- portunity of addressing the court in case he wishes to add anything in his defence (Article 739). Af- ter that, the presiding judge declares the hearing closed.
3. The judgment
41. The judges deliberate immediately after the hearing, or at the latest on the following day (Ar- ticle 149), and a reporting judge (magistrado ponente) is designated for the purposes, inter alia, of informing the court, examining the evidence and preparing a draft judgment (Articles 146-147 of the Code of Criminal Procedure). The final decision is written and signed within three days (Article 203). In drawing it up, the court has to assess in all conscience the evidence adduced during the hearing, the submissions of the prosecution and the defence, and the statements of the defendants (Article 741).
4. Appeal on points of law
42. An ordinary appeal does not lie against judgments of the Audiencia Nacional; only the spe- cial remedy of an appeal on points of law or procedure is available.
By Article 849, the law is deemed to have been violated
(1) where, having regard to the facts declared proved in the judgment appealed against, there has been an infringement of a substantive provision of criminal law or any other legal rule of the same kind which has to be complied with when the criminal law is being applied; or
(2) where an error of fact has been made in assessing the evidence and this appears clearly from au- thentic documents not contradicted by other evidence.
It has been held by the Supreme Court that in the second of these two eventualities the principle of the presumption of innocence can be prayed in aid (see paragraph 37 above).
43. Non-compliance with procedural requirements includes cases in which:
(a) the judgment appealed against does not clearly state the facts deemed to have been established or discloses a manifest discrepancy between them or else mentions as proved facts “concepts” which, by their legal nature, prejudge the decision to be taken (Article 851 para. 1);
(b) the judgment does not dispose of all the issues raised by the prosecution and the defence (Arti- cle 851 para. 3); and
(c) one of the judges who participated in the judgment was challenged but without success, al- though the challenge was made within time, in the proper manner and for a legally valid reason (Article 851 para. 6).
5. Membership of the court and right of challenge
44. The Audiencia Nacional and the Supreme Court both comprise several divisions with spe- cific jurisdictions (civil, criminal, administrative), each of which is in turn divided into three-judge sections if the number of judges allows. Members of each division are always available to replace fellow members, and the president of a division can be replaced by the presiding judge of a section or by the senior judge.
Section 648 of the Judicature Act 1870 (Ley orgánica del Poder Judicial) provides that where the judges designated to complete a section do not come from the Criminal Division, the parties must be informed of their identity at least twenty-four hours before the public hearing begins.
By the same section of the Act, no challenge may normally be made after the hearing has begun. Under Article 56 of the Code of Criminal Procedure, however, a challenge may be made at any stage of the proceedings but in no circumstances after the beginning of the oral stage unless on the ground of subsequent events. A judge may be challenged on the following legal grounds among others: that he is related by blood or marriage to one of the parties; that one of the parties has either lodged a complaint or brought a prosecution against him or once did so in the past; that the judge has himself lodged a complaint or brought a private prosecution against the person making the challenge, or once did so in the past; that he is involved in litigation with the person making the challenge; that he is or has been the guardian or xxxx of one of the parties or has had custody of him; that he has taken part in the proceedings as advocate, legal adviser, member of the public prosecutor’s office, expert, witness or investigating judge; that he has a direct or indirect interest in the proceedings; that he is a close friend or else obviously hostile (Article 54).
C. LEGISLATION ON TERRORISM
45. The Audiencia Nacional was given jurisdiction in terrorist cases on 4 January 1977 (Royal Legislative Decree no. 3/77). The court, which was created by legislative decree on the same date (no. 1/77), sits at Madrid and its criminal jurisdiction also extends to organised crime, business crime and offences whose effects reach beyond the territory of a single province. The judicial in- vestigation of such offences is carried out by specialist judges (jueces centrales de instrucción).
46. At the time the applicants and Mr Xxxxxxxx Xxxxxxxx were arrested, Law no. 56 of 4 Decem- ber 1978 provided for a range of measures not permitted by the ordinary law in respect of terrorist acts committed by armed groups. This Law, which was originally intended to be in force for a year, was renewed by Royal Legislative Decree no. 19 of 23 November 1979.
Section 2 of the Law makes provision for holding people in police custody for up to ten days (in- stead of seventy-two hours). Furthermore, the judicial authority which has ordered detention can also order that the person concerned be held incommunicado for the length of time needed to com- plete the judicial investigation, without prejudice to the rights of the defence (same section). There are also special provisions on searches and the monitoring of correspondence, inclu ding communi- cations by telegraph and telephone (section 3).
PROCEEDINGS BEFORE THE COMMISSION
47. In their applications of 22 July 1983 to the Commission (nos. 10588/83-10590/83) Mr Xxx- xxxx, Mr Xxxxxxxx and Mr Xxxxxxx complained that they had not had a fair trial before an inde- pendent and impartial tribunal; they alleged in particular that they were convicted on no evidence except their confessions, which had been extracted by torture, and they relied on Article 6 paras. 1 and 2 of the Convention.
They also alleged that while in police custody they had been subjected to treatment incompatible with Article 3; in this connection they complained also of violations of Articles 5 para. 1, 8 para. 1 and 9 para. 1. Lastly, they claimed to be victims of discrimination contrary to Article 14 taken to- gether with Article 9 para. 1, because when applying the amnesty law of 15 October 1977 (see paragraph 12 above), the relevant courts were allegedly more favourable to Basque nationalists than to Catalan nationalists.
48. After ordering the joinder of the applications on 14 March 1984, the Commission held them to be admissible on 11 October 1985 with regard to the complaints based on Article 6 paras. 1 and 2 but declared them inadmissible for the rest.
In its report of 16 October 1986 (made under Article 31), it expressed the opinion that there had been a violation of Article 6 para. 1 (unanimously) and that there was no need for a separate ex- amination of the complaints of the applicants Xxxxxxx and Messegué under Article 6 para. 2 (by
twelve votes to none, with one abstention). The full text of the Commission’s opinion is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
49. In their memorial of 6 May 1987, the applicants asked the Court “to decla re that Spain [had] violated Article 6 para. 1 of the Convention inasmuch as [their] right to a fair trial was infringed in the instant case”. In the event of the Court not so holding, they also asked it to “rule on a violation of Article 6 para. 2 on the ground that they [had been] convicted without any evidence”.
50. The Government, in their memorial of 4 June 1987, requested the Court “to examine the pro- ceedings leading to the applicants’ conviction in their entirety or each of the steps in the proceed- ings separately; to rule on the objections that domestic remedies [had] not been exhausted; and to declare that the provisions of Article 6 paras. 1 and 2 of the European Convention on Human Rights [had] not been violated in the instant case and that consequently the facts which [had given] rise to the proceedings [did] not disclose any violation by Spain of its obligations under the Con- vention”.
AS TO THE LAW
51. The applicants claimed that they were the victims of breaches of Article 6, which provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal 2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) (b) to have adequate time and
facilities for the preparation of his defence; (c) to defend himself in person or through legal assis- tance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same condi- tions as witnesses against him; (e) ”.
The Government submitted that there had not been any such violations: they also pleaded non- exhaustion of domestic remedies in respect of some of the complaints.
The Commission, on the other hand, to a large extent accepted the applicants’ arguments.
52. From the record it appears that the issues raised in this case can be grouped as follows:
(a) the impartiality of the Audiencia Nacional, which tried the applicants;
(b) the fairness of their trial; and
(c) adherence to the presumption of innocence.
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1
A. THE IMPARTIALITY OF T HE AUDIENCIA NACIONAL
53. Mr Xxxxxxx, Mr Xxxxxxxx and Mr Xxxxxxx regarded the change in the membership of the bench without notice, the political persuasion of the substitute presiding judge, Mr Xxxxx Xxxxxx, and his attitude during the hearing as all being factors which made the Audiencia Nacional’s impar- tiality open to doubt.
They had originally also contended that the Audiencia Nacional was a special court, but they did not repeat this argument before the Court. The Commission considered that the Audiencia Nacional was an ordinary court (see paragraph 94 of its report). The Court shares this opinion.
1. The change of membership of the bench without notice
54. The Court notes that in an order dated 27 October 1981 the appropriate section of the Audi- encia Nacional had directed that the oral proceedings should commence on 12 January 1982 and had appointed the judges who would sit as additional members (see paragraph 23 above). The pre- siding judge of the section, Mr de xx Xxxxxx, had a preparatory meeting with counsel for the defen- dants on the day before the trial, but the following morning had to leave Madrid for family reasons. Another judge, Mr Xxxxx Xxxxxx, took his place. Counsel were not warned of this, but they did not make any objection on this point at the hearing (see paragraphs 24-25 above).
(a) Preliminary objection
55. The Government contended that domestic remedies had not been exhausted in respect of this issue.
Before the Commission they pointed out merely that the membership had been changed in accor- dance with current legislation and practice and that the defence had not made any protest; they did not indicate on what legal basis such a protest could have been made, given the lawfulness of the change concerned. In its decision on admissibility the Commission noted that the Government did not mention any specific remedy.
Before the Court, on the other hand, the Government stated that the applicants could have had their protest against the failure to notify the identity of the judges as required by section 648 of the Xxxx- cature Xxx 0000 (see paragraph 44 above) entered in the record of the hearing and could then have applied to the Supreme Court to quash the subsequent proceedings for non-compliance with a man- datory legal rule and, if necessary, could, lastly, have complained to the Constitutional Court that the defence rights guaranteed in Article 24 of the Constitution had been infringed.
56. It is not apparent from the material before the Court that the Government had previously re- ferred to the said section 648 before the Commission, other than to state that it was inapplicable in the instant case. It was incumbent on them, however, to indicate sufficiently clearly the remedies to which they were alluding and to prove that they existed; in this area, it is not for the Convention bodies to cure of their own motion any shortcomings or lack of precision in respondent States’ ar- guments (see, as the most recent authority, the Bozano judgment of 18 December 1986, Series A no. 111, p. 19, para. 46). There is therefore an estoppel in respect of the preliminary objection.
Furthermore, the Government raised this objection for the first time at the hearing on 1 December 1987. Rule 47 of the Rules of Court, however, required them to file it before the expiry of the time- limit laid down for the filing of their memorial, with the result that it must also be rejected as being out of time (see the Xxxxxx judgment of 24 March 1988, Series A no. 130, p. 28, para. 56).
(b) The merits of the complaint
57. In the Court’s view, the circumstances surrounding the impugned change in the membership of the Audiencia Nacional do not appear to be such as to make its impartiality open to doubt. On the other hand, the change does have to be considered as regards its possible consequences for the fairness of the trial and notably of the hearing of 12 January 1982 (see paragraphs 71-72 below).
2. The admissibility of the complaints concerning the substitute presiding judge
58. With regard to the complaints concerning Mr Xxxxx Xxxxxx, the Government pointed out firstly that counsel for the applicants did not seek to challenge the substitute presiding judge, so as to make it possible, if their challenge was rejected, to lodge an appeal on points of law based on failure to comply with formal requirements (Article 851 para. 6 of the Code of Criminal Procedure
- see paragraph 43 above); and, secondly, that they did not complain, either, to the Constitutional Court that the Audiencia Nacional was biased (Article 24 para. 1 of the Constitution).
There is no estoppel here nor is the submission out of time, because the Government had raised this objection in substance before the Commission at the stage of the examination of admissibility (see,
inter alia , the Bozano judgment previously cited, Series A no. 111, p. 19, para. 44) and reiterated the objection in their memorial to the Court (Rule 47 para. 1 of the Rules of Court).
59. The Court notes first of all that the substitute presiding judge had already taken part in the proceedings on 18 December 1981, when the application to have the trial held in Barcelona was dismissed (see paragraph 23 above). Counsel for the defence could therefore have challenged him at that juncture.
Obviously, they did not at that time have any reason to think that Mr Xxxxx Xxxxxx would subse- quently be called upon to try their clients. They had no more reason to envisage such an eventuality after they had had a meeting with the titular presiding judge of the section, Mr de la Concha, on the day before the hearing (see paragraph 24 above). It nonetheless remains a fact that when they no- ticed Mr de la Concha’s absence the following morning, they did not manifest any disquiet regard- ing the new membership.
Admittedly, it is possible under Spanish law to challenge a judge only on certain grounds, which are laid down by law and relate, among other things, to the judge’s personality or his connections with the parties; furthermore, once the trial has begun, a judge can be challenged only in respect of subsequent events (see paragraph 44 above). But since counsel for the defence did not know in xx- xxxxx the name or personality of the substitute presiding judge, they could not, a priori, adduce any legal ground for a challenge. They claimed, however, that once the sitting had begun, they noticed that Mr Xxxxx Xxxxxx had Francoist insignia on his tie and cuff-links; he allegedly also showed hostility towards the defendants and some of the witnesses. They did not specify what form the hostility took. If such behaviour did in fact occur, it should at the very least have elicited from the applicants a protest on grounds of obvious hostility (see paragraph 44 above); yet no such protest was made during the trial.
On this issue, therefore, they did not exhaust the domestic remedies.
B. THE RIGHT TO A FAIR T RIAL
60. In the applicants’ submission, the change in the membership of the tria l court was not an iso- lated incident but was closely bound up with and was to be taken into account in regard to the way the trial at first instance was conducted, in particular the circumstances of the defendants’ transfer to Madrid, the security measures taken during the hearing, the “surprising” rapidity of the trial and the passive attitude of the public prosecutor. These, they claimed, were all factors which justified the conclusion that the court was already convinced of the applicants’ guilt and regarded the hear- ing of 12 January 1982 as a pure formality. At the time, however, the court - they submitted - could only have reached such a view on the basis of confessions extracted by the police, because the in- vestigating judge had not made any attempt to clarify the facts. The applicants also criticised the way in which the evidence was presented to the court, alleging that the principles of adversarial proceedings and of equality of arms had not been observed. They complained, among other things, that they had not been able to have the witness Mr Xxxxxxxx Xxxxxxxx examined.
Mr Xxxxxxx and Mr Xxxxxxx said additionally that they had not been assisted by a lawyer during their first appearance before the investigating judge.
61. Spain’s declaration recognising the right of individual petition (Article 25 of the Convention) took effect on 1 July 1981. The terms of that declaration prevent the Court from examining the phase prior to 1 July 1981 in itself but not from looking at the proceedings as a whole in or der to assess their fairness (see, in particular and mutatis mutandis, the Milasi judgment of 25 June 1987, Series A no. 119, p. 37, para. 31).
1. The Government’s preliminary objection
62. The Government raised an objection to the various complaints at issue, contending on sev- eral grounds that domestic remedies had not been exhausted.
63. They argued firstly that if, on account of the night-time journey to Madrid, the applicants’ physical and mental condition impaired their ability to conduct their defence, they ought to have applied for an adjournment of the hearing under Article 746 para. 5 of the Code of Criminal Proce-
dure. During the hearing before the Court, the Government further contended that the applicants could also have relied on Articles 745 and 393 of that Code.
The Government did not mention any of these three provisions before the Commission, although the latter had sent them a summary of the facts which included the allegation concerning the cir- cumstances and consequences of the applicants’ transfer from Barcelona to Madrid. There is there- fore estoppel.
Inasmuch as Articles 745 and 393 of the Code of Criminal Procedure are concerned, the plea also fails by reason of Rule 47 of the Rules of Court, since the Government raised it only during the oral proceedings.
Besides, Article 746 para. 5 could hardly provide a remedy for the complaint: while it does author- ise an adjournment if defendants are ill, it does not appear to apply to fatigue caused by a long journey only a few hours before the opening of the trial. According to one of the counsel present at the meeting with the presiding judge, Mr de la Concha, on 11 January 1982, the defence in fact proposed an adjournment as the applicants were then still in Barcelona (see paragraph 24 above).
64. As regards the applicants’ complaint relating to the brevity of their trial, the Government ob- jected that in their appeals on points of law to the Supreme Court the applicants failed to rely on paragraphs 1, 3 and 4 of Article 850 of the Code of Criminal Procedure. The Court notes, however, that these provisions deal with eventualities which did not occur in the instant case - refusal of pro- cedural orders needed to establish the facts and refusal to hear a witness’s reply to relevant ques- tions or to allow such questions to be put.
Moreover, the Government submitted before the Commission, and again before the Court, that counsel for the accused should have formally objected to the allegedly humiliating treatment of their clients and to any other alleged irregularity during the trial. They did not, however, state what legal basis there was for such an objection; accordingly, they have failed to indicate sufficiently clearly the existing remedies which the applicants failed to exhaust (see, inter alia, the Bozano judgment previously cited, Series A no. 111, p. 19, para. 46, and paragraph 56 above).
65. As regards the complaints relating to the taking of evidence, the Court agrees with the Commission (decision of 11 October 1985 on admissibility) that the applicants validly raised them in substance in the national courts; they relied in particular on Article 24 of the Spanish Constitu- tion, which essentially corresponds to Article 6 of the Convention (see paragraphs 30, 32 and 36 above).
66. Each ground of the preliminary objection must therefore be rejected.
2. The merits of the complaints at issue
67. The applicants claimed to be victims of a clear violation of paragraph 1 of Article 6 taken in conjunction with paragraphs 2 and 3 (d).
The Court recalls that the guarantees in paragraphs 2 and 3 (d) are specific aspects of the right to a fair trial set forth in paragraph 1 (see, inter alia , the Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29); it will therefore have regard to them when examining the facts under paragraph 1.
68. As a general rule, it is for the national courts, and in particular the court of first instance, to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce (see the same judgment, p. 15, para. 33, second paragraph in fine). The Court must, how- ever, determine - and in this it agrees with the Commission - whether the proceedings considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as re- quired by Article 6 para. 1. For this purpose it will consider in turn the various grounds of com- plaint before it (see paragraph 60 above).
(a) Transfer of the accused to Madrid
69. On 11 January 1982, that is to say the day before the opening of the hearing before the Audi- encia Nacional, the applicants were still in Barcelona Prison. They did not leave for Madrid until
the evening of 11 January. They arrived early in the morning of the following day after a journey of more than 600 kilometres in a prison van, although the hearing was due to start at 10.30 a.m. (see paragraph 24 above).
The fact, relied on by the Government, that the applicants had asked to be in Barcelona with their families and friends for Christmas (see paragraph 23 above) cannot justify such a late transfer, be- cause the Christmas festivities end on 6 January in Spain.
70. Mr Xxxxxxx, Mr Xxxxxxxx and Mr Xxxxxxx thus had to face a trial that was vitally important for them, in view of the seriousness of the charges against them and the sentences that might be passed, in a state which must have been one of lowered physical and mental resistance.
Despite the assistance of their lawyers, who had the opportunity to make submissions, this circum- stance, regrettable in itself, undoubtedly weakened their position at a vital moment when they needed all their resources to defend themselves and, in particular, to face up to questioning at the very start of the trial and to consult effectively with their counsel.
(b) Replacement of the presiding judge and another judge
71. On the very day of the hearing, Mr de la Concha, the presiding judge of the first section of the Criminal Division of the Audiencia Nacional, had to leave because his brother-in-law had been taken ill; and one of the other judges mentioned in the order of 27 October 1981 (see paragraph 23 above), Mr Xxxxxxx, was also unable to sit as he was no longer a member of the relevant section of the court. They were replaced by Mr Xxxxx Xxxxxx, the presidin g judge of the third section, and by Mr Xxxxxxxx xx xx Xxxxxx, a member of the first section (see paragraph 24 above).
72. Neither the applicants nor their lawyers were given notice of these changes, particularly the change of presiding judge (see paragraph 24 above). Mr Xxxxx Xxxxxx, together with Mr Xxxxxxxx and Mr Xxxxxxxx xx xx Xxxxxx, had admittedly taken a purely procedural decision on 18 December 1981 (see paragraph 23 above), but the defence lawyers could not infer from that that he would also be sitting on the trial court, bearing in mind in particular the preparatory meeting which they had had with Mr de la Concha on the previous day (see paragraphs 24 and 59 above). They were there- fore taken by surprise. They could legitimately fear that the new presiding judge was unfamiliar with an unquestionably complex case, in which the investigation file - which was of crucial impor- tance for the final result - ran to 1,600 pages. This is so even though Mr Xxxxxxxx, the reporting judge (see paragraphs 23 and 41 above), remained in his post throughout the entire proceedings: Mr Xxxxx Xxxxxx had not taken part in the preparatory meeting on 11 January 1982; the case in fact proceeded without a full hearing of the evidence; the deliberations were due to take place immedi- ately after the hearing, or at the latest on the following day (see paragraph 41 above); and the Audi- encia Nacional had to give its decision - and did in fact do so - within three days (see paragraphs 25, 29 and 41 above).
(c) Conduct of the trialof 12 January 1982 and taking of evidence
73. The hearing, with the five accused present, began on the morning of 12 January 1982 and ended the same evening. The Commission was surprised at its brevity in view of the complexity of the case, the considerable time that had elapsed since the occurrence of the facts and the protesta- tions of innocence made by the defendants to the judges concerned.
The applicants emphasised the public prosecutor’s passive attitude.
The Government contended that the length of a hearing depended on the nature and circumstances of the case, and on the attitude of the parties; in the instant case, the length was determined by the time needed to take evidence and to hear argument. There were two reasons why this whole proce- dure took only one day: the hearing was the last stage of proceedings after two earlier stages of in- vestigation and interim submissions; and then, by adopting the “por reproducida” procedure, the prosecution and the defence agreed to admit the file on the investigation in evidence without re- xxxxxxx the 1,600 pages to be read out in court.
74. The Court concludes from these submissions that there was in the instant case a direct link between the length of the trial and the more important problem of taking evidence during the trial. It will accordingly look at them together.
75. It should be noted firstly that although under Spanish legislation it is to a certain extent left to the initiative of the parties to offer and present evidence, this does not absolve the court of first instance from its duty of ensuring that the requirements of Article 6 of the Convention are complied with (see, inter alia and mutatis mutandis, the Goddi judgment of 9 April 1984, Series A no. 76, p. 12, para. 31). Indeed, Articles 315 and 729 para. 2 of the Code of Criminal Procedure authorise both the investigating judge and the trial court to obtain of their own motion evidence which they consider will assist in establishing the truth (see paragraphs 39-40 above).
76. In criminal cases, the whole matter of the taking and presentation of evidence must be looked at in the light of paragraphs 2 and 3 of Article 6 of the Convention (see paragraph 67 above).
77. Paragraph 2 embodies the principle of the presumption of innocence. It requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. It also follows that it is for the prosecution to inform the accused of the case that will be made against him, so that he may prepare and present his defence accordingly, and to adduce evidence sufficient to convict him.
According to the Government, this is the purpose of the intermediate stage of the proceedings when parties make their interim submissions and indicate the evidence which they propose to tender (see paragraph 40 above). In its interim submissions in the instant case, the public prosecutor gave his version of the facts and defined them in legal terms. He also listed the evidence he sought to have admitted, including the 1,600 page investigation file, the bulk of which did not concern the defen- dants; however, he did not specify in detail the particular evidence on which he based his account of the facts in relation to the defendants (see paragraph 22 above), and this made the defence’s task more difficult.
78. Paragraph 1 of Article 6 taken together with paragraph 3, also requires the Contracting States to take positive steps, in particular to inform the accused promptly of the nature and cause of the accusation against him, to allow him adequate time and facilities for the preparation of his defence, to secure him the right to defend himself in person or with legal assistance, and to enable him 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 la tter right not only entails equal treatment of the prosecution and the defence in this matter (see, mutatis mutan- dis, the Bönisch judgment of 6 May 1985, Series A no. 92, p. 15, para. 32), but also means that the hearing of witnesses must in general be adversarial.
In addition, the object and purpose of Article 6, and the wording of some of the sub-paragraphs in paragraph 3, show that a person charged with a criminal offence “is entitled to take part in the hear- ing and to have his case heard” in his presence by a “tribunal” (see the Colozza judgment of 12 February 1985, Series A no. 89, p. 14, para. 27, and p. 16, para. 32). The Court infers, as the Com- mission did, that all the evidence must in principle be produced in the presence of the accused at a public hearing with a view to adversarial argument. It will ascertain whether this was done in the instant case.
(i) Questioning of the accused
79. The hearing of 12 January 1982 began with the questioning of the applicants. In reply to questions from the public prosecutor, the private prosecutor and the defence lawyers, they denied any part in the murder of Mr Xxxxx. In doing so, they challenged all the evidence to the contrary, including their own confessions to the police, which they said were obtained by means of torture (see paragraph 25 above).
(ii) Examination of witnesses
80. Only one of the three eye-witnesses summoned to appear by the prosecution, Mr Xxxxx’x brother-in-law, actually gave evidence at the trial, and he did not recognise the applicants. The pub- lic prosecutor asked, however, that account should be taken of the statements made to the police by the other two (see paragraph 26 above); as these statements did not incriminate the accused, the de- fence raised no objection.
The ten witnesses called by the defence were meant to establish that the defendants had been ill- treated, so that the confessions obtained by the police would be declared inadmissible, and to tes- tify to the good civic behaviour of Mr Xxxxxxx, Mr Xxxxxxxx and Mr Xxxxxxx (see paragraph 27 above).
The evidence of the various witnesses was heard in circumstances that complied with the require- ments of Article 6 para. 1 taken in conjunction with paragraph 3 (d), because the witnesses were examined at a public hearing under an adversarial procedure (see paragraph 78 above).
(iii) Documentary evidence
81. In their interim submissions the prosecution (public and private) and the defence had re- quested that, respectively, all or some of the documents in the investigation file should be read out at the trial. Mr Xxxxxxx and Mr Xxxxxxxx sought also to have read out Mr Xxxxxxxx Xxxxxxxx’x statements withdrawing or modifying parts of his previous statement to the police implicating them in the murder (see paragraphs 15 and 17 above).
During the hearing, however, the parties agreed to dispense with having the file read out. The use of the “por reproducida” procedure had the consequence that much of the evidence was admitted without being exposed to public scrutiny.
82. The Government stated that there was nothing to prevent counsel for the applicants from re- questing that certain documents from the investigation file or indeed the whole file should be read out at the trial (see paragraph 40 above). As they had not done this, they had waived their right to do so.
According to the Court’s established case-law, waiver of the exercise of a right guaranteed by the Convention - in so far as it is permissible - must be established in an unequivocal manner (see, in- ter alia , the Colozza judgment previously cited, Series A no. 89, p. 14, para. 28). While the use of the “por reproducida” procedure showed that the defence accepted that the contents of the file need not be read out in public, it cannot be inferred from this that it agreed not to challenge the said con- tents even where the prosecution relied on them and, in particular, on the statements of certain wit- nesses; the grounds subsequently relied on by the defence before the Supreme Court and the Con- stitutional Court confirm this (see paragraphs 30 and 32 above).
83. By means of the “por reproducida” procedure, all the documents in the investigation file were included in the proceedings at the trial. The Court must, however, have regard to those evi- dential elements which were relevant to the proceedings against the applicants in order to deter- mine whether they had been procured in such a way as to guarantee a fair trial.
84. In Spain the adversarial nature of criminal proceedings extends, as the Government pointed out, to the investigation stage: the Code of Criminal Procedure enables an accused, with the assis- tance of his advocate, to intervene in respect of steps affecting him, as regards both his own and the prosecution’s evidence or measures taken by the investigating judge (see paragraph 39 above).
The Court notes, however, that in this case the investigation had commenced well before the appli- cants’ arrest on 14 October 1980. They obviously could not have played any part in it before then. On 22 December 1980, in Barcelona, Mr Xxxxxxx appointed an advocate and an attorney in order to take part in the proceedings, but the appropriate judge in Madrid did not record this until 20 Janu- ary 1981, after the applicants had been charged and less than a month before the completion of the investigation on 16 February 1981; as for Mr Xxxxxxxx and Mr Xxxxxxx, they instructed defence lawyers five days after the latter date (see paragraphs 21-22 above). Other than when their evidence was taken in Barcelona on 22 January 1981 (see paragraph 21 above), the applicants did not inter- vene at any stage of the investigation. In addition, the short time left prevented them in practice
from submitting evidence on the basis of a proper understanding of the case before the investiga- tion was completed. The public prosecutor did not submit any evidence at the time either.
Furthermore, the accused and their lawyers were in Barcelona, the city where the killing had taken place and where the witnesses lived, whereas the investigating judge performed his duties in Ma- drid. This caused real practical problems both for the witnesses and for the judge. In particular, al- most all the procedural steps had to be carried out by letters rogatory in Barcelona (see paragraphs 11, 15, 20 and 21 above).
Thus the deficiencies at the trial stage were not compensated by procedural safeguards during the investigation stage.
85. The evidence in the file included firstly (in chronological order) the statements made by Mr Xxxxxxxx Xxxxxxxx, who was the first person to incriminate the applicants (see paragraph 14 above) and was referred to as the principal indirect witness by the Delegate of the Commission. It may seem regrettable that it was not possible to ensure his presence at the trial on 12 January 1982, when the defence could have examined him on an adversarial basis. The respondent State cannot, however, be held responsible for that failure, as, when Mr Xxxxxxxx Xxxxxxxx was searched for by the police after the Supreme Court had upheld his conviction on 10 April 1981 (the relevant war- rant was issued on 24 April 1981), he could not be found (see paragraph 18 above).
Accordingly, the Audiencia Nacional had before it only the written text of Mr Xxxxxxxx Xxxxxxxx’x statements. The first statement implicated the applicants directly in the murder of Mr Xxxxx (see paragraph 14 above), but, as the Government themselves accepted, was not admissible evidence under Spanish law because it had been obtained by the police during his ten days in custody and without even a minimum of constitutional safeguards. Nevertheless, it appeared in the file. It was in fact the basis for the second statement, which was entered in the file by an investigating judge in Barcelona in the presence of an advocate and in which Mr Xxxxxxxx Xxxxxxxx withdrew part of his previous confession (see paragraph 15 above). Mr Xxxxxxx and Mr Xxxxxxxx were charged only on 16 March 1979, after the investigating judge in Madrid had been sent the statements (see paragraph 16 above). Before that, they had no standing to intervene in the proceedings against Mr Xxxxxxxx Xxxxxxxx and therefore could not examine him or have him examined; the same applied subse- quently during the latter’s trial, since they could not then be found (see paragraph 17 above).
86. The evidence of Mr Xxxxxxxx Xxxxxxxx, who had been set free on 17 June 1980, would have been of crucial importance, as was noted by the Supreme Court in its judgment of 27 December 1982 (see paragraph 31 above). The Court observes that the central investigating judge did not even attempt to hear Mr Xxxxxxxx Xxxxxxxx’x evidence after the arrest of the applicants on 14 October 1980, not only to confirm his identification of them but also to compare his successive statements with theirs and arrange a confrontation with the applicants. Admittedly, the latter could also have requested an opportunity to examine him; but this does not exonerate the judge, having regard in particular to the specific circumstances referred to in paragraph 84 above. In the end, the applicants never had an opportunity to examine a person whose evidence - which was vital, as is clear from the Supreme Court’s judgment of 27 December 1982 (see paragraph 31 above) - had been taken in their absence and was deemed to have been read out at the trial (see, mutatis mutandis, the Unte r- pertinger judgment previously cited, Series A no. 110, p. 15, para. 31): by the time the file was forwarded to the defence on 27 May 1981 for it to propose its evidence, Mr Xxxxxxxx Xxxxxxxx had absconded (see paragraphs 18 and 22 above).
87. The statements made by the accused themselves constituted another important item of xxx- xxxxx.
When they made their confessions to the police, they had already been charged (see paragraph 16 above) but did not have the assistance of a lawyer, although they do not appear to have waived their right to one. Accordingly, these confessions, which were moreover obtained during a long pe- riod of custody in which they were held incommunicado (see paragraph 19 above), give rise to res- ervations on the part of the Court. They were nevertheless appended to the police report and were pivotal in the questioning of the defendants by the investigating judges in Barcelona and by the pri- vate prosecutor at the hearing on 12 January 1982. The defence, however, tried to challenge them by claiming that the police had extracted them by torture.
When Mr Xxxxxxx and Mr Xxxxxxx made their first statements to the investigating judge in Barce- lona, they likewise did not have any legal assistance - whether of their own choosing or assigned by the court (Article 6 para. 3 (c) of the Convention) - and the file does not show that they had agreed to do without it. The appointment of counsel was not recorded until 20 January 1981 for Mr Xxx- berà, after he had been charged for the second time, and not until 21 February for Mr Xxxxxxxx and Mr Xxxxxxx, after the investigation had been completed (see paragraphs 16 and 21 above).
The Court also notes that the central investigating judge in Madrid never heard evidence from the defendants in person - even after the temporary transfer of one of them to the capital - despite the obvious contradictions in their successive statements (see paragraphs 21-22 above); he proceeded by way of letters rogatory.
88. The weapons, other items and documents found at the applicants’ homes, and subsequently at the places indicated by Mr Xxxxxxx and Mr Xxxxxxxx, were not produced in court at the trial, al- though they were relied upon by the prosecution as evidence. That being so, the defence was un- able to challenge their identification or relevance in a fully effective manner; after entering an ob- jection on this point before the Audiencia Nacional, counsel for the defence appealed to the Su- preme Court and the Constitutional Court (see paragraphs 25, 30 and 32 above).
(d) Conclusion
89. Having regard to the belated transfer of the applicants from Barcelona to Madrid, the unex- pected change in the court’s membership immediately before the hearing opened, the brevity of the trial and, above all, the fact that very important pieces of evidence were not adequately adduced and discussed at the trial in the applicants’ presence and under the watchful eye of the public, the Court concludes that the proceedings in question, taken as a whole, did not satisfy the requirements of a fair and public hearing. Consequently, there was a violation of Article 6 para. 1.
II. ARTICLE 6 PARA. 2 OF THE CONVENTION
90. Mr Xxxxxxx and Mr Xxxxxxxx also claimed to be victims of a failure to apply the presump- tion of innocence, stating that they were convicted solely on the basis of their confessions to the po- lice and that the Audiencia Nacional showed signs of bias against them.
Relying on the terms of the judgments of the Supreme Court and the Constitutional Court, the Gov- ernment stated that the Audiencia Nacional had in fact had other evidence before it.
91. The presumption of innocence will be violated if, without the accused’s having previously been proved guilty according to law, a judicial decision concerning him reflects an opinion that he is guilty. In this case, it does not appear from the evidence that during the proceedings, and in par- ticular the trial, the Audiencia Nacional or the presiding judge had taken decisions or attitudes re- flecting such an opinion. The Court therefore does not find a violation of Article 6 para. 2 of the Convention.
III. THE APPLICATION OF ARTICLE 50
92. The applicants made various claims under Article 50, which provides as follows: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Con- vention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
At the hearing, the Government pointed out that if the Court were to find a violation, the applicants could bring an action for damages in Spain. They added that the judgment of the Court would con- stitute adequate compensation for the alleged non-pecuniary damage and that the costs and ex- penses claimed by the applicants had not been adequately proved.
93. In the circumstances of the case, the Court considers that the question of the application of Article 50 is not yet ready for decision. It is therefore necessary to reserve the matter, taking due account of the possibility of an agreement between the respondent State and the applicants (Rule 53 paras. 1 and 4 of the Rules of Court).
FOR THESE REASONS, THE COURT
1. Rejects unanimously, on the ground of estoppel and because it was raised out of time, the Government’s objection that domestic remedies had not been exhausted in respect of the complaint concerning the change of membership of the Audiencia Nacional without notice;
2. Holds unanimously that the applicants have not exhausted domestic remedies in respect of their complaints concerning the substitute presiding judge of the Audiencia Nacional;
3. Rejects unanimously, on the ground of estoppel and, in part, because it was raised out of time and was unfounded, the Government’s objection that domestic remedies had not been ex- hausted in that the applicants did not apply to the Audiencia Nacional for an adjournment of the trial;
4. Rejects by seventeen votes to one, as unfounded, the remainder of the Government’s objec- tion that domestic remedies had not been exhausted;
5. Holds by ten votes to eight that there has been a breach of Article 6 para. 1;
6. Holds unanimously that there has been no breach of Article 6 para. 2;
7. Holds unanimously that the question of the application of Article 50 is not yet ready for de- cision;
accordingly,
(a) reserves the whole of the said question;
(b) invites the Government and the applic ants to submit, within the next three months, their fur- ther observations on the matter and, in particular, to notify the Court of any agreement they may reach;
(c) reserves the further procedure and delegates to the President of the Court the power to fix the same if need be.
[omissis]
In accordance with Article 51 para. 2 of the Convention and Rule 52 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint dissenting opinion of Mr Xxxx Xxxxxxxxxxxx, Mrs Xxxxxxxxxxxx-Xxxxxx, Mr Xxxxxxxx, Mr Xxxxxxxx, Mr Xxxxx, Mr Xxxxx, Mr Xxxxxxxx and Mr Xxxxxx Xxxxxxxxx;
(b) joint concurring opinion of Mr Xxxxxxxxx, Mr Pettiti and Mr Xxxxxxxxx. [omissis]
Corte europea dei diritti dell’uomo, sent. 7 agosto 1996, Xxxxxxxxxxx e Xxxxxxxxxx v. Italia (ric. n. 19874/92) (1)
[omissis]
AS TO THE FACTS
7. Mr Xxxxxxxx Xxxxxxxxxxx and Mr Xxxxxxx Xxxxxxxxxx, who were born respectively in 1958 and 1959 at Alcamo (Trapani) and who currently live in Brazil, have a heavy prison sentence pend- ing against them following their conviction by the Caltanisetta Court of Appeal on 6 April 1991 in a judgment that was upheld by the Court of Cassation on 8 January 1992 (see paragraphs 30 and 32 below).
A. THE INVESTIGATION
1. The beginning of the inquiry
8. On 26 January 1976 two police officers (carabinieri) were murdered at a barracks in Alcamo Marina. Some clothes, firearms and ammunition were found to be missing.
9. In the night of 11 to 12 February the Alcamo police arrested Mr X.X. who was driving a car with false registration plates. He was found to be unlawfully in possession of firearms. The police concluded on the basis of an initial inspection that one of the two pistols that they had seized had been used to commit the murders and the other had been stolen from the barracks.
10. G.V. was taken to the police station and gave the name of a lawyer, who was not able to come immediately. In the latter’s absence, G.V. agreed to an informal interview in the course of which he stated that he belonged to a revolutionary group. Shortly afterwards he asked to see his father, in whose presence he made other revelations concerning the circumstances of the raid, which had been directed against the Italian State rather than the two police officers. While his fa- ther was out of hearing, G.V. told the investigators that the applicants and two other persons, G.M. and G.G., had taken part in the crime. All four were friends of his; Mr Xxxxxxxxxxx was in fact his cousin. G.V. also gave the police information as to the whereabouts of the articles stolen during the attack.
11. When his lawyer arrived at 3 a.m. on 13 February, G.V. confirmed that he had committed the murders, but retracted his statements concerning the involvement of the other persons. A little later he repeated in writing his first statements indicating what part each of those concerned had played.
2. The applicants’ arrest
12. The applicants and the other suspects were arrested at their homes between 4 and 5 a.m. on 13 February 1976. They were taken to the Alcamo barracks and were immediately questioned by the carabinieri. At first they were questioned on their own and then, after 10 a.m., a lawyer ap- pointed by the authorities to act for them was present. They all admitted having taken part in the attack, but gave accounts that were inconsistent with each other and with that given by G.V.
13. According to the admissions register of Trapani prison, when the applicants arrived at the prison they appeared to be in a state of shock and had bruises and abrasions. Mr Xxxxxxxxxxx told the staff of the admissions office that he had slipped and injured himself.
(1) Testo tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
14. In the course of the afternoon of 13 February, the Trapani public prosecutor questioned all the suspects. G.V. reaffirmed that he had committed the double murder, but again retracted his statements concerning the involvement of the applicants, maintaining that he had made them under duress. Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx also retracted their confessions. Mr Xxxxxxxxxxx likewise referred to pressure brought to bear on him by the investigators and ill-treatment at their hands. Mr Xxxxxxxxxx claimed that the police officers had persuaded him that it was in his interests to make a confession because, in view of the damming accusations made by G.V., he would be sentenced to life imprisonment if he did not. At a later stage he maintained that he too had suffered ill- treatment. Expert medical examinations established that the applicants had slight injuries to their bodies.
15. After a period during which he refused all communication with the investigators and his family, in July 1977 G.V. wrote a letter to the investigating judge asking to be questioned. During his interview with the judge, which was attended by a lawyer appointed by the authorities to act for him, he indicated that he intended to make new revelations in writing.
On 26 October 1977 he was found hanged from a high window in the prison hospital with a hand- kerchief in his mouth. G.V had only one arm, but the authorities concluded that he had committed suicide.
3. The committal for trial
16. On 23 January 1978 the applicants, who had not had an opportunity to examine or have ex- amined G.V. in the proceedings prior to his death, were committed for trial with the two other ac- cused.
17. On 18 May 1978 the Trapani Assize Court quashed the committaland ordered further inquir- ies to establish whether the applicants’ allegations about the pressure to which they had been sub- jected could be substantiated, to identify the presumed perpetrators of the ill-treatment and to verify whether the statements to the police officers were credible and voluntary.
The prosecuting authority lodged an appeal on points of law, which was dismissed in January 1979.
18. As the maximum period for pre-trial detention had expired, the applicants were released on 19 May 1979.
On 11 March 1980, the new investigation having reached its conclusion, the four accused were committed for trial. The investigating judge found that there was no case to answer in the matter of the alleged ill-treatment as the material facts of the offence had not been established (SHUFKp□il fatto non sussiste ). He took the view that the injuries noted by the medical reports had been caused by blows received by the accused in the struggles which occurred during their transfer from the bar- racks. Indeed some of the police officers who had been present at the time had similar injuries. The state of shock observed on their arrival at the prison was attributed to a lack of sleep and the lengthy interrogation. As regards the description by the accused of the premises where the alleged ill-treatment had been carried out and the fact that the accused had named the two officers who were said to have perpetrated the violence, the judge concluded that they could have seen the prem- ises in question on a previous occasion and that the two officers were well known in the small town of Alcamo.
B. THE TRIAL PROCEEDINGS
1. The first trial
19. The proceedings in the Trapani Assize Court began on 25 November 1980 and ended on 10 February 1981 with the acquittal, on the basis of the benefit of the doubt, of the applicants and G.G.
G.M. was convicted and sentenced to life imprisonment.
20. The prosecuting authority and the accused appealed. Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx, in particular, sought their unqualified acquittal.
21. On 23 June 1982 the Palermo Assize Court of Appeal, basing its decision essentially on the statements made to the police officers, also found the applicants and G.G. guilty of the double murder.
22. On 22 December 1984 the Court of Cassation, to which G.M., G.G., Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx had appealed, on a date that has not been specified, quashed the judgment of 23 June 1982 and remitted the case of G.M. and G.G. to Palermo Assize Court of Appeal and that of the applicants to the Juvenile Section of the Palermo Court of Appeal.
The Court of Cassation noted that even if the pressure described by the appellants had not been as serious as they claimed, the contested confessions had been made without a judicial officer being present. The Trapani judges had not intervened in the first stage of the inquiry except to carry out acts of a purely formal nature. For thirty-six hours the carabinieri had thus been completely free to conduct their inquiries as they wished.
2. The second trial
23. On 7 March 1986 the Juvenile Section of the Palermo Court of Appeal acquitted the appli- cants on the basis of the benefit of the doubt.
The prosecuting authority and the applicants again appealed to the Court of Cassation.
24. On 12 October 1987 the Court of Cassation quashed the decision of the court below on the ground that it had regarded as established the facts found in the judgment of 22 December 1984, whereas those facts ought to have been the subject of a new investigation. The case was remitted to the Juvenile Section of the Caltanisetta Court of Appeal.
At the same time the Court of Cassation set aside the judgment of the Palermo Assize Court of Ap- peal of 26 November 1985 convicting G.G. and sentencing him to life imprisonment. The case was remitted to the Caltanisetta Assize Court of Appeal for a decision as to whether there were any ex- tenuating circumstances.
25. On 31 May 1988 the Juvenile Section of the Caltanisetta Court of Appeal quashed the judg- ment of the Trapani Assize Court of 10 February 1981 in so far as it concerned the applicants and transmitted the file to the Palermo public prosecutor’s office. Allowing the objection raised by counsel for Mr Xxxxxxxxxx, the appeal court applied the Constitutional Court’s judgment of 15 July 1983 (no. 222) which had declared Article 9 of the Royal Legislative Decree of 20 July 1934 (no. 1404) unconstitutional. That provision had removed from the jurisdiction of the juvenile court (tribunale per i minorenni) criminal proceedings brought against minors accused of committing a criminal offence in concert with adults.
26. On 2 June 1988 the Assize Court of Appeal, presided over by Judge S.P., accorded G.G. the benefit of general extenuating circumstances. It took the view that the facts had been definitively established by the Palermo Assize Court of Appeal, it referred to the “co-perpetrators” of the dou- ble crime and to the “precise statement by G.V. that G.G. together with Xxxxxxxxxx had been re- sponsible for physically carrying out the murders”.
27. On 6 October 1989 the Palermo Juvenile Court, which was trying the case at first instance, acquitted the applicants on the basis of the benefit of the doubt. The applicants and the prosecuting authority appealed.
28. By an order of 18 April 1990 the Juvenile Section of the Palermo Court of Appeal raised a question as to the proper jurisdiction and transferred the file to the Court of Cassation. It consid- ered that, in declaring the nullity of the judgment of the Trapani Assize Court of 10 February 1981
- applying retrospectively the decision of the Constitutional Court - the Juvenile Section of the Cal- tanisetta Court of Appeal had breached Article 544 of the former Code of Criminal Procedure, which was in force at the time and which prohibited raising at a retrial on remittal grounds of nul- lity allegedly arising out of the conduct of earlier stages in the proceedings or the investigation.
29. On 2 October 1990 the Court of Cassation remitted the case to the Juvenile Section of the Caltanisetta Court of Appeal, having confirmed the validity of the judgment of 10 February 1981.
3. The third trial
30. On 6 April 1991 that court, presided over by S.P., who had also presided over the Caltani- setta Assize Court of Appeal in G.G.’s trial (see paragraph 26 above), sentenced Mr Xxxxxxxxxx to twenty-two years and five months’ imprisonment and a fine of 450,000 Italian lire.
Mr Xxxxxxxxxxx was sentenced to fourteen years and ten months. In its judgment the court noted that lawyers had been continuously present throughout the interrogations, which ruled out any possibil- ity of pressure of such a nature as to undermine the credibility of the confessions. Admittedly one of the lawyers appointed by the authorities to act for the applicants maintained that he had found Mr Xxxxxxxxxxx chained to a radiator, but according to the same person he had been re leased before the beginning of the interrogation.
Referring to Article 192 para. 3 of the new Code of Criminal Procedure, which provides that state- ments made by a person accused of the same offence may be relied on only if they are corroborated by other items of evidence which confirm their credibility, the appeal court based its decision, inter alia, on the following considerations: (a) the fact that the accused had all made statements impli- cating each other; (b) the fact that it would have taken five people to carry out such an attack; (c) the credence that could be attached to the statements of G.V. concerning his responsibility, which was confirmed by other physical evidence; (d) a number of items of evidence establishing that those statements were voluntary; (e) the fact that the accused were friends; (f) the fact that the applicants had helped G.V. to buy or transport the oxygen bottles for the oxyacetylene torch used to cut open the barracks door; (g) the fact that on the evening of 12 February 1976 G.V.’s father had been seen by the carabinieri, who were following him, in the applicants’ company, near Mr Xxxxxxxxxx’x home, and on that occasion the latter had appeared worried, while Mr Xxxxxxxxxxx had sought to reassure him; (h) the discovery at Mr Xxxxxxxxxx’x home of a box of matches of a brand that was no longer manufactured, the matches being the same type as those used to light the oxya- cetylene torch and found in a garage rented by G.V. The matches had been stolen by G.V. from a tobacconist in January 1976; (i) finally the lack of a convincing alibi for any of the accused.
31. On 4 June 1991 the prosecuting authority and the applicants appealed to the Court of Xxxx- xxxxx complaining, inter alia, of the inadequacy of the appeal court’s statement of grounds.
32. In a judgment of 8 January 1992, deposited in the registry on 28 February, the Court of Cassation dismissed the applicants’ appeal, finding that the appeal court’s assessment of G.V.’s statements implicating them, their confessions and the corroborating evidence was not open to critic ism in terms of the statement of grounds.
33. An application of 18 January 1992 seeking a pardon from the President of the Republic was rejected on a date that has not been specified.
PROCEEDINGS BEFORE THE COMMISSION
34. Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx applied to the Commission on 2 February 1992. Relying on Article 6 paras. 1 and 3 (d) of the Convention, they complained that: (1) their case had not been heard within a reasonable time; (2) the proceedings and their conviction had been based on confes- sions obtained by the carabinieri under duress and the testimony of G.V., whom they had been un- able to examine or have examined before his death; (3) the President of the Juvenile Section of the Caltanisetta Court of Appeal, which convicted them in 1991, had already expressed his firm view that they were guilty in 1988 in another trial concerning one of the other perpetrators of the same offence; (4) the case had initially not been tried by a court for juveniles.
35. On 30 August 1993 the Commission declared the application (no. 19874/92) admissible as regards the first three complaints and inadmissible for the rest. In its report of 2 March 1995 (Arti- cle 31), it expressed the unanimous opinion that there had been a violation of Article 6 on each of the three points. The full text of the Commission’s opinion is reproduced as an annex to this judg- ment.
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
36. The Government invited the Court to hold that there had been no violation of Article 6 of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION (art. 6)
37. The applicants complained in the first place of the length of the proceedings brought against them, secondly that they had not had a fair trial and finally of the lack of impartiality of the Juve- nile Section of the Caltanisetta Court of Appeal. They relied on Article 6 paras. 1 and 3 (d) of the Convention, according to which: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an ... impartial 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;...”
A. REASONABLE TIME
38. The relevant period began on 13 February 1976, the date of the applicants’ arrest, and ended on 28 February 1992, when the Court of Cassation’s judgment was deposited in the registry. It lasted sixteen years and two weeks.
39. The reasonableness of the length of proceedings is to be determined with reference to the cri- teria laid down in the Court’s case-law and in the light of the circumstances of the case, which in this instance call for an overall assessment.
40. The Government conceded that the total duration of the proceedings might at first sight ap- pear excessive, but justified it firstly on the basis of the undeniably complex nature of the investi- gation because of the statements and confessions made and then retracted by the accused and sec- ondly by citing the difficult transitional period which had followed the judgment of the Constitu- tional Court of 15 July 1983 recognising the jur isdiction of the juvenile courts for offences commit- ted by minors.
41. The applicants disputed the reasons given by the Government. On the first point, their retrac- tions could not be regarded as a circumstance having contributed to making the investigation more complex because every accused is entitled not to cooperate with the investigators. For the rest, it was, in their opinion, unfortunate that the Italian State had not managed to enact clear le gislation following the above-mentioned judgment of the Constitutional Court.
42. The Court shares the Commission’s view that the case was undoubtedly complex having re- gard to the nature of the charges and to the problems in determining jurisdiction for offences com- mitted by minors acting in concert with adults. Taken separately, the different phases of the pro- ceedings were, in addition, conducted at a regular pace, apart from the inexplicable period of stag- nation of nearly two years during the first investigation, from 13 February 1976 (arrest and interro- gation of the applicants) to 23 January 1978 (committal for trial).
If the case is examined as a whole however, the only possible conclusion is that the reasonable time requirement was not complied with because, and this is the decisive consideration, the applicants were not convicted with final effect until sixteen years after the events, which had occurred when they were still minors.
43. There has accordingly been a violation of Article 6 para. 1 in this respect.
B. FAIR TRIAL
44. The applicants claimed to have been the victims of a breach of Article 6 paras. 1 and 3 (d) in that they had been convicted on the basis of confessions obtained by the investigators using phys i-
cal and psychological pressure. They also complained of the impossibility of examining or having examined before his death, G.V., the prosecution witness.
1. The confessions allegedly obtained under duress
45. The Government affirmed that the applicants’ trial had been a fair one. They denied the use of any coercion by the investigators during the applicants’ interrogation; the fact that the proceed- ings instituted against the police officers for ill-treatment had been concluded by a finding that there was no case to answer confirmed this. They further maintained that the judicial authorities had, after an extremely thorough examination of all the information before them, relied, in order to convict the applicants, not only on their confessions but also on the statements of the three other accused and on other evidence.
46. According to the Delegate of the Commission, there can be no doubt that the applicants un- derwent ill-treatment at the hands of the carabinieri. Citing the judgments of Xxxxxx x. France of 27 August 1992, Series A no. 241-A, and Xxxxxxxx v. Austria of 4 December 1995, Series A no. 336, he called upon the Court to confirm its case-law according to which, in substance, it falls to the respondent State to adduce the proof that injuries sustained by a person in police custody were not caused by the investigators. In this case the Government had not provided any plausible expla- nation for the applicants’ injuries.
47. The Court notes at the outset - and this was conceded by the Delegate of the Commission at the hearing on 21 February 1996 - that, in contrast to the situation in the above-mentioned Xxxxxx and Ribitsch cases, the present applicants have not sought to rely on Article 3 of the Convention which prohibits torture and inhuman and degrading treatment.
48. It recalls that 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 the evi- dence was ta ken, were fair (see the following judgments: %DUEHUj , 0 HVVHJXp□and Jabardo v. Spain of 6 December 1988, Series X xx. 000, x. 00, xxxx. 00, Xxxxx x. Xxxxxx of 19 December 1990, Se- ries A xx. 000-X, x. 00, xxxx. 00, xxx ,XX Xx v. Italy of 19 February 1991, Series A no. 194-A, p. 11, para. 31).
49. In the present case, on 18 May 1978, the Trapani Assize Court, quashing the decision of 23 January 1978 committing the applicants for trial, ordered additional investigative measures to de- termine the truth of the allegations and the identity of the perpetrators of the alleged ill-treatment (see paragraph 17 above). However, the investigating judge held that there was no case to answer, finding that the injuries reported could be attributed to the blows received by the applicants in the course of struggles with the crowd during their transfer to Trapani prison (see paragraph 18 above). Indeed some of the carabinieri present at the time bore similar marks. In this respect the present case may be distinguished from the Tomasi and Ribitsch cases.
50. The Court observes that doubts may subsist as to the conduct of the carabinieri during the applicants’ interrogations; in their submissions before the Commission the Government themselves referred to a feeling of animosity on the part of the carabinieri. However, the evidence adduced does not provide a sufficient basis for the Court to depart from the findings of the judge responsible for the investigation. It accordingly takes note of the conclusions of the supplementary investiga- tion.
2. The impossibility of examining or having examined G.V.
51. The Court recalls that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1. This must therefore be taken into account when ex- amining this limb of the second complaint under paragraph 1 (see, among other authorities, the
%DUEHUj , 0 HVVHJXp□and Xxxxxxx judgment cited above, p. 31, para. 67).
In addition, 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 of statements obtained at the pre- trial stage is not in itself inconsistent with paragraphs 3 (d) and 1 of Article 6, provided that 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 ,VJ Uz judgment cited above, p. 12, para. 34).
52. In this instance, even though the judicial authorities did not, as would have been preferable, organise a confrontation between all the accused during the twenty months preceding G.V.’s tragic death, they cannot be held responsible for the latter event. Furthermore, in its judgment of 6 April 1991, the Juvenile Section of the Caltanisetta Court of Appeal carried out a detailed analysis of the prosecution witness’s statements and found them to be corroborated by a series of other items of evidence, such as the fact that all the accused had made statements implicating each other, the fact that the applicants had helped G.V. to buy and to transport the two gas bottles used in the attack on the barracks and the lack of a convincing alibi for either of the accused (see paragraph 30 above).
3. Conclusion
53. In the light of these considerations, the Court takes the view that the applicants had a fair trial and that there has been no violation of Article 6 paras. 1 and 3 (d).
C. IMPARTIAL TRIBUNAL
54. According to Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx, the Juvenile Section of the Caltanisetta Court of Appeal which convicted them in 1991 could not be regarded as an impartial tribunal within the meaning of paragraph 1 of Article 6 of the Convention, as its President - Judge S.P. - had already had to consider their case when he had presided over the Caltanisetta Assize Court of Ap- peal in G.G.’s trial. This was clearly demonstrated by the wording of the judgment of 2 June 1988, sentencing G.G. to a long term of imprisonment.
55. The Government maintained in substance that the two trials had not concerned the same per- sons and that, in any event, Judge S.P. was the only one of the five Court of Appeal judges to have already dealt - “in a very marginal way” - with the applicants’ case.
56. The Court recalls that the existence of impartiality for the purposes of Article 6 para. 1 must be determined according to a subjective test, that is on the basis of the personal conviction and be- haviour of a particular judge in a given case, and also according to an objective test, that is ascer- taining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this re- spect (see, among other authorities, the Xxxxxxxxxx v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 46, and the Thomann v. Switzerland judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 815, para. 30).
57. As to the first test, the applicants did not question the personal impartiality of the judge con- cerned.
58. Under the second, it must be determined whether, quite apart from the judge’s conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appear- ances may be of a certain importance. What is at stake is the confidence which the courts in a de- mocratic society must inspire in the public. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular ju dge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held objectively justified (see the Xxxxxxxxxx judgment, cited above, p. 21, para. 48, and, mutatis mutandis, the Fey
v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12, para. 30).
59. Like the Commission, the Court notes that in the instant case the fear of a lack of impartia lity derived from a double circumstance. In the first place, the judgment of 2 June 1988 of the Caltani- setta Assize Court of Appeal, presided over by Judge S.P. (see paragraph 26 above) contained nu- merous references to the applicants and their respective roles in the attack on the barracks. In par- ticular, mention was made of the “co-perpetrators” of the double crime and of “the precise state- ment by G.V. that G.G. together with Xxxxxxxxxx had been responsible for physically carrying out the murders”, and it was affirmed that Mr Xxxxxxxxxxx had helped to search the barracks and to transport material belonging to the carabinieri. Secondly, the judgment of the Juvenile Section of
the Caltanisetta Court of Appeal of 6 April 1991 (see paragraph 30 above) convicting the appli- cants cited numerous extracts from the decision of the Assize Court of Appeal concerning G.G. In the Juvenile Section it was once again Judge S.P. who presided and indeed he was the reporting judge.
60. These circumstances are sufficient to hold the applicants’ fears as to the lack of impartiality of the Juvenile Section of the Caltanisetta Court of Appeal to be objectively justified.
There has accordingly been a breach of Article 6 para. 1 on this point.
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION
61. Under Article 50 of the Convention, “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the de- cision of the Court shall, if necessary, afford just satisfaction to the injured party.”
A. DAMAGE
62. On 9 February 1996 counsel for Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx lodged with the registry his clients’ claims for the damage sustained.
63. The Government contended that the claims were time-barred.
64. According to the Delegate of the Commission, the applicants had not really provided an ex- planation for their delay in submitting the document in question.
65. The Court notes that under Rule 52 para. 1 of Rules of Court, any claims that the applicant “may wish to make under Article 50 of the Convention shall ... be set out in his memorial or, if he does not submit a memorial, in a special document filed at least one month before the date fixed ... for the hearing”. The applicants’ lawyer, who did not submit a memorial, did not communicate the claims for just satisfaction until 9 February 1996 (see paragraph 4 above).
The applicants were granted sufficient time for the submission of their claims, which must there- fore be dismissed as out of time.
B. COSTS AND EXPENSES
66. The applicants did not seek the reimbursement of their costs and expenses incurred in the na- tional courts. As regards those relating to the proceedings before the Court, Mr Xxxxxxxxxxx and Mr Xxxxxxxxxx received legal aid totalling 9,724 French francs; they did not make a claim for an addi- tional amount.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of Article 6 para. 1 of the Convention as regards the length of the proceedings;
2. Holds unanimously that there has been no violation of Article 6 paras. 1 and 3 (d) as regards the right to a fair trial;
3. Holds by eight votes to one that there has been a violation of Article 6 para. 1 on account of the lack of impartiality of the Juvenile Section of the Caltanisetta Court of Appeal;
4. Dismisses unanimously the applicants’ claims for just satisfaction.
[omissis]
In accordance with Article 51 para. 2 of the Convention and Rule 55 para. 2 of Rules of Court B, the partly dissenting opinion of Mr Xx Xxxxx is annexed to this judgment.
[omissis]
Corte europea dei diritti dell’uomo, sent. 25 febbraio 1997,
Z. c. Finlandia (ric. n. 22009/93) (1)
[omissis]
AS TO THE FACTS
I. PARTICULAR CIRCUMSTANCES OF THE CASE
A. INTRODUCTION
9. The applicant is a Finnish national, resident in Finland, and was at the time of the events which gave rise to her complaints under the Convention married to X, who was not Finnish. They divorced on 22 September 1995. They are both infected with the human immunodeficiency virus (HIV).
10. On 10 March 1992 the Helsinki City Court (raastuvanoikeus, UnGVWXYXUltten) convicted X and sentenced him to a suspended term of imprisonment for rape on O. on 12 December 1991. The City Court held the trial in camera and ordered that the documents submitted in the case remain confidential for a certain period.
11. On 19 March 1992 X was informed of the results of a blood test performed on 6 March 1992, indicating that he was HIV-positive.
B. FURTHER COMPLAINTS OF SEXUAL OFFENCES LODGED AGAINST X
12. In early March 1992, following a complaint of a sexual offence lodged by X., the police opened an investigation into attempted manslaughter, suspecting X of having deliberately subjected
M. to a risk of infection with HIV on 1 March.
According to the facts as established by the Commission, during a police interview on 5 March 1992 M. identified X as the perpetrator and the police informed her that X’s spouse, the applicant, was HIV-positive. On 10 April 1992, the police advised M. that X was also infected.
At the hearing before the Court the Government disputed the Commission’s finding that the police had informed X. that the applicant was an HIV carrier. The Delegate replied that the finding had been based on corroborative evidence in the police investigation record and the minutes of the en- suing proceedings before the City Court (see paragraph 19 below).
13. M.’s boyfriend X. met the applicant in mid-March 1992 and asked her whether her husband was an HIV carrier. On 6 April 1992 T. telephoned her and cited passages from confidentia l court documents relating to the trial mentioned in paragraph 10 above. On 14 April T. was interviewed by the police as to the content of this conversation.
14. On 7 April 1992 the police attempted to interview the applicant but, as she was married to X, she relied on her right under Finnish law not to give evidence against her spouse (chapter 17, Arti- cle 20 para. 1, of the Code of Judicial Procedure (RLNHXGHQNl ymiskaari, Ul WWHJnngsbalk )).
15. On 22 April 1992 the public prosecutor charged X with sexual assault on M. On 20 May 1992 M. brought a charge against X of attempted manslaughter.
16. On 10 September 1992, following complaints of rape lodged by P.-L. and P., X was arrested and detained on remand, on suspicion of attempted manslaughter by having raped the complainants earlier that month and thereby deliberately subjected them to a risk of HIV infection.
(1) Testo tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
17. On 14 September 1992 the police interviewed the applicant but she again refused to give evidence against her spouse. She feared that the documents in the case, including any statement she made, would not remain confidential.
18. On 18 September 1992 R. lodged a complaint with the police against X for rape committed on 19 December 1991. The police officer who recorded the complaint added to the record a state- ment that the applicant had already been found to be HIV-positive in 1990.
The Government submitted at the Court’s hearing that it was X. who had told this to the police. The police opened an investigation into attempted manslaughter in this case also.
On 7 October and 2 December 1992 and 24 March 1993, the public prosecutor read out in court charges against X of attempted manslaughter in respect of offences committed against M. on 1 March 1992, against P. on 10 September 1992 and against P.-L. on 5 and 6 September 1992. Such charges were also brought by P.-L. on 16 December 1992 and by X. on 19 May 1993 in relation to offences committed respectively on 31 August 1992 and 19 December 1991.
C. ORDERS OBLIGING THE APPLICANT’S DOCTORS AND PSYCHIATRIST TO GIVE EVIDENCE
19. On 22 April 1992, at the City Court’s first hearing, held in public, X refused to reply to a question put by M.’s counsel as to whether the applicant was also an HIV carrier.
At a further hearing on 6 May 1992, the City Court decided at the parties’ request that the case should be heard in camera.
X. confirmed that she had been informed by the police that the applicant was HIV-positive and T. gave evidence on the content of his telephone conversation with the applicant on 6 April 1992 (see paragraph 13 above).
20. On 18 May 1992 and with X’s consent, L., senior doctor at the hospital where X and the ap- plicant had been treated, transmitted copies of X’s medical records to the public prosecutor. These had been edited so as to omit all references to the applicant.
21. The City Court summoned the applicant to appear before it as a witness on 20 May 1992, but she again relied on her right not to give evidence in a case concerning her husband.
22. On 27 May 1992 M.’s counsel informed the public prosecutor that the copies of X’s medical records appeared to be incomplete. That same day the public prosecutor asked the police to obtain statements from senior doctor X. and any other doctors who had been treating X, whether as experts or ordinary witnesses, in order to obtain information from them on when X had become aware of his HIV infection.
23. On 12 August 1992, despite his objections, the City Court ordered senior doctor X. to give evidence. He disclosed to the court medical data concerning the applicant which had been omitted from the copies of X’s medical records referred to in paragraph 20 above.
The City Court, by way of an interim measure, ordered that the court file, including the transcripts of senior doctor L.’s evidence, be kept confidential.
24. At the hearings of the City Court on 23 September and 18 November 1992, X refused to an- swer a question put by counsel for the complainants (M., P.-L., P. and R.) as to whether the appli- cant was HIV-positive. On 30 December 1992, counsel asked him when he had become aware that she was infected. However, X again refused to answer.
25. On 23 September 1992 senior doctor X. complained to the parliamentary ombudsman (eduskunnan oikeusasiamies, riksdagens justitieombudsman) about the court decision ordering him to give evidence. In an opinion of 5 February 1993 the parliamentary ombudsman expressed the view that the domestic law had not been violated and that the City Court had properly balanced the public interest in investigating crime against the applicant’s interests in protecting the confidentia l- ity of the information in question.
26. At a court hearing on 27 January 1993, Dr X., who had also treated the applicant, was, de- spite his objections, required to give evidence as a witness for the prosecution and to disclose in- formation about the applicant. He did so.
27. On 6 February 1993 the police interviewed Dr X.X. as an expert. He provided them with general information on HIV infection and contamination.
28. On 10 February 1993 the public prosecutor requested the police to interview the applicant’s doctors as witnesses in the investigation into the charges against X of attempted manslaughter (see paragraph 18 above). However, since all the doctors concerned refused, the matter had to be re- ferred to the City Court.
29. Despite his renewed objections, senior doctor X. was again heard as a prosecution witness at the City Court’s hearing of 3 March 1993. He once aga in disclosed information about the appli- cant.
Before giving evidence he read out a letter dated 23 February 1993 which the applicant had sent him. It stated: “... The case concerns criminal charges against my husband which are considered to outweigh a doctor’s obligation and right to respect secrecy. It seems to me that you have been called to appear as a witness because I myself have invoked my right ... to refuse to give evidence. In your capacity as a doctor you are therefore likely to be asked questions which I, as X’s spouse, have the right to refuse to reveal. The information which you have emanates from me and has been obtained by you because it has been my understanding that it would remain confidential ... [N]or could I have imagined that [such] information could be used for the purpose of criminal proceed- ings in which my husband is facing charges. As I see it, the hearing of you as a witness is merely aimed at circumventing my lawful right to refuse to give evidence against my husband ... I there- fore request you to refer to these points, when you are being asked to give evidence in matters which concern only me. It is my opinion that you should not be obliged to give evidence in those matters and that the charges should be dealt with in such a way that I am not in any way forced to take part in the establishment of the [facts]. [I] am under no obligation to do so ...”
30. In the course of three hearings on 17 March, 7 April and 5 May 1993, the City Court heard evidence from the applicant’s psychiatrist, Dr X.X., and a number of medical doctors who had treated her, namely Drs X., S.-H., S., K., T., R. and apparently also Dr X.X. It also heard Dr X.X., who had interviewed Z for research purposes. The prosecution had called them as witnesses and the court had ordered them to give evidence, although they had objected to doing so.
At the hearing on 00 Xxxxx, Xx D. confirmed that a blood test performed in August 1990 had shown that the applicant was HIV-positive.
At the hearing on 5 May 1993 the applicant agreed to give evidence since the matters which related to her had already been dealt with by the City Court in other ways. In her evidence she stated amongst other things that she had not been infected with HIV by X.
D. SEIZURE OF MEDICAL RECORDS AND THEIR INCLUSION IN THE INVESTIGATION FILE
31. On 8 and 9 March 1993 the police carried out a search at the hospital where the applicant and X had occasionally been treated. The police seized all the records concerning the applicant and appended copies of these to the record of the investigation concerning the charges against X of at- tempted manslaughter. These measures had been ordered by the prosecution. After photocopying the records the police returned them to the hospital.
The seized records comprised some thirty documents including the following statements:
“... 25 September 1990: [The applicant was] found to be HIV-positive at the beginning of the au- tumn of 1990. [She] guesses that she was contaminated at the end of 1989 ... [She] is married to a [foreign] citizen, whom she thinks is [HIV]-negative. ... 5 June 1991: ... [The applicant’s husband] completely denies that he might have an HIV infection ... 7 June 1991: ... According to [the appli- cant], [her] husband probably has an HIV infection too but [he] has not gone to be tested ... 23 December 1991: ... [The applicant’s husband] has not gone for HIV tests and is of the opinion that he is not a carrier of the virus ...”
32. The police also seized results from a large number of laboratory tests and examinations con- cerning matters other than the existence of HIV in the applicant’s blood, including information about her previous illnesses, her mental state and a survey into her quality of life based on a self- assessment.
On 10 March 1993 the City Court decided to include the copies of the seized records in its case file. On the same day it heard Dr X.X. as an expert called by the prosecution.
E. CONVICTION OF X BY THE CITY COURT AND APPEALS TO THE HELSINKI COURT OF APPEAL
33. On 19 May 1993 the City Court, amongst other things, convicted X on three counts of at- tempted manslaughter committed on 1 March, 31 August and 10 September 1992 but dismissed the charge of attempted manslaughter for the offence committed on 19 December 1991 and, as regards the latter, convicted him of rape instead. The City Court sentenced him to terms of imprisonment totalling seven years.
The City Court published the operative part of the judgment, an abridged version of its reasoning and an indication of the law which it had applied in the case. The City Court ordered that the full reasoning and the documents in the case be kept confidential for ten years. Both the complainants as well as X had requested a longer period of confidentiality.
34. The complainants, X and the prosecution all appealed against the City Court’s judgment to the Helsinki Court of Appeal (hovioikeus, hovUl tten).
35. At a hearing in camera before the Court of Appeal on 14 October 1993, all the appellants re- quested that the duration of the confidentiality order be extended; an extension to thirty years was discussed. X’x lawyer also informed the court about the applicant’s wish that the order be ex- tended.
36. In a judgment of 10 December 1993, a copy of which was made available to the press (see paragraph 43 below), the Court of Appeal, inter alia, upheld the conviction of X on three counts of attempted manslaughter and, in addition, convicted him on two further such counts related to of- fences committed on 19 December 1991 and 6 September 1992. It increased his total sentence to eleven years, six months and twenty days’ imprisonment. As regards the two additional counts of attempted manslaughter, the judgment stated:
“... According to [X - mentioned by his first names and family name] he found out that he was suf- fering from an HIV infection on 19 March 1992 ... He denied having undergone any HIV examina- tion since being tested in Kenya in January 1990.
According to [X], the result of the HIV test was negative ... [He] cannot therefore be considered to have known with certainty that he was infected with HIV prior to receiving the results of the test on 19 March 1992.
[X] and [the applicant - mentioned by her first names and family name] got married on 12 April 1990. On 31 August 1990 [the applicant] was found to be an HIV carrier. When she gave evi- dence before the City Court, [she] said that she had informed X of this finding at the end of 1990. In the Court of Appeal, X said that the applicant had already informed him about her disease before he came to Finland in January 1991. [He] also said that while they were both living in Africa [the applicant] had been suffering from some undefined disease. [She] had then also suspected that she might have become contaminated with HIV but her infection had only been discovered after [she] had returned to Finland.
On the basis of the above statements by the spouses ... it must be considered established that, given the status of [X’s] wife as an HIV carrier, [X] had particular reason to suspect that the infection had been transmitted through their sexual intercourse.
According to [Dr X.X.], a witness before the City Court, [X] must, on the basis of the symptoms of his disease, be considered to have been infected with HIV at least a year before the blood test per- formed in March 1992 ... According to [Dr S.V.], the disease with symptoms of fever which, ac- cording to [the applicant’s] medical records, she is reported to have suffered from in January 1990 and which was treated as malaria is quite likely to have been a primary HIV infection. Regard be- ing had to the fact that, when she contracted [her] disease with symptoms of fever at the end of 1989 or the beginning of 1990, [the applicant] was staying in Mombasa, where she had also met [X], the Court of Appeal finds Dr S.V.’s opinion concerning the primary HIV infection credible. Taking into account the moment when [the applicant] was found to be an HIV carrier, the Court of Appeal finds it likely that she contracted the [disease] from [X].
On these grounds the Court of Appeal considers that [X] must have been aware of his HIV infec- tion at the latest by December 1991. The fact that [he] nevertheless chose not to undergo any HIV examinations other than those referred to above shows that his attitude towards the possibility that others might be contaminated [with HIV] was at best indifferent. Such an attitude must, as regards the question of intent, be considered in the same way as if the perpetrator had known with certainty that he had the disease. When assessing [X’s] intent, his conduct must therefore be viewed in the same way on all the counts of attempted manslaughter with which he has been charged. ...
It has been shown in this case that, on the basis of current knowledge, an HIV infection is lethal.
[X] has admitted that, before arriving in Finland, he had already become familiar with the nature of [this] disease and the ways in which it could spread. Having regard also to [his] statement that he had [previously] stayed in Uganda, Kenya and Rwanda, Uganda being a country where the disease is particularly widespread, and the general knowledge that [the disease] is lethal, and [noting] that [X’s] wife has also fallen ill [with this disease], [the Court of Appeal] finds it likely that [X] was familiar with the significant risk of contamination and the lethal effects of [the disease].
According to [senior doctor X.] and [Dr X.X.], who were called as witnesses, the disease may spread through a single act of sexual intercourse X must thus have realised that his acts entailed,
as a probable consequence, subjecting [the complainants] to a risk that they would be contaminated
with HIV. Given that he has nevertheless acted in the manner established, his acts must be consid- ered intentional. In this respect the Court of Appeal has also taken into account that [X] did not in- form the complainants of the possible risk of contamination. ...
... [X] must therefore be considered to have committed attempted manslaughter on 19 December
1991 and 6 September 1992 also ”
The Court of Appeal in addition upheld the City Court’s decision that the case documents should remain confidential for a period of ten years.
37. On 26 September 1994 the Supreme Court (korkein oikeus, K| gsta domstolen) refused to grant X leave to appeal.
F. APPLICATION TO THE SUPREME COURT FOR AN ORDER QUASHING OR REVERSING THE
COURT OF APPEAL’S JUDGMENT
38. On 19 May 1995 the applicant applied to the Supreme Court for an order quashing (poistaa, XQGDQU| ja) the Court of Appeal’s judgment in so far as it permitted the information and material about her to become available to the public as from 2002. In her view, the Court of Appeal’s fail- ure to hear her submissions before deciding whether and for how long the relevant medical records should be kept confidential amounted to a procedural error. That part of its judgment had been prejudicial to her.
In the alternative, she applied for an order reversing (purkaa, nterbryta ) the Court of Appeal’s judgment, on the grounds that it had manifestly been based on an incorrect application of the law and was incompatible with Article 8 of the Convention in that it was neither “in accordance with the law” nor “necessary in a democratic society”.
In the event that the Court of Appeal’s judgment be quashed or reversed, the applicant requested that the matter be referred back to the Court of Appeal, so that she could make submissions.
39. On 22 May 1995 the applicant requested the Helsinki Police Department to make enquiries as to who had informed the police that she was HIV-positive (see paragraph 12 above). She with- drew her request the following month.
40. On 1 September 1995 the Supreme Court dismissed the applicant’s application for an order quashing or reversing the Court of Appeal’s judgment. The first application had been lodged out of time and she did not have locus standi to make the second.
G. PRESS COVERAGE OF THE CASE
41. On 15 June 1992 the large-circula tion evening newspaper Ilta-Sanomat reported X’s trial, stating that he was infected with HIV and that it was not yet certain whether the applicant was also
infected, as she had refused to give evidence.
42. On 9 April 1993 the leading daily Helsingin Sanomat reported the seizure of the applicant’s medical records under the headline “Prosecutor obtains medical records of wife of man accused of HIV rapes”. The article stated that the wife of X, whose first name and family name were men- tioned in full, was a patient in a hospital unit treating patients suffering from HIV infection.
43. The Court of Appeal’s judgment of 10 December 1993 was reported by various newspapers, including Helsingin Sanomat which, after receiving it by fax from the Court of Appeal, published an article on 16 December 1993. The article stated that the conviction had been based on the statement of “[X]’s Finnish wife”, while mentioning his name in full; in addition, it referred to the Court of Appeal’s finding that the applicant was HIV-positive.
II. Relevant domestic law
A. OBLIGATION TO REPORT CONTAGIOUS DISEASES AND CONFIDENTIALITY OF MEDICAL RE- CORDS
44. Under the Contagious Diseases Xxx 0000 and implementing decree (tartuntatautilaki 583/86 ja -asetus 786/86, lag 583/86 och I| rordning 786/86 om smittsamma sjukdomar), a person who is suffering from a disease such as infection with HIV or who it is found might have contracted such a disease must, on request, inform his or her doctor of the likely source of contamination (section 22
(2) of the Act and section 2 of the decree).
45. Under the Patients’ Status and Rights Xxx 0000 (laki potilaan asemasta ja oikeuksista, lag om patientens VWlllning och Ul ttigheter 785/92) which entered into force on 1 May 1993, medical records must be kept confidential. Information may only be disclosed to a third party with the pa- tient’s written consent. It may nevertheless be disclosed to, among others, a court of law, another authority or an association which has been granted access thereto by law (section 13).
B. A MEDICAL DOCTOR’S RIGHTS AND OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY WHEN GIVING EVIDENCE
46. Under chapter 17, Article 23 para. 1 (3), of the Code of Judicial Procedure, a doctor of medi- cine may not, without his or her patient’s consent, give information as a witness which he or she has obtained in his or her professional capacity and which, because of its nature, should be kept confidential.
However, paragraph 3 provides that a doctor may be ordered to give evidence as a witness in con- nection with a charge relating to an offence for which a sentence of at least six years’ imprisonment is prescribed (as is the case with regard to manslaughter and attempted manslaughter).
In such cases, section 27 (2) of the Pre-trial Xxxxxxxxxxxxx Xxx 0000 (esitutkintalaki, I| UXQGHUV| kningslag 449/87) entitles doctors to give evidence even during the pre-trial investiga- tion.
47. Section 28 (1) of that Act provides: “If a witness manifestly has knowledge about a matter of importance to the clarification of [a suspect’s] guilt and if he [or she] refuses to reveal this even though obliged to do so or, under section 27 (2), entitled to do so, the court may, at the request of the chief investigating officer, require [the witness] to disclose his knowledge about the matter. In such cases all or part of the questioning of the witness may take place in court.”
A party to the pre-trial investigation and his counsel may attend the proceedings in which such a request by the chief investigating officer is considered and the actual hearing where the witness gives evidence (section 28 (2)).
C. SEIZURE OF CONFIDENTIAL DOCUMENTS
48. Chapter 4, section 2 (2), of the Coercive Means of Criminal Xxxxxxxxxxxxx Xxx 0000 (pak- kokinolaki, WYnngsmedelslagen 450/87) provides: “A document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in
chapter 17, Article 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial
..., and [provided that] the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, un- der section 27 (2) of the Pre-trial Investigation Act, a person [referred to in chapter 17, Article 23, of the Code of Judicial Procedure] would have been entitled or obliged to give evidence in the pre- trial investigation about the matter contained in the document.”
49. Chapter 4, section 13, of the Act reads: “At the request of a person whom the case con- cerned, the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The examination of such a request is, in as far as appropriate, governed by the provisions in chapter 1, sections 9 and 12, on the examination of requests for detention on remand. The court shall reserve those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue.”
D. ACCESS BY THE PUBLIC TO OFFICIAL DOCUMENTS
50. Under the Publicity of Official Documents Xxx 0000 (laki yleisten asiakirjain julkisuudesta, lag om DOOPl nna handlingars offentlighet 83/51), official documents are in principle public (sec- tion 1). They include not only documents drawn up and issued by an authority but also documents submitted to an authority and which are in its possession (section 2 (1)). A pre-trial investigation record, however, shall not be public until the matter has been brought before a court or the police investigation has been closed without charges being brought (section 4).
Everyone has access to official public documents (section 6, as amended by Act no. 739/88). How- ever, medical reports are accessible to the public only with the consent of the person to whom they relate (section 17). In the absence of such consent, a party to criminal proceedings shall neverthe- less have access to such documents if they are capable of affecting the outcome of the case (section 19 (1), as amended by Act no. 601/82).
51. Documentary evidence obtained during a pre-trial investigation shall be kept in a record of investigation, if this is considered necessary for the further consideration of the case. The record shall include all documents assumed to be of importance and indicate, inter alia, whether other documentary evidence has been obtained but omitted from the record (section 40 of the Pre-trial Investigation Act).
52. If all or part of an oral hearing has been held in camera or if, during such a hearing, any con- fidential document or information has been submitted, the court may decide that all or part of the case material be kept confidential for up to forty years. The operative part of the judgment and the legal provisions relied on shall always be made public (section 9 of the Publicity of Court Proceed- ings Act 1984 (laki RLNHXGHQNl ynnin julkisuudesta, lag om offentlighet vid Ul WWHJnng 945/84)).
No separate appeal against a decision concerning the publicity of proceedings is allowed (section 11). The decision must thus be challenged in an ordinary appeal lodged by a party to the proceed- ings.
E. DISCLOSURE OF CONFIDENTIAL INFORMATION
53. Under the 1889 Penal Code (rikoslaki, strafflag 39/1889), the disclosure of confidential in- formation by a civil servant or a public employee is a criminal offence (chapter 40, which has been amended subsequently).
54. Under the Constitution (Suomen hallitusmuoto, Regeringsform I| r Finland 94/19), anyone whose rights have been infringed and who has suffered damage as a result of an illegal act, or by the negligence, of a civil servant, is entitled to prosecute the civil servant, or to demand that he or she be prosecuted, and to claim damages (Article 93 para. 2). Under the Damage Compensation Act 1974 (vahingonkorvauslaki, VNDGHVWnndslag 412/74) proceedings may also be brought against the State for actions taken by civil servants (chapters 3 and 4).
55. A person involved in a pre-trial investigation may be prohibited, on pain of a fine or a maximum of six months’ imprisonment, from revealing information concerning third parties which was not previously known to him or her and which relates to the investigation.
Such a prohibition may be imposed if the disclosure of such information in the course of the inves- tigation is liable to jeopardise the investigation or to cause harm or be prejudicial to a party to the investigation or to any third party. Heavier sentences may be imposed if the disclosure constitutes a separate offence (section 48 of the Pre-trial Investigation Act).
56. Under the Publicity of Official Documents Xxx 0000, neither parties nor their representatives are allowed to disclose confidential material which has been made available to them in their capac- ity as parties to persons not involved in the proceedings (section 19a). Disclosure in breach of this rule is punishable by a fine (section 27).
PROCEEDINGS BEFORE THE COMMISSION
57. In her application to the Commission of 21 May 1993 (no. 22009/93), Mrs Z complained that there had been violations of her right to respect for private and family life as guaranteed by Article 8 of the Convention on account, in particular, of (1) the orders imposed on her doctors and psychia- trist to give evidence and disclose information about her in the criminal proceedings against her husband; (2) the seizure of her medical records at the hospital where she had been treated and their inclusion in their entirety in the investigation file; (3) the decisions of the competent courts to limit the confidentiality of the trial record to a period of ten years; and (4) the disclosure of her identity and medical data in the Court of Appeal’s judgment. She also alleged that, contrary to Article 13 of the Convention, she had not been afforded an effective remedy with respect to her complaints under Article 8.
On 28 February 1995 the Commission declared the application admissible. In its report of 2 De- cember 1995 (Article 31), it expressed the unanimous opinion that there had been a violation of Ar- ticle 8 and that it was not necessary to examine whether there had also been a violation of Article
13. The full text of the Commission’s opinion is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT
58. At the hearing on 29 August 1996 the Government, as they had done in their memorial, in- vited the Court to hold that there had been no violation of the Convention.
59. On the same occasion the applicant reiterated her request to the Court, stated in her memo- rial, to find that there had been violations of both Article 8 and Article 13 and to award her just sat- isfaction under Article 50 of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
60. The applicant alleged that she had been a victim of violations of Article 8 of the Convention, which provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
61. The Government contested this allegation, whereas the Commission concluded that there had been a violation of this provision.
A. SCOPE OF THE ISSUES BEFORE THE COURT
1. Allegation of leak of medical data
62. In her application to the Commission the applicant complained, amongst other things, about the failure of the Finnish authorities to prevent the disclosure by the press of her identity and her medical condition as an HIV carrier and the termination of her employment contract. After the Commissions’s decision declaring the application admissible and in the light of new information obtained in the course of the proceedings before it, she elaborated on those allegations, maintaining that the information in question had been leaked by the police or other public authority.
In her memorial to the Court, the applicant sought to clarify these allegations. She had not in- tended to compla in about the newspaper coverage or her dismissal, but only about the alleged leak, for which the respondent State was responsible. This fact on its own gave rise, in her view, to a violation of Article 8.
63. The Government, referring to the above clarification, considered the claim to be devoid of any real content.
64. The Commission did not find it necessary to examine the matter on the merits and the Dele- gate added at the Court’s hearing that the evidence adduced was incomplete on this point.
65. Nor does the Court find it established that there had been a leak of confidential medical data concerning the applicant for which the respondent State could be held responsible under Article 8.
2. Allegation of discrimination
66. The applicant also complained before the Court that the reasoning in the Court of Appeal’s judgment was biased, not only against her former husband on the grounds of race, but also against her on the grounds of sex. The interference with her right to respect for her private and family life had been motivated by the fact that she had been a woman married to a black person from Africa.
67. The Government disputed the above contentions. The applicant had not referred to Article 14 of the Convention in the proceedings before the Commission, which had not examined any such allegations. She should be considered barred from pursuing any such claim before the Court.
68. The Delegate of the Commission did not express any views on the matter.
69. In the Court’s view, the applic ant’s allegation that she was subjected to discriminatory treatment does not appear to be an elaboration of her complaints declared admissible by the Com- mission; it seems rather to be a separate and new complaint which is not covered by the Commis- sion’s decision on admissibility. The Court has therefore no jurisdiction to entertain it (see, for in- stance, the Xxxxxx v. Sweden (no. 2) judgment of 27 November 1992, Series A no. 250, pp. 30-31, para. 75; and the Xxxxxxx-Xxxxxxxx v. Switzerland judgment of 24 June 1993, Series A no. 263, p. 20, para. 60).
3. Conclusion
70. The Court will therefore confine its examination to the other matters complained of by the applicant, namely (1) the orders requiring her doctors to give evidence in the criminal proceedings against her husband, (2) the seizure of her medical records and their inclusion in the investigation file, (3) the decision to make the material in question accessible to the public as from the year 2002 and (4) the disclosure of her identity and medical condition in the Court of Appeal’s judgment.
B. WHETHER THERE WAS AN INTERFERENCE WITH THE APPLICANT’S RIGHT TO RESPECT FOR HER PRIVATE AND FAMILY LIFE
71. It was undisputed that the various measures complained of constituted interferences with the applicant’s right to respect for her private and family life as guaranteed by paragraph 1 of Article 8 of the Convention. The Court sees no reason to hold otherwise. It must therefore examine whether they fulfilled the conditions in paragraph 2 of that Article.
C. WHETHER THE INTERFERENCES WERE JUSTIFIED
1. “In accordance with the law”
72. The applicant complained that the four contested measures all stemmed from the fact that her medical data had been communicated in the proceedings against X in application of chapter 17, Ar- ticle 23 para. 3, of the Code of Judicial Procedure (see paragraph 46 above), which provision was in her view couched in “dangerously” broad terms. She submitted that that provision failed to spec- ify the group of persons whose medical information could be used in criminal proceedings. Nor did the relevant law afford a right for the persons concerned to be heard prior to the taking of such measures or a remedy to challenge these. The seizure of medical records and their inclusion in an investigation file did not even require a court order. Thus the legislation could not be said to fulfil the requirements of precision and foreseeability flowing from the expression “in accordance
with the law”.
73. The Court, however, sharing the views of the Commission and the Government, finds xxxx- ing to suggest that the measures did not comply with domestic law or that the effects of the relevant law were not sufficiently foreseeable for the purposes of the quality requirement which is implied by the expression “in accordance with the law” in paragraph 2 of Article 8.
2. Legitimate aim
74. The applicant maintained that the medical data in question had not been of such importance in the trial against X as to suggest that the impugned measures had pursued a legitimate aim for the purposes of paragraph 2 of Article 8.
75. However, the Court is not persuaded by this argument which is essentially based on an ex post facto assessment by the applicant of the importance of the evidence concerned for the outcome of the proceedings against X. What matters is whether, at the time when the contested measures were taken, the relevant authorities sought to achieve a legitimate aim.
76. In this respect the Court agrees with the Government and the Commission that, at the mate- rial time, the investigative measures in issue (see paragraphs 23, 26 and 29-32 above) were aimed at the “prevention of ... crime” and the “protection of the rights and freedoms of others”.
77. As regards the ten-year limitation on the confidentiality order, the Court recognises that there is a public interest in ensuring the transparence of court proceedings and thereby the maintenance of the public ’s confidence in the courts (see paragraphs 33, 35 and 36 above). The limitation in question would, under Finnish law, enable any member of the public to exercise his or her right to have access to the case material after the expiry of the confidentiality order.
It could therefore, as suggested by the Government and the Commission, be said to have been aimed at protecting the “rights and freedoms of others”.
On the other hand, unlike the Government and the Commission, the Court does not consider that it could be regarded as being aimed at the prevention of crime.
78. As to the publication of the applicant’s full name as well as her medical condition following their disclosure in the Court of Appeal’s judgment (see paragraph 36 above), the Court, unlike the Government and the Commission, has doubts as to whether this could be said to have pursued any of the legitimate aims enumerated in paragraph 2 of Article 8. However, in view of its findings in paragraph 113 below, the Court does not deem it necessary to decide this issue.
3. “Necessary in a democratic society”
(a) Arguments of those appearing before the Court
(i) The applicant and the Commission
79. The applicant and the Commission were of the view that her right to respect for her private and family life under Article 8 had been interfered with in a manner which could not be said to have been “necessary in a democratic society”.
However, their conclusions on this point differed. Whereas the applicant alleged that each measure on its own constituted a violation of Article 8, the Commission found a violation by considering them globally. The Delegate explained that, because of the strong links between the various meas- ures and their consequences for the applicant, an overall assessment provided a better basis for the balancing of interests to be exercised under the necessity test.
There were also certain differences between their respective arguments. They could be summa- rised in the following way.
80. In the applicant’s submission, there was no reasonable relationship of proportionality be- tween any legitimate aim pursued by the measures in question and her interest in maintaining the confidentiality of her identity and her medical condition.
As regards the orders requiring her doctors and psychiatrist to give evidence, she observed that the conviction of X on five, as opposed to three, counts of attempted manslaughter had hardly affected the severity of the sentence and the possibility for the victims of obtaining damages from him. He would in any event have been sentenced for sexual offences in relation to the two remaining counts. In view of the obligation of an HIV carrier under Finnish law to inform his or her doctor of the likely source of the disease (see paragraph 44 above), the contested orders were likely to have deterred potential and actual HIV carriers in Finland from undergoing blood tests and fromseeking medical assistance.
As to the seizure of the medical records and their inclusion in the investigation file (see paragraphs 31-32 above), a substantial part of this material had clearly been irrelevant to the case against X and none of it had contained any information which could have been decisive for determining when X had become aware of his HIV infection. There were certain isolated annotations in the records of statements by Z concerning X, but their importance was only theoretical. The City Court was un- der no obligation to admit the filing of all of the evidence derived from the seizure.
Against this background, there could be no justification for the decision to make the trial record ac- cessible to the public as early as ten years later, in the year 2002.
Nor had it been “necessary” for the Court of Appeal to disclose her identity and details of her medical condition in its judgment and to fax this to Finland’s largest newspaper (see paragraph 43 above), which measure had been particularly damaging to her private and professional life. At the Court of Appeal’s hearing, X’s lawyer had made it entirely clear that Z did not wish any informa- tion about her to be published.
81. Unlike the applicant, the Commission was satisfied that the measures in issue were justified on their merits in so far as the competent national authorities had merely sought to obtain evidence on when X had become aware of his HIV infection. It had regard to the weighty public and private interests in pursuing the investigation of the offences of attempted manslaughter.
On the other hand, the Commission, like the applicant, was of the opinion that the measures in question had not been accompanied by sufficient safeguards for the purposes of paragraph 2 of Ar- ticle 8.
82. In the first place, the Commission observed that the applicant had been given no prior warn- ing of the first order to senior doctor X. to give evidence (see paragraph 23 above), nor of the fact that her medical records were to be seized and that copies thereof were to be included in the inves- tigation file (see paragraphs 31-32 above). As she had not been properly informed of the various investigatory measures in advance, she had not been able to object to them effectively. Also, in
this connection, the applicant pointed out that, not being a party to the proceedings and the court hearings being held in camera (see paragraph 23 above), she had had no means of appearing before the court to state her views.
It was not clear why it had been necessary to hear all the doctors (see paragraphs 23, 26, 29 and 30 above) and what, if any, efforts had been made to limit the questioning in such a way as to min i- mise the interference complained of.
83. Moreover, there was no indication that the police had exercised their discretion to protect at least some of the information emanating from the applicant’s medical records, notably by exclud- ing certain material from the investigation file.
On this point, the applicant also contended that she had not been afforded a remedy to challenge the seizure of the records or their inclusion in the file.
84. Furthermore, whilst it was possible under Finnish law to keep court records confidential for up to forty years (see paragraph 52 above) and all the parties to the proceedings had requested thirty years, the City Court had decided to limit the order to ten years (see paragraph 33 above), which decision had been upheld by the Court of Appeal (see paragraph 36 above).
Any possibility which the applic ant might have had to ask the Supreme Court to quash the confi- dentiality order would not have provided her with an adequate safeguard. There was no provision entitling her to be heard by the Court of Appeal and all the parties who had been heard on the mat- ter had unsuccessfully asked for an extension of the order (see paragraph 35 above).
85. In addition, the Court of Appeal, by having the reasoning of its judgment published in full, had disclosed the applicant’s identity and her HIV infection (see paragraph 36 above). She had had no effective means of opposing or challenging this measure.
(ii) The Government
86. The Government contested the conclusions reached by the applicant and the Commission. In the Government’s opinion, the various measures complained of were all supported by relevant and sufficient reasons and, having regard to the safeguards which existed, were proportionate to the le- gitimate aims pursued. They invited the Court to examine each of the measures separately.
87. In the Government’s submission, both the taking of evidence from the applicant’s doctors and psychiatrist and the production of her medical records at the trial had been vital in securing X’s conviction and sentence on two of the five counts of attempted manslaughter (see paragraphs 33 and 36 above). The purpose of these measures had been confined to seeking information on when X had become aware of his HIV infection or had reason to suspect that he was carrying the disease.
88. They further maintained that it had been necessary to hear all the doctors because of the na- ture of the information sought, the seriousness of the offences in question and what was at stake for the accused.
The orders requiring the doctors and the psychiatrist to give evidence had been taken by the City Court and the applicant’s objections thereto had been drawn to its attention on 3 March 1993, when senior doctor X. had read out her letter to the court (see paragraph 29 above).
89. Moreover, the Government argued that, since all the records had had a potential relevance to the question as to when X had become aware of or had reason to suspect his HIV infection, it had been reasonable that the material in its entirety be seized and included in the investigation file. Having regard to the variety of symptoms of an HIV infection and the difficulty of judging whether an illness had been HIV-related, it had been essential that the competent courts be able to examine all the material. To exclude any of it would have given rise to doubts as to its reliability.
In addition, the Government pointed out that the applicant could have challenged the seizure under section 13 of chapter 4 of the Coercive Means of Criminal Xxxxxxxxxxxxx Xxx 0000 (see paragraph 49 above).
90. Bearing in mind the public interest in publicity of court proceedings, the Government con- sidered it reasonable in the circumstances of the case to limit the confidentiality order to ten years.
When heard as a witness, Mrs Z had not expressly requested that her medical data remain confiden- tial and that she should not be identified in the Court of Appeal’s judgment.
91. The reference to the applicant as X’s wife in the Court of Appeal’s judgment had been an in- dispensable element of its reasoning and conclusion (see paragraph 36 above). The fact that the judgment had disclosed her name had been of no significance to her interests. As with the victims of the offences committed by X, it would have been possible to omit mentioning her name, had she expressed any wish to this effect.
92. Finally, in addition to the above safeguards, the Government pointed to the civil and criminal remedies for breach of confidentiality by civil servants which had been available to the applicant under Finnish law and to the possibility of lodging a petition with the parliamentary ombudsman or with the Xxxxxxxxxx of Justice (see paragraphs 53-56 above).
93. In the light of the foregoing, the Government were of the view that the Finnish authorities had acted within the margin of appreciation left to them in the matters in issue and that, accord- ingly, none of the contested measures had given rise to a violation of Article 8 of the Convention.
(b) The Court’s assessment
94. In determining whether the impugned measures were “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify them were relevant and sufficient and whether the measures were proportionate to the legitimate aims pursued.
95. In this connection, the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her right to re- spect for private and family life as guaranteed by Article 8 of the Convention. Respecting the con- fidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.
Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community (see Recommendation no. R (89) 14 on “The ethical issues of HIV infection in the health care and social settings”, adopted by the Committee of Ministers of the Council of Europe on 24 October 1989, in particular the general observations on confidentiality of medical data in paragraph 165 of the explanatory memorandum).
The domestic law must therefore afford appropria te safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in Article 8 of the Convention (see, mutatis mutandis, Articles 3 para. 2 (c), 5, 6 and 9 of the Convention for the Pro- tection of Individuals with Regard to Automatic Processing of Personal Data, European Treaty Se- ries no. 108, Strasbourg, 1981).
96. The above considerations are especially valid as regards protection of the confidentiality of information about a person’s HIV infection. The disclosure of such data may dramatically affect his or her private and family life, as well as social and employment situation, by exposing him or her to opprobrium and the risk of ostracism. For this reason it may also discourage persons from seeking diagnosis or treatment and thus undermine any preventive efforts by the community to con- tain the pandemic (see the above-mentioned explanatory memorandum to Recommendation no. R
(89) 14, paragraphs 166-68). The interests in protecting the confidentiality of such information will therefore weigh heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference cannot be compatible with Article 8 of the Conven- tion unless it is justified by an overriding requirement in the public interest.
In view of the highly intimate and sensitive nature of information concerning a person’s HIV status, any State measures compelling communication or disclosure of such information without the consent of the patient call for the most careful scrutiny on the part of the Court, as do the safe- guards designed to secure an effective protection (see, mutatis mutandis, the Xxxxxxx v. the United
Kingdom judgment of 22 October 1981, Series A no. 45, p. 21, para. 52; and the Xxxxxxxx v. Nor- way judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III, pp. 1003-04, para. 64).
97. At the same time, the Court accepts that the interests of a patient and the community as a whole in protecting the confidentiality of medical data may be outweighed by the interest in inves- tigation and prosecution of crime and in the publicity of court proceedings (see, mutatis mutandis, Article 9 of the above-mentioned 1981 Data Protection Convention), where such interests are shown to be of even greater importance.
98. It must be borne in mind in the context of the investigative measures in issue that it is not for the Court to substitute its views for those of the national authorities as to the relevance of evidence used in the judicial proceedings (see, for instance, the above-mentioned Xxxxxxxx judgment, pp. 1006-07, para. 73).
99. As to the issues regarding access by the public to personal data, the Court recognises that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the interest of publicity of court proceedings, on the one hand, and the interests of a party or a third person in maintaining the confidentiality of such data, on the other hand. The scope of this margin will depend on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see, for instance, the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 25, para. 58; and, mutatis mutandis, the Xxxxxxxxxxx and Others v. Greece judgment of 26 September 1996, Reports 1996-IV, p. 1364, para. 44).
100. It is in the light of the above considerations that the Court will examine the contested inter- ferences with the applicant’s right to respect for her private and family life.
Since the various measures were different in character, pursued distinct aims and infringed upon her private and family life to a different extent, the Court will examine the necessity of each meas- ure in turn.
101. Before broaching these issues, the Court observes at the outset that, although the applicant may not have had an opportunity to be heard directly by the competent authorities before they took the measures, they had been made aware of her views and interests in these matters.
All her medical advisers had objected to the various orders to testify and had thus actively sought to protect her interests in maintaining the confidentiality of her medical data. At an early stage, her letter to senior doctor X., urging him not to testify and stating her reasons, had been read out to the City Court (see paragraphs 23, 26, 29 and 30 above).
In the above-mentioned letter, it was implicit, to say the least, that she would for the same reasons object also to the communication of her medical data by means of seizure of her medical records and their inclusion in the investigation file, which occurred a few days later (see paragraphs 31 and 32 above). According to the applicant, her lawyer had done all he could to draw the public prose- cutor’s attention to her objections to her medical data being used in the proceedings.
Moreover, before upholding the ten-year limitation on the confidentiality order, the Court of Ap- peal had been informed by X’s lawyer of the applicant’s wish that the period of confidentiality be extended (see paragraph 35 above).
In these circumstances, the Court is satisfied that the decision-making process leading to the meas- ures in question was such as to take her views sufficiently into account for the purposes of Article 8 of the Convention (see, mutatis mutandis, the W. v. the United Kingdom judgment of 8 July 1987, Series A no. 121, pp. 28-29, paras. 62-64; and the above-mentioned Xxxxxxxx judgment, pp. 1004- 05, para. 66). Thus, the procedure followed did not as such give rise to any breach of that Article.
In this connection, the Court takes note of the fact that, according to the Government’s submissions to the Court, it would have been possible for the applicant to challenge the seizure before the City Court (see paragraph 49 above). Also, as is apparent from the Supreme Court’s decision of 1 Sep- tember 1995, she was able under Finnish law to apply - by way of an extraordinary procedure - for an order quashing the Court of Appeal’s judgment in so far as it permitted the information and ma- terial about her to be made accessible to the public as from 2002 (see paragraph 40 above).
(i) The orders requiring the applicant’s doctors and psychiatrist to give evidence
102. As regards the orders requiring the applicant’s doctors and psychiatrist to give evidence, the Court notes that the measures were taken in the context of Z availing herself of her right under Fin- nish law not to give evidence against her husband (see paragraphs 14, 17 and 21 above). The ob- ject was exclusively to ascertain from her medical advisers when X had become aware of or had reason to suspect his HIV infection. Their evidence had the possibility of being at the material time decisive for the question whether X was guilty of sexual offences only or in addition of the more serious offence of attempted manslaughter in relation to two offences committed prior to 19 March 1992, when the positive results of the HIV test had become available. There can be no doubt that the competent national authorities were entitled to think that very weighty public interests militated in favour of the investigation and prosecution of X for attempted manslaughter in respect of all of the five offences concerned and not just three of them.
103. The Court further notes that, under the relevant Finnish law, the applicant’s medical advisers could be ordered to give evidence concerning her without her informed consent only in very lim- ited circumstances, namely in connection with the investigation and the bringing of charges for se- rious criminal offences for which a sentence of at least six years’ imprisonment was prescribed (see paragraph 46 above). Since they had refused to give evidence to the police, the latter had to obtain authorisation from a judicial body – the City Court - to hear them as witnesses (see paragraph 28 above). The questioning took place in camera before the City Court, which had ordered in advance that its file, including transcripts of witness statements, be kept confidential (see paragraphs 19 and 23 above). All those involved in the proceedings were under a duty to treat the information as con- fidential. Breach of their duty in this respect could lead to civil and/or criminal liability under Fin- nish law (see paragraphs 53-56 above).
The interference with the applicant’s private and family life which the contested orders entailed was thus subjected to important limitations and was accompanied by effective and adequate safe- guards against abuse (see, for instance, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, pp. 23-24, paras. 49-50; and the Leander judgment cited above, p. 25, para. 60).
In this connection, the Court sees no reason to question the extent to which the applicant’s doctors were ordered to give evidence (see paragraphs 23, 26 and 30 above). As indicated above, the as- sessment of the expediency of obtaining evidence is primarily a matter for the national authorities and it is not for the Court to substitute its views for theirs in this regard (see paragraph 98 above).
104. In view of the above factors, in particular the confidential nature of the proceedings against X, as well as their highly exceptional character, the Court is not persuaded by the applicant’s argu- ment that the various orders to give evidence were likely to have deterred potential and actual HIV carriers in Finland from undergoing blood tests and from seeking medical treatment.
105. In the light of the foregoing, the Court finds that the various orders requiring the applicant’s medical advisers to give evidence were supported by relevant and sufficient reasons which corre- sponded to an overriding requirement in the interest of the legitimate aims pursued. It is also satis- fied that there was a reasonable relationship of proportionality between those measures and aims. Accordingly, there has been no violation of Article 8 on this point.
(ii) Seizure of the applicant’s medical records and their inclusion in the investigation file
106. The seizure of the applicant’s medical records and their inclusion in the investigation file were complementary to the orders compelling the medical advisers to give evidence. Like the la t- ter measures, the former were taken in the context of the applicant refusing to give evidence against her husband and their object was to ascertain when X had become aware of his HIV infection or had reason to suspect that he was carrying the disease. They were based on the same weighty pub- lic interests (see paragraph 102 above).
107. Furthermore, they were subject to similar limitations and safeguards against abuse (see para- graph 103 above). The substantive conditions on which the material in question could be seized were equally restrictive (see paragraphs 46 and 48 above). More importantly, the material had
been submitted in the context of proceedings held in camera, and the City Court had decided that the case documents should be treated as confidential, which measure was protected largely by the same rules and remedies as the witness statements (see paragraphs 23 and 53-56 above).
108. It is true, however, that the seizure, unlike the taking of evidence from the doctors and psy- chiatrist, had not been authorised by a court but had been ordered by the prosecution (see paragraph 31 above).
Nevertheless, under the terms of the relevant provision in chapter 4, section 2 (2), of the Coercive Means of Criminal Investigation Act, a condition for the seizure of the medical records concerned was that the applicant’s doctors would be “entitled or obliged to give evidence in the pre-trial in- vestigation about the matter contained in the document[s]” (see paragraph 48 above). The legal conditions for the seizure were thus essentially the same as those for the orders on the doctors to give evidence.
Furthermore, prior to the seizure of the documents, the City Court had already decided that at least two of the doctors should be heard, whilst it required all the other doctors to give evidence shortly afterwards (see paragraphs 23, 26 and 30 above). The day following the seizure, the City Court, which had power to exclude evidence, decided to include all the material in question in its case file (see paragraph 32 above). In addition, as already noted, the applicant had the possibility of chal- lenging the seizure before the City Court (see paragraphs 49 and 101 above).
Therefore, the Court considers that the fact that the seizure was ordered by the prosecution and not by a court cannot of itself give rise to any misgivings under Article 8.
109. As to the applicant’s submission that parts of the material had been irrelevant and that none of it had been decisive in the trial against X, the Court reiterates that the expediency of the adduc- ing and admission of evidence by national authorities in domestic proceedings is primarily a matter to be assessed by them and that it is normally not within its province to substitute its views for theirs in this respect (see paragraph 98 above). Bearing in mind the arguments advanced by the Government as to the variety of data which could have been relevant for the determination of when X was first aware of or had reason to suspect his HIV infection (see paragraph 89 above), the Court sees no reason to doubt the assessment by the national authorities on this point.
110. Therefore, the Court considers that the seizure of the applicant’s medical records and their inclusion in the investigation file were supported by relevant and sufficient reasons, the weight of which was such as to override the applicant’s interest in the information in question not being communicated. It is satisfied that the measures were proportionate to the legitimate aims pursued and, accordingly, finds no violation of Article 8 on this point either.
(iii) Duration of the order to maintain the medical data confidential
111. As regards the complaint that the medical data in issue would become accessible to the pub- lic as from 2002, the Court notes that the ten-year limitation on the confidentiality order did not correspond to the wishes or interests of the litigants in the proceedings, all of whom had requested a longer period of confidentiality (see paragraph 35 above).
112. The Court is not persuaded that, by prescribing a period of ten years, the domestic courts at- tached sufficient weight to the applicant’s interests. It must be remembered that, as a result of the information in issue having been produced in the proceedings without her consent, she had already been subjected to a serious interference with her right to respect for her private and family life. The further interference which she would suffer if the medical information were to be made acces- sible to the public after ten years is not supported by reasons which could be considered sufficient to override her interest in the data remaining confidential for a longer period. The order to make the material so accessible as early as 2002 would, if implemented, amount to a disproportionate in- terference with her right to respect for her private and family life, in violation of Article 8.
However, the Court will confine itself to the above conclusion, as it is for the State to choose the means to be used in its domestic legal system for discharging its obligations under Article 53 of the Convention (see the Xxxxxx v. Belgium judgment of 13 June 1979, Series A no. 31, pp. 25-26, para. 58).
(iv) Publication of the applicant’s identity and health condition in the Court of Appeal’s judg- ment
113. Finally, the Court must examine whether there were sufficient reasons to justify the disclo- sure of the applicant’s identity and HIV infection in the text of the Court of Appeal’s judgment made available to the press (see paragraphs 36 and 43 above).
Under the relevant Finnish law, the Court of Appeal had the discretion, firstly, to omit mentioning any names in the judgment permitting the identification of the applicant and, secondly, to keep the full reasoning confidential for a certain period and instead publish an abridged version of the rea- soning, the operative part and an indication of the law which it had applied (see paragraph 52 above). In fact, it was along these lines that the City Court had published its judgment, without it giving rise to any adverse comment (see paragraph 33 above).
Irrespective of whether the applicant had expressly requested the Court of Appeal to omit disclos- ing her identity and medical condition, that court was informed by X’s lawyer about her wishes that the confidentiality order be extended beyond ten years (see paragraph 35 above). It evidently fol- lowed from this that she would be opposed to the disclos ure of the information in question to the public.
In these circumstances, and having regard to the considerations mentioned in paragraph 112 above, the Court does not find that the impugned publication was supported by any cogent reasons. Ac- xxxxxxxxx, the publication of the information concerned gave rise to a violation of the applicant’s right to respect for her private and family life as guaranteed by Article 8.
(v) Recapitulation
114. The Court thus reaches the conclusions that there has been no violation of Article 8 of the Convention (1) with respect to the orders requiring the applicant’s medical advisers to give evi- dence or (2) with regard to the seizure of her medical records and their inclusion in the investiga- tion file. On the other hand, it finds (3) that making the medical data concerned accessible to the public as early as 2002 would, if implemented, give rise to a violation of that Article and (4) that there has been a violation thereof with regard to the publication of the applicant’s identity and medical condition in the Court of Appeal’s judgment.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
115. The applicant also alleged that the lack of remedies to challenge each of the measures com- plained of under Article 8 gave rise to violations of Article 13 of the Convention, which reads: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an ef- fective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
116. The Government contested this view, whereas the Commission, having regard to its finding with regard to the complaints under Article 8, did not consider it necessary to examine whether there had also been a violation of Article 13.
117. The Court, having taken these matters into account in relation to Article 8 (see paragraphs 101, 103, 107 and 109 above), does not find it necessary to examine them under Article 13.
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION
118. The applicant sought just satisfaction under Article 50 of the Convention, which reads: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, af- ford just satisfaction to the injured party.”
A. NON-PECUNIARY DAMAGE
119. The applicant did not make any claim for pecuniary damage but requested the Court to award her 2 million Finnish marks (FIM) in compensation for non-pecuniary damage sustained as a result of the disclosure of her medical data, which had been widely disseminated by the press.
120. In the view of the Government the finding of a violation would in itself constitute adequate just satisfaction. In any event, an award to the applic ant should not reach the level of the awards made in respect of the four victims of the offences committed by X, the highest of which had been FIM 70,000.
121. The Delegate of the Commission did not offer any comments on the matter.
122. The Court finds it established that the applicant must have suffered non-pecuniary damage as a result of the disclosure of her identity and medical condition in the Court of Appeal’s judgment. It considers that sufficient just satisfaction would not be provided solely by the finding of a viola- tion and that compensation has thus to be awarded. In assessing the amount, the Court does not consider itself bound by domestic practices, although it may derive some assistance from them. Deciding on an equitable basis, it awards the applicant FIM 100,000 under this head.
B. COSTS AND EXPENSES
123. The applicant further requested the reimbursement of costs and expenses, totalling FIM 239,838, in respect of the following items: (a) FIM 4,800 in fees for work by Mr Xxxxxxx in the domestic proceedings; (b) by way of legal fees incurred before the Commission, FIM 126,000 for Mr Xxxxxxx and FIM 24,000 for Mr Xxxxxxxx; (c) for legal fees incurred before the Court up to and including the memorial, FIM 16,800 for Mr Xxxxxxx and FIM 9,600 for Mr Xxxxxxxx; (d) FIM 49,800 for her lawyers’ appearance before the Court; (e) FIM 8,838 in translation expenses.
The above legal fees, which concerned 385 hours work at FIM 600 per hour, should be increased by the relevant value-added tax (VAT), whereas the amounts received in legal aid from the Council of Europe should be deducted.
124. Whilst accepting item (a) and expressing no objection to item (e), the Government regarded the number of hours in connection with items (b) to (d) as excessive.
125. The Delegate of the Commission did not state any views on the matter.
126. The Court will consider the above claims in the light of the criteria laid down in its case-law, namely whether the costs and expenses were actually and necessarily incurred in order to prevent or obtain redress for the matter found to constitute a violation of the Convention and were reason- able as to quantum (see, for instance, the Xxxxxxx Xxxxxxxxxxx v. the United Kingdom judgment of 13 July 1995, Series A no. 316-B, p. 83, para. 77).
Applying these criteria, the Court considers that items (a) and (e) should be reimbursed in their en- tirety.
As to items (b) to (d), the Court is not satisfied that all the costs were necessarily incurred.
Deciding on an equitable basis, it awards the total sum of FIM 160,000, to be increased by any ap- plicable VAT, less the 10,835 French francs which the applicant has received in respect of legal fees by way of legal aid from the Council of Europe.
C. DEFAULT INTEREST
127. According to the information available to the Court, the statutory rate of interest applicable in Finland at the date of the adoption of the present judgment is 11% per annum.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that the orders requiring the applicant’s medical advisers to give evidence did not constitute a violation of Article 8 of the Convention;
2. Holds by eight votes to one that the seizure of the applicant’s medical records and their in- clusion in the investigation file did not give rise to a violation of Article 8;
3. Holds unanimously that the order to make the transcripts of the evidence given by her medi- cal advisers and her medical records accessible to the public in 2002 would, if implemented, constitute a violation of Article 8;
4. Holds unanimously that the disclosure of the applicant’s identity and medical condition by the Helsinki Court of Appeal constituted a breach of Article;
5. Holds unanimously that it is not necessary to examine the applicant’s complaints under Arti- cle 13 of the Convention;
6. Holds unanimously: (a) that the respondent State is to pay to the applicant, within three months, 100,000 (one hundred thousand) Finnish marks in compensation for non-pecuniary damage, and, for legal costs and expenses, 160,000 (one hundred and sixty thousand) Finnish marks, plus any applicable VAT, less 10,835 (ten thousand, eight hundred and thirty-five) French francs to be converted into Finnish marks at the rate applicable on the date of deliv- ery of the present judgment; (b) that simple interest at an annual rate of 11% shall be pay- able from the expiry of the above-mentioned three months until settlement;
7. Dismisses unanimously the remainder of the claim for just satisfaction. [omissis]
In accordance with Article 51 para. 2 of the Convention and Rule 55 para. 2 of Rules of Court B,
the partly dissenting opinion of Mr Xx Xxxxx is annexed to this judgment. [omissis]
Corte europea dei diritti dell’uomo, sent. 23 aprile 0000,
Xxx Xxxxxxxx x. Xxxxx Xxxxx (xxx. n. 21363/93, 21364/93 e 21427/93) (1)
[omissis]
AS TO THE FACTS
I. Particular circumstances of the case
A. BACKGROUND TO THE CASE
9. The police received information to the effect that the applicants were the perpetrators of sev- eral robberies, and that they operated from two residential caravan sites. It was decided to detail a police observation team (observatieteam, “OT”) to keep these caravan sites under observation as from 25 January 1989.
10. On 26 January 1989 at around 5.15 p.m. three motor cars, a Mercedes estate car, a BMW and a Lancia, were seen to leave one of the two caravan sites shortly after each other. Their registration numbers were noted.
11. On 26 January 1989 at around 6 p.m. the post office of the town of Oirschot was robbed. The window of the post office was broken down by backing a Mercedes estate car equipped with a steel girder into it. One of the robbers, wearing a black balaclava helmet and armed with a pistol, forced the staff to surrender some 70,000 Netherlands guilders. The robbers then set the Mercedes car alight and made off in a BMW.
Police cars alerted by radio followed the BMW. Police officers saw the BMW drive onto a sand track leading into a nearby forest. Later they saw a column of smoke coming out of the forest. The BMW was subsequently found there, burnt out.
Four police officers in a police car saw a red car (later found to be a Lancia) leave the forest via the same sand track used by the BMW and gave chase. In the course of the chase the boot of the car was opened from the inside and men squatting in the back opened fire at the pursuing police car with a pistol and a sub-machine gun. A car containing civilians was hit by a stray bullet but its oc- cupants were not hurt.
The Lancia made off at high speed and entered a side road. When the police car caught up with it the Lancia was stationary. A man standing in the road fired at the police car with a sub-machine gun. The police car was hit and its occupants injured, after which the gunman and the persons in the Lancia made their escape.
12. All three cars - the Mercedes, the BMW and the Lancia – were later identified as the cars which had been seen leaving the caravan site (see paragraph 10 above).
B. THE CRIMINAL PROCEEDINGS
1. Proceedings in the ‘s-Hertogenbosch Regional Court
13. The applicants and one other man, called Xxxxxxx Xxxxxxxxxx (not to be confused with the applicant Xxxxxxxx Xxxxxxx Xxxxxxxxxx), were charged with attempted murder - or, in the alter- native, attempted manslaughter - and robbery with the threat of violence and summoned to appear for trial before the ‘s-Hertogenbosch Regional Court (arrondissementsrechtbank) on 19 May 1989.
(1) Testo tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
Evidence proffered by the prosecution included statements made to a named police officer by po- lice officers identified only by a number.
14. In interlocutory judgments of 2 June 1989 the Regional Court decided that it was necessary to establish whether the police officers identified only by numbers had investigative competence (opsporingsbevoegdheid ). To that end it referred the case to the investigating judge (rechter- commissaris) and adjourned the case until 20 July.
The investigating judge established that the police officers in question did in fact have investigative competence.
Counsel for Mr Xxxxxx Xxxxxxxx argued, inter alia , that the police officers identified only by a number were anonymous witnesses, so that their statements did not constitute sufficient proof, in the absence of corroborating evidence, to support a conviction. The Regional Court rejected this argument, holding that since the police officers in question had investigative competence, the evi- dential value of their statements was not affected by their anonymity.
The Regional Court convicted the accused of attempted manslaughter and robbery with the threat of violence. The evidence identifying the applicants as perpetrators of these crimes was constituted by the statements made before the trial by the anonymous police officers, none of whom gave xxx- xxxxx before either the Regional Court or the investigating judge.
All five accused were sentenced to ten years’ imprisonment.
2. Proceedings in the ‘s-Hertogenbosch Court of Appeal
15. The five convicted men appealed to the ‘s-Hertogenbosch Court of Appeal (gerechtshof). At the hearing before that court on 2 May 1990 the applicants’ lawyers made requests for several named and anonymous witnesses to be heard. The Court of Appeal thereupon referred the case to the investigating judge, firstly because it considered it necessary to find out what objections the po- lice officers themselves had against the lifting of their anonymity and secondly because the number of persons to be heard was such that it could not conveniently be done in open court. The persons to be heard were four named police officers, eleven anonymous police officers (identified to the de- fence and the court only by a number) and two civilians.
16. The named and anonymous witnesses were questioned on 24 and 27 September and on 5-8 and 13 November 1990.
All of the anonymous witnesses were - or had at the relevant time been - police officers invested with investigative competence.
The procedure followed for questioning them was that the investigating judge, the witness and a registrar were together in one room, and the defendants, their lawyers and the advocate-general in another. The defendants, the lawyers and the advocate -general could hear all the questions asked to the witnesses and their replies through a sound link. The statements of the witnesses were re- peated by the investigating judge to the registrar, who took them down.
17. On 24 September 1990 witness 001 was interrogated. He was a member of an observation team. It was his wish and that of his superiors that he remain anonymous in the interests of the ser- vice; in addition, his family had been threatened in the past. Witness 001 confirmed a statement which he had made earlier, to the effect that when confronted with Mr xxx Xxxxxxxx through a two-way mirror he had identified him as the man who had sat next to the driver of the Lancia.
Witness BRZ03 was interrogated the same day. His wish to remain anonymous was primarily in- spired by the wish to ensure the safety of his family and friends; he had been threatened in the past. At the time of the crimes in question he had been a member of an arresting team. He had been a passenger in the front seat of the police car used to pursue the Lancia and had been badly wounded in the shooting.
Witness 006 was a member of an observation team. He wished to remain anonymous to ensure the safety of his family and friends and his colleagues; he knew of cases in which a police officer’s family had been threatened. He confirmed the correctness of a report which he had drawn up to- gether with witness 005.
Witness BRZ09 had been a member of an arresting team at the relevant time. He wished to remain anonymous in the interests of the service but also for the safety of his family. He confirmed an ear- lier report to the effect that he had been a back-seat passenger in the police car which had pursued the Lancia, and had been fired at.
18. On 27 September 1990 the investigating judge drew up an official report of his findings with regard to the first four anonymous witnesses. He considered them all reliable, although they had shown great caution when asked questions which might affect their anonymity. He also considered their reasons for wishing to remain anonymous well-founded.
19. Also on 27 September 1990 the investigating judge interrogated, in addition to two named police officers, the named witness Mr Xxxxxxx. Mr Xxxxxxx was a civilian bystander who stated that he had seen a man fire a gun. He had later identified Mr xxx Xxxxxxxx as that man when con- fronted with him through a two-way mirror.
20. On 3 October 1990 the Court of Appeal resumed the hearing. The lawyer defending Mr Xxx- xxx Xxxxxxxx asked for one anonymous police officer - BRZ03 - to be heard in open court. The Court of Appeal however decided not to continue its own examination of the case until all wit- nesses had been questioned by the investigating judge.
21. On 5 November the investigating judge resumed the interrogation of the witnesses.
Xxxxxxx XXX00 stated that he was a member of an arresting team. He had been the driver of the po- lice car used in the attempt to pursue the Lancia and force it to stop. He had recognised Mr Xxxxx Xxxxxxxx as the driver of the Lancia.
Witness 004 stated that he had been a member of an observation team at the relevant time. He wished to remain anonymous because he feared for the safety of his family. In addition, he was in- volved in the work of the criminal intelligence department (Criminele Inlichtingen Dienst, “CID”). His superiors wanted him to remain anonymous for that reason. He too had recognised Mr Xxxxx Xxxxxxxx as the driver of the Lancia.
Witness 005 was also a member of an observation team. He had been a passenger in a police car which had passed the Lancia and had recognised Mr Xxxxx Xxxxxxxx as the driver.
22. Witness 003 had been a member of an observation team at the relevant time. He wished to remain anonymous in the interests of the service as well as for the safety of his family. He had been the driver of an unmarked police car and had seen the BMW and the Lancia drive past but had not recognised any of their occupants.
Witness 46204 had been a member of an arresting unit. He wished to remain anonymous in the in- terests of the service as well as for the safety of his family. He had seen the BMW both before and after the robbery in Oirschot. The driver on both occasions had been the applicant Xxxxxxxxxx, whom he had later recognised at a confrontation.
Witness 46203 had been a member of the same arresting unit. He was “99% certain” that he had seen Mr van Xxxxxxxx enter the caravan site about an hour before the three cars left from there.
Witness BRZ08 had left the police force but at the relevant time had been a member of an arresting team. He wished to remain anonymous for the safety of his family, three of his colleagues having been threatened in the past. He had been the driver of the police car which had pursued the Lancia and had been fired at. He had sustained injuries, as had the other police officers in the car.
23. The various named police officers provided background information relating to the investi- gation and the procedures followed but did not positively identify any of the applicants as the per- petrators. Some of them stated that they knew of colleagues who had been threatened in other cases but none of them had yet been threatened in this case.
24. On 19 November 1990 the investigating judge drew up a report of his findings concerning the questioning of the witnesses. This document reads as follows:
“REGIONAL COURT OF ‘s-HERTOGENBOSCH
Investigating judge with responsibility for criminal cases OFFICIAL RECORD OF FINDINGS
The cases against:
Xxxxxx Xxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxx xxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxx, and Xxxxxxxx Xxxxxxx Xxxxxxxxxx were referred by the Court of Appeal at ‘s-Hertogenbosch to myself,
A.H.L. Xxxxxxxx Xxxxxx, investigating judge with responsibility for criminal cases at the Regional Court of ‘s-Hertogenbosch. I, investigating judge, wish to place the following on record in connec- tion with the investigation conducted by myself with the assistance of the registrar.
The Court of Appeal referred the cases against the said accused persons to me in order for a total of twenty-one witnesses to be heard. Eleven of them are designated only by a number in the docu- ments.
I, investigating judge, questioned twenty witnesses in the presence of the registrar. I also, together with the registrar, drew up a record of the hearing for each accused separately. The statements of the witnesses are however similar in all cases, since the hearings took place simultaneously in all five cases.
Thus in the statements the names of fellow accused and their counsel appear as ‘persons asking questions’. The witnesses indicated were questioned on the dates given below:
24 September 1990: 001, BRZ03, 006, BRZ09
27 September 1990: F.P.W. Xxxxxxx, X.X.X.X. xx Xxx, G.J.M. Xxxxxx 5 November 1990: BRZ10, 004, 005
6 November 1990: 003, 46204, 46203
7 November 1990: BRZ08, H.P.C. Xxxxx (adjourned)
8 November 1990: W.P.A. Xxxxxxx, P.F.M. Xxxxx, X.X.X. Xxxxx (resumed) 13 November 1990: H.B. Xxxxxxx, P.J.M. Xxxxxxxx, G.W.A.M. Ligtvoet. ...
The accused, their counsel and the advocate-general were always invited to the hearings. When- ever they appeared they were also given an opportunity to ask questions. They did so extensively.
The hearings took up a great deal of time. The shortest hearing of an unidentified witness lasted nearly two hours (46203); the longest about five hours (BRZ08). The hearings of witnesses Xxxxxx and Xxxxx each lasted a good five hours. This information may perhaps be of use in assess- ing the suggestion that was made on 3 October 1990 to the Court of Appeal, that all the witnesses should be heard by the Court in a single day.
Where a witness did not answer a question, this is also indicated in the text of his statement.
The statements were recorded in very great detail and in fact cover all the matters raised - also by the defence -, in a factual and where necessary even literal transcript. Once the text existed in draft form, those present were invariably given the opportunity to make comments, request clarif ication and put further questions. Where necessary the statement was then amended, clarified and ex- panded - always, of course, within the limits of what the witness really wanted to say. And even if
... there are drawbacks to the manner in which the hearings of the unidentified witnesses were car- ried out, it is my belief that the advocate-general and the defence had sufficient opportunity to question the witnesses thoroughly at the hearings. Those present really did have the opportunity for hours on each occasion. If they so desired, those present had several chances to put questions to a witness. Unlike what normally happens at court hearings, everyone was able to follow the entire transcription of the statements and then still obtain clarifications and additions. Questions were barred only on substantive grounds (see the records for details), not by reason of the time taken for the interrogations.
In the light of recent case-law in the matter of statements by unidentified witnesses, I think it is right for me to make known my findings regarding the statements of the unidentified witnesses heard in this case. I, the investigating judge, and the registrar, are the only persons who attended all the hearings from start to finish.
I stand by my official record of findings dated 27 September 1990 where the witnesses referred to in it are concerned [see paragraph 18 above]. I would now add the following:
All the ‘numbered witnesses’ made their identities known to me. It was clear to me that all eleven were different persons.
Their statements indicated such a knowledge of the facts that I am entirely convinced that I was talking to the witnesses referred to by numbers in the documents. I have no reason to doubt their reliability. Nor at any time did I have the impression that I was being lied to. On the contrary, each and every one of them was very much to the point. The persons facing me wore serious ex- pressions. The unidentified witnesses were clearly quite aware of the serious nature of the oath or pledge they had given and of the very great interests at stake, especially for the accused persons in- volved. The calm, quiet manner in which, for example, BRZ03 and BRZ08 related their experi- ences in Leende (in which connection I expressly leave it to the Court of Appeal to decide whether these accused persons were the perpetrators) was impressive and certainly gave no indication of malice towards the accused. All the witnesses manifested a certain degree of wariness, which, in view of their desire to remain anonymous and the sometimes rather forceful manner of questioning on the part of [two of the defence lawyers] in particular, did not bother me.
If all the statements are laid side by side, some differences of detail can be observed. I do not think that these differences are such as to warrant the conclusion that the witnesses may be unreliable. Rather, in so far as I have observed any differences, I would describe them rather as the ‘extrane- ous noise’ which in my experience practically always affects statements by witnesses. Of course it is ultimately for the Court of Appeal to decide on the value of the statements.
The reasons for the witnesses wishing to remain anonymous in the instant case are given in the re- cords of the hearings. It seems to me that I am now affording the Court an opportunity to reflect on the value of those arguments. I think that the text of the recent judgments of the Supreme Court of the Netherlands also compels me, as the judge conducting the questioning, to state my opinion on the reasons given by the witnesses for remaining anonymous. I am also concerned to inform the Court of Appeal that I am aware that the Court is called to take the final decision in these matters. I consider the reasons behind the desire to remain anonymous to be such as fully to justify anonym- ity. I have had regard in this connection to the nature of these cases and to the nature of the activi- ties of the anonymous witnesses concerned.
I take the liberty of observing - while expressly leaving aside the question whether these accused persons are the perpetrators - that the instant case tellingly illustrates the fact that there are evi- dently people for whom human lives do not count when it comes to evading responsibility for ex- ceptionally serious crimes which they may have committed.
I can understand that there are major objections to revealing the names and appearance of members of arresting teams, observation teams and arresting units to the public at large. By that I mean that the obvious interest of society in having very serious crimes solved should weigh in the balance. At the same time, I am of the opinion that the conduct of the unidentified witnesses (who are no longer anonymous to myself) who have appeared in this case is the subject of proper judicial su- pervision. It is not apparent to me as investigating judge that the ‘numbered witnesses’ acted care- lessly. Rather, in my opinion, the opposite was true.
During the last hearing of the witness Xxxxx, [two of the defence lawyers] asked me to record that, in their view, the witness answered not only the questions of the defence but also questions by the investigating judge in a ponderous, deliberate manner that was hard to follow. I have been asked to endorse that opinion. I decline to do so. The witness Xxxxx was wary in his answers, which I find understandable in view of the barrage of questions - which were not always formulated equally clearly. It must not be forgotten that a witness who is being questioned on oath about a multitude of events that occurred some years previously should not be reproached for failing, in his answers to those questions, to keep up with the tempo of the rather forceful questioning to which [the two lawyers] in particular subjected him on 8 November 1990, together and in tandem. Furthermore, I can imagine that a witness may be somewhat annoyed if he is repeatedly asked the same question, especially if he has already replied under oath on the day before. The witness Xxxxx kept a cool head, and in so doing demonstrated a certain quality. As far as I can judge at the present time, I re- gard him as a reliable witness. Nor do I think that he can be regarded as a reluctant witness, if only by reason of his extensive statements in the records of 7 November and 8 November 1990.
The witness Xxxxx informed me on 15 November 1990 that on 26 January 1989 the persons num- bered BRZ05 and BRZ14 were in the car with BRZ10. He gave me this information following a request by the defence.
I think I ought not to omit to mention, with regard to the witness Xxxxxxx, that throughout the hours of insistent questioning he certainly did not strike me as untruthful. In my judgment, Mr Xxxxxxx is a simple, friendly and very obliging man.
Perhaps I can illustrate the impression I had of him by recording that, after the interrogation had gone on for a considerable time, I thought it opportune to ask the unusual question whether the wit- ness could read. I do not exclude the possibility that he is not entirely aware of the great impor- tance of an exact and consistent account of what he saw.
In the second paragraph on the first page of the statement by the witness Xxxxxxx, I suggested to him that the confrontation had occurred on 15 February 1989. The date should be 9 March 1989.
[One of the defence lawyers] pointed this out to me later and I think he is right. ...
(signed) A.H.L. Roosmale Xxxxxx 19 November 1990”
25. The hearing before the Court of Appeal was resumed on 16, 17 and 18 January 1991.
On 16 January a named witness, Mr Xxxxxxx, was heard in open court. He had stated to the police in March 1989, and to the investigating judge in September 1990, that he recognised the applicant Xxx Xxxxxxxx as the man who had fired a sub-machine gun at a police car in the village of Leende. Before the Court of Appeal he stated that on the latter occasion he had been allowed to re-read his earlier statement, but that he was no longer sure whether he could still recognise either the weapon or the man who had fired it. He also said that he had not been threatened in connection with the case.
On 18 January the lawyer acting for the applicant Xxx Xxxxxxxx brought forward two persons cho- sen for their excellent eyesight (both having participated in the Olympic games as members of the Netherlands rifle -shooting team), and who had participated in a reconstruction of the shooting in light and weather conditions similar to those obtaining at the time of the crime. These witnesses both stated that they had been unable to distinguish the features of the persons acting the parts of the perpetrators at the distances at which it had been alleged that the accused had been seen by Mr Xxxxxxx. A video recording had been made of the reconstruction, in the presence of a notary who had kept the original videotape under seal.
The hearing was again resumed on 21 January 1991, and the video of the reconstruction was shown.
26. The Court of Appeal convicted all four applicants in four separate but similar judgments on 4 February 1991.
All four applicants were found guilty of attempted murder and robbery with the threat of violence and sentenced to fourteen years’ imprisonment. The fifth suspect, Mr Xxxxxxx Xxxxxxxxxx, was acquitted.
The Court of Appeal’s judgment in the case of the applicant Xxx Xxxxxxxx contained the follow- ing:
“Considering with regard to the statements, used in evidence, of the persons who remained anony- mous, that these statements were taken down by a judge, more particularly the investigating judge responsible for criminal cases within the jurisdiction of the ‘s-Hertogenbosch Regional Court, who himself knows the identity of the witnesses, who has heard these witnesses on oath, who in his of- ficial record of his findings has given his reasoned opinion of the reliability of the witnesses and
their reasons for wishing to remain anonymous, and who, moreover, has offered the accused and the defence the opportunity to question these witnesses, of which opportunity, as appears from the official records of the interrogations, extensive use has been made.
The objections of the witnesses heard by the investigating judge and identified only by a number to remain anonymous (sic) are sufficient reason for the Court of Appeal to continue this anonymity. The Court of Appeal refuses the request made by counsel at the hearing to have these witnesses
heard in open court, even if this request should be understood to imply that the witnesses might be disguised, since the possibility that the witnesses may be recognised in open court cannot be ex- cluded.
Of the arguments for continuing the anonymity of the witnesses, the Court of Appeal considers par- ticularly persuasive the personal safety of these witnesses and their families, and it makes no dif- xxxxxxx that these witnesses have not yet been threatened. As already noted in the Court of Ap- peal’s interlocutory decision of 3 October 1990, the present case concerns extremely serious crimes, the [attempted murder] having been committed so as to evade recognition and arrest by the police, the perpetrators having been prepared to sacrifice a number of human lives. In these cir- cumstances, the risk run by the witnesses identified only by a number and their families if their anonymity is lifted or insufficiently guaranteed is decisive. In so far as anonymous witnesses have refused to answer questions this was done in order not to disclose methods of investigation or to maintain the anonymity of other investigating officers involved in the case.”
The Court of Appeal considered the statements of the anonymous police officers to be corroborated by each other and by the evidence available from non-anonymous sources. This other evidence in- cluded a transcript of a telephone conversation between the wife of Mr Xxxxx Xxxxxxxx and her mother intercepted two days after the date of the crime, from which it appeared that Mr Xxxxx Xxx- xxxxx had not returned home in the meanwhile and his whereabouts were unknown, as well as fo- rensic reports relating to the cars and the weapons used for the crime and the above-mentioned statements of the named civilians and police officers. However, the Court of Appeal did not rely on the statements of Mr Xxxxxxx.
3. Proceedings in the Supreme Court
27. The applicants filed appeals on points of law (xxxxxxxx) to the Supreme Court (Hoge Raad).
In accordance with the advisory opinion of the advocate-general, the Supreme Court dismissed the appeals in a series of judgments of 9 June 1992. It held that in the circumstances the evidence given by the unnamed police officers was admissible, since on the one hand their evidence was suf- ficiently corroborated by the evidence obtained from named sources and on the other the procedure followed provided sufficient compensation for the handicaps under which the defence had la- boured.
The Supreme Court’s judgments concerning Mr Xxxxxx Xxxxxxxx and Mr van Xxxxxxxx were re- ported in Nederlandse Jurisprudentie (Netherlands Law Reports, “NJ”) 1992, nos. 772 and 773 re- spectively.
28. It has not been alleged that any named or anonymous witnesses were at any time threatened by or on behalf of the applicants.
II. RELEVANT DOMESTIC LAW AND PRACTICE
29. Except for the differences noted below (see paragraphs 39 and following), relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the Court’s Xxxxxxxxx v. the Netherlands judgment of 20 November 1989 (Series A no. 166). Refer- ence is therefore made to that judgment, especially pp. 13-17, paras. 22-32.
A. THE CODE OF CRIMINAL PROCEDURE
1. Evidence in general
30. The finding that an accused has committed the act with which he is charged must be based on “legal means of evidence” (wettige bewijsmiddelen - Article 338 of the Code of Criminal Proce- dure (Wetboek van Strafvordering - CCP)).
“Legal means of evidence” include inter alia statements of witnesses relating to facts or circum- stances which they themselves have witnessed (Articles 339 para. 1 (3) and 342 para. 1 CCP) and written documents (Article 339 para. 1 (5) and 344 para. 1 CCP).
Such evidence must normally be corroborated by other evidence (Articles 342 para. 2, 344 para. 1
(5) CCP). However, an official record made in the proper form by a police officer invested with investigative competence can be admitted without corroboration (Article 344 para. 2 CCP).
2. Witnesses
31. The public prosecutor has the power to call witnesses and experts to the hearing (Article 260 CCP). In his summons to the accused he gives a list of the witnesses and experts to be brought forward by the prosecution. If the accused wishes to call witnesses, he can - according to Article 263 - submit a request to the public prosecutor no later than three days before the court hearing to summon a witness before the court. As a rule, the public prosecutor should summon the witness, but - according to Article 263 para. 4 - he may refuse to do so if it is to be reasonably assumed that no prejudice to the rights of the defence will be caused if the witness is not heard in open court (“Indien redelijkerwijs moet worden aangenomen, dat de verdachte niet in zijn verdediging kan worden geschaad wanneer een door hem opgegeven getuige ... niet ter terechtzitting wordt ge- hoord”). He has to give a reasoned decision in writing and must at the same time inform the de- fence of its right under Article 280 para. 3 (see paragraph 33 below) to renew the request to the trial court at the hearing.
32. At the opening of the trial hearing the prosecutor hands to the court a list of all the witnesses called, which is then read out by the registrar (griffier) (Article 280 para. 2).
33. If the public prosecutor has failed to summon a witness at the request of the accused, or de- clined to do so, the defence may ask the court to have that witness summoned (Article 280 para. 3). The court so orders, unless it finds that the non-appearance of this witness cannot reasonably be considered prejudicial to the rights of the defence (“De rechtbank beveelt dat de ... getuige ... zal worden gedagvaard of schriftelijk opgeroepen, tenzij zij ... van oordeel is dat door het achterwege blijven daarvan de verdachte redelijkerwijs niet in zijn verdediging kan worden geschaad” - Article 280 para. 4).
34. A request by the defence to hear a witness who has not been placed on the list of witnesses, who has not been convened to attend the trial and whose summons the defence has not sought in accordance with Article 280 falls under Article 315 CCP (see paragraph 35 below). It appears from the judgment of 23 December 1986 by the Supreme Court that the trial court needs only accede to a request of this nature if it finds it necessary to do so.
35. Under Article 315 CCP the trial court has the power to order of its own accord the produc- tion of evidence, including the summoning of witnesses whom it has not yet heard.
36. If it finds that there is occasion to do so, the trial court may order that a witness be brought to its hearing by the police (Articles 282 para. 1 and 315 CCP).
37. If at the trial the trial court finds it necessary to have any factual question examined by the investigating judge, it must suspend the hearing and refer the question to the investigating judge along with the case file. The investigation carried out by the investigating judge in these cases is deemed to be a preliminary judicial investigation and is subject to the same rules (Article 316 CCP).
38. Appeal proceedings against the conviction or sentence at first instance involve a complete rehearing of the case. Both the prosecution and the defence may ask for witnesses already heard at first instance to be heard again; they may also produce new evidence and request the hearing of witnesses not heard at first instance (Article 414 CCP). The defence enjoys the same rights as it does at first instance (Article 415 CCP).
B. CASE-LAW RELATING TO ANONYMOUS WITNESSES
39. In its judgment of 9 January 1990, NJ 1990, no. 409, the Supreme Court held that there was no general rule in Netherlands law to the effect that statements by anonymous police officers could only be admitted if the trial court had first established the existence of clear indications that the of- ficers were under threat.
40. In its judgment of 2 July 1990, NJ 1990, no. 692, the Supreme Court considered that it had to be assumed in light of the European Court’s Kostovski judgment that the use of statements by anonymous witnesses was subject to stricter requirements than those defined in its case-law until then. It defined these stricter requirements in the following rule: such a statement must have been taken down by a judge who (a) is aware of the identity of the witness, and (b) has expressed, in the official record of the hearing of such a witness, his reasoned opinion as to the reliability of the wit- ness and as to the reasons for the wish of the witness to remain anonymous, and (c) has provided the defence with some opportunity to put questions or have questions put to the witness. On the other hand, according to the same judgment, a written document containing the statement of an anonymous witness may be used in evidence if (a) the defence has not at any stage of the proceed- ings asked to be allowed to question the witness concerned, and (b) the conviction is based to a significant extent on other evidence not derived from anonymous sources, and (c) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and cir- cumspection.
C. LAW REFORM
41. The Act of 11 November 1993, Staatsblad (Official Gazette) 1993, no. 603, has added to the CCP a number of detailed provisions relating to the “protection of witnesses”. It entered into force on 1 February 1994. The additions include the following.
Article 226a now provides that the identity of a witness may remain secret if there is reason to be- lieve that the disclosure of his identity may threaten his life, health, safety, family life or socio- economic existence and if the witness has made it clear that he does not wish to make any state- ment because of this. The decision is made by the investigating judge, who must first hear the prosecution, the defence and the witness himself.
An appeal against the decision of the investigating judge lies to the trial court (Article 226b).
The investigating judge may order that a threatened witness be heard in the absence of the accused, or of counsel, or of both, so as not to disclose the identity of the threatened witness; in that event, the prosecuting authorities may not attend the questioning of the witness either. The investigating judge must then allow the defence to put questions of its own to the witness, either through the use of telecommunication or in writing (Article 226d).
Article 264 now lays down that the prosecution may refuse to summon a threatened witness.
If the trial court has ordered that a witness be heard and that witness turns out to be under threat, he must be heard in camera by the investigating judge (Article 280 para. 5).
The statement of an anonymous witness taken in accordance with the above-mentioned provisions may only be used in evidence against a person accused of crimes in respect of which his detention on remand is permitted (Article 342 para. 2 (b)).
A new paragraph has been added to Article 344 to the effect that a written document containing a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or have him questioned.
42. The following passages are taken from the explanatory memorandum of the bill which be- came the Act of 11 November 1993: “The Bill is based on the assumption that only threatened wit- nesses should be in a position to claim complete anonymity. I realise that the usefulness of certain police officers (e.g. undercover agents posing as drugs purchasers, members of an arresting team or an observation team) will be reduced thereby. However, the public interest in investigating serious crime cannot alone justify guaranteeing complete anonymity. This interest can in my opinion be sufficiently protected if the law creates the possibility to refrain from asking the police officer for
certain identifying information and by granting the interrogating judge the power to take all meas- ures which are reasonably required to prevent the disclosure of such identifying information, such as making the police officer unrecognisable by the use of make-up or disguise or preventing eye contact between the accused and the police officer.” (Explanatory Memorandum, Lower House of Parliament 1991-92, 22 483, no. 3, p. 17).
PROCEEDINGS BEFORE THE COMMISSION
43. Mr xxx Xxxxxxxx and Mr Xxxxxx Xxxxxxxx applied to the Commission on 27 November 1992, Mr Xxxxx Xxxxxxxx on 8 December and Mr Xxxxxxxxxx on 24 November. They relied on Article 6 paras. 1 and 3 (d) of the Convention, complaining that their convictions were based to a decisive extent on the evidence of anonymous witnesses, in respect of whom the rights of the de- fence had been unacceptably restricted.
44. The Commission declared the applications (nos. 21363/93, 21364/93, 21427/93 and 22056/93) admissible on 15 May 1995. In its report of 27 February 1996 (Article 31) it expressed the opinion that there had been no violation of Article 6 paras. 1 and 3 (d) of the Convention (twenty votes to eight). The full text of the Commission’s opinion and of the two dissenting opin- ions contained in the report is reproduced as an annex to this judgment.
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
45. The Government concluded their memorial by expressing the opinion that the applicants had had a “fair trial” within the meaning of Article 6 paras. 1 and 3 (d) of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 AND 3 (d) OF THE CONVEN- TION
46. The applicants complained that their conviction had been based essentially on the evidence of police officers whose identity was not disclosed to them and who were not heard either in public or in their presence. They alleged a violation of Article 6 paras. 1 and 3 (d), according to which: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democ- ratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ... 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; ...”
Neither the Government nor the Commission shared this view.
A. ARGUMENTS BEFORE THE COURT
47. The applicants questioned the need to maintain the anonymity of the police officers at all. There had in their contention not been any danger for them or their families. This was borne out by the fact that Mr Xxxxxxx, the one named witness who in the earlier stages of the proceedings had made statements incriminating one of the applicants, had not been granted anonymity and it had not been suggested that he had at any time been threatened.
Moreover, the interrogation of the witnesses should in their contention not have taken place before the investigating judge. It would in their view have been feasible to have the police officers ques- tioned in open court, wearing disguise if need be.
In addition, the applicants considered that they had not had sufficient opportunity to challenge and question the police officers. They drew attention to the conditions under which the interrogation of the anonymous witnesses had taken place.
The anonymous police officers had been confined in a room with the investigating judge, separated from the applicants and their lawyers; it had not been possible for the applicants or their lawyers to discover whether there had been any other person in that room or what was going on there.
Not all the questions asked by the defence had been answered. Questions not answered had in- cluded, for instance, where the police officer being interrogated had been at the time he made his observation, whether he wore spectacles, and whether the observation of the caravan sites had in- volved the use of optical aids or a directional microphone.
Finally, the applicants claimed that their conviction had been based “to a decisive extent” on the evidence given by anonymous witnesses. The only evidence relied on by the Court of Appeal pos i- tively identifying the applicants had been that given by anonymous police offic ers.
48. The Government and the Commission both considered that there had been no violation of Article 6 paras. 1 and 3 (d).
They both considered that the safety of the police officers themselves and their families, and the need not to impair their usefulness in other similar operations, provided sufficient justification for maintaining their anonymity.
The procedure followed had been that established by the Netherlands Supreme Court in its judg- ment of 2 July 1990 (see paragraph 40 above) in the wake of the European Court’s judgment in the Kostovski case (judgment of 20 November 1989, Series A no. 166). This procedure, so they argued, had been accepted by the Court in its Doorson judgment (Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996-II).
In accordance with this procedure, the statements of the anonymous police officers had been taken down (a) by a judge, who (b) had himself ascertained the identity of the police officers concerned,
(c) had given a written opinion of their reliability and credibility in his official report, (d) had given a reasoned opinion of their reasons to remain anonymous and found them sufficient, and (e) had given the defence sufficient opportunity to question them or have questions put to them. The offi- cial report of the investigating judge, which was very detailed, bore this out.
There had in addition been evidence from non-anonymous sources, namely a recorded telephone conversation, statements of named police officers and certain technical evidence, which tended to corroborate the statements of the anonymous police officers. The conviction of the applicants did therefore not rest solely on the latter statements.
B. THE COURT ’S ASSESSMENT
1. Applicable principles
49. As the requirements of Article 6 para. 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 para. 1, the Court will examine the complaints under Article 6 paras. 1 and 3 (d) taken together (see, among many other authorities, the above-mentioned Doorson judgment, pp. 469-70, para. 66).
50. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, in- cluding the way in which evidence was taken, were fair (see, among other authorities, the above- mentioned Doorson judgment, p. 470, para. 67).
51. In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 re- quire that the defendant be given an adequate and proper opportunity to challenge and question a
witness against him, either when he makes his statements or at a later stage (see the / •di v. Swit- zerland judgment of 15 June 1992, Series A no. 238, p. 21, para. 49).
52. As the Court had occasion to state in its Doorson judgment (ibid., p. 470, para. 69), the use of statements made by anonymous witnesses to found a conviction is not under all circumstances incompatible with the Convention.
53. In that same judgment the Court noted the following: “It is true that Article 6 does not ex- plicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled.
Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.” (see the above-mentioned Doorson judgment, p. 470, para. 70)
54. However, if the anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties which criminal proceedings should not normally involve. Accordingly, the Court has recognised that in such cases Article 6 para. 1 taken together with Article 6 para. 3 (d) of the Convention requires that the handicaps under which the defence labours be sufficiently counterbal- anced by the procedures followed by the judicial authorities (ibid., p. 471, para. 72).
55. Finally, it should be recalled that a conviction should not be based either solely or to a deci- sive extent on anonymous statements (ibid., p. 472, para. 76).
2. Application of the above principles
56. In the Court’s opinion, the balancing of the interests of the defence against arguments in fa- vour of maintaining the anonymity of witnesses raises special problems if the witnesses in question are members of the police force of the State. Although their interests - and indeed those of their families - also deserve protection under the Convention, it must be recognised that their position is to some extent different from that of a disinterested witness or a victim. They owe a general duty of obedience to the State’s executive authorities and usually have links with the prosecution; for these reasons alone their use as anonymous witnesses should be resorted to only in exceptionalcir- cumstances. In addition, it is in the nature of things that their duties, particularly in the case of ar- resting officers, may involve giving evidence in open court.
57. On the other hand, the Court has recognised in principle that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the ano- nymity of an agent deployed in undercover activities, for his own or his family’s protection and so as not to impair his usefulness for future operations (see the above-mentioned / •di judgment, p. 21, para. 49).
58. Having regard to the place that the right to a fair administration of justice holds in a democ- ratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied.
59. In the present case, the police officers in question were in a separate room with the investi- gating judge, from which the accused and even their counsel were excluded. All communication was via a sound link. The defence was thus not only unaware of the identity of the police witnesses but were also prevented from observing their demeanour under direct questioning, and thus from testing their reliability (see the above-mentioned Xxxxxxxxx judgment, p. 20, para. 42 in fine).
60. It has not been explained to the Court’s satisfaction why it was necessary to resort to such extreme limitations on the right of the accused to have the evidence against them given in their presence, or why less far-reaching measures were not considered.
In the absence of any further information, the Court cannot find that the operational needs of the police provide sufficient justification. It should be noted that the explanatory memorandum of the
bill which became the Act of 11 November 1993 (see paragraph 42 above) refers in this connection to the possibilities of using make-up or disguise and the prevention of eye contact.
61. Nor is the Court persuaded that the Court of Appeal made sufficient effort to assess the threat of reprisals against the police officers or their families. It does not appear from that court’s judgment that it sought to address the question whether the applicants would have been in a posi- tion to carry out any such threats or to incite others to do so on their behalf. Its decision was based exclusively on the seriousness of the crimes committed (see paragraph 26 above).
In this connection, it is to be noted that Mr Xxxxxxx, a civilian witness who in the early stages of the proceedings had made statements identifying one of the applicants as one of the perpetrators, did not enjoy the protection of anonymity and it has not been claimed that he was at any time threatened.
62. It is true - as noted by the Government and the Commission (see paragraph 48 above) - that the anonymous police officers were interrogated before an investigating judge, who had himself as- certained their identity and had, in a very detailed official report of his findings, stated his opinion on their reliability and credibility as well as their reasons for remaining anonymous.
However these measures cannot be considered a proper substitute for the possibility of the defence to question the witnesses in their presence and make their own judgment as to their demeanour and reliability. It thus cannot be said that the handicaps under which the defence laboured were coun- terbalanced by the above procedures.
63. Moreover, the only evidence relied on by the Court of Appeal which provided positive iden- tification of the applicants as the perpetrators of the crimes were the statements of the anonymous police officers. That being so the conviction of the applicants was based “to a decisive extent” on these anonymous statements.
64. In the Court’s view, the present case falls to be distinguished from that of Doorson: in the latter case it was decided on the basis of information contained in the case file itself that the wit- nesses Y.15 and Y.16 - who were both civilians, and who knew the accused personally - had suffi- cient reason to believe that he might resort to violence, and they were heard in the presence of counsel (see the above-mentioned Doorson judgment, pp. 454-55, para. 25, pp. 455-56, para. 28, and pp. 470-71, paras. 71 and 73).
In addition, in the latter case other evidence providing positive identification of the accused as the perpetrator of the crimes charged was available from sources unrelated to the anonymous witnesses (ibid., pp. 458-59, para. 34, and p. 472, para. 76).
65. Against this background the Court cannot find that the proceedings taken as a whole were fair.
C. CONCLUSION
66. There has been a violation of Article 6 para. 1 taken together with Article 6 para. 3 (d).
II. APPLICATION OF ARTICLE 50 OF THE CONVENTION
67. Article 50 of the Convention provides as follows: “If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the ... Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
A. DAMAGE
68. The applicants argued that if the ‘s-Hertogenbosch Court of Appeal had not relied on the statements of the anonymous police officers, there would have been no case against them and they would have been acquitted. They each claimed non-pecuniary damage to an amount of 250 Neth- erlands guilders (NLG) for each day of detention.
The Government considered the applicants’ claims for damage “disproportionately high”. The Delegate of the Commission did not comment.
69. The Court considers that in the circumstances this aspect of the case is not yet ready for deci- sion. It is accordingly necessary to reserve it, due regard being had to the possibility of agreements being reached between the respondent State and the applicants.
B. COSTS AND EXPENSES
70. The applicants made no claims in respect of costs and expenses incurred in the domestic criminal proceedings. As regards the costs and expenses incurred in the proceedings before the European Commission and Court of Human Rights, the applicants’ claims were as follows: Mr xxx Xxxxxxxx and Mr Xxxxxx Xxxxxxxx (represented by Ms Xxxxxxxx): NLG 16,598.07 including value-added tax; Mr Xxxxx Xxxxxxxx (represented by Mr 6M|crona): NLG 30,446.43 including value-added tax; Mr Xxxxxxxxxx (represented by Mr Xxxxxx): NLG 11,905 including value-added tax.
The Government and the Delegate of the Commission did not comment on these claims.
71. The Court notes that Mr xxx Xxxxxxxx, Mr Xxxxx Xxxxxxxx and Mr Xxxxxx Xxxxxxxx were granted legal aid by the Convention institutions.
72. The Court is satisfied that the costs and expenses claimed were actually and necessarily in- curred by the applicants in their attempts to obtain redress for the violation found. It also finds the sums claimed by the applicants Xxx Xxxxxxxx, Xxxxxx Xxxxxxxx and Xxxxxxxxxx reasonable as to quantum.
On the other hand, the claim of Mr Xxxxx Xxxxxxxx is disproportionate when compared with the claims of the other applicants. No explanation has been given for this discrepancy.
73. The Court awards Mr Xxxxxxxxxx the sum claimed. To Mr xxx Xxxxxxxx and Mr Xxxxxx Xxxxxxxx jointly it awards the sums claimed, less the amount paid to them by the Council of Europe by way of legal aid, namely 11,412 French francs (FRF).
Deciding on an equitable basis, the Court awards Mr Xxxxx Xxxxxxxx NLG 20,000 including value- added tax, less the amount paid to him by the Council of Europe by way of legal aid, namely FRF 11,436.
C. DEFAULT INTEREST
74. According to the information available to the Court, the statutory rate of interest applicable in the Netherlands at the date of adoption of the present judgment is 5% per annum.
FOR THESE REASONS, THE COURT
1. Holds by six votes to three that there has been a violation of Article 6 para. 1 of the Conven- tion taken together with Article 6 para. 3 (d);
2. Holds unanimously that the respondent State is to pay, within three months, in respect of costs and expenses, (a) to the applicants Van Mechelen and Xxxxxx Xxxxxxxx jointly, 16,598 (sixteen thousand five hundred and ninety-eight) Netherlands guilders and 7 (seven) cents, less 11,412 (eleven thousand four hundred and twelve) French francs to be converted into Netherlands guilders at the rate of exchange applicable on the date of delivery of the present judgment; (b) to the applicant Xxxxx Xxxxxxxx, 20,000 (twenty thousand) Netherlands guild- ers, less 11,436 (eleven thousand four hundred and thirty-six) French francs to be converted into Netherlands guilders at the rate of exchange applicable on the date of delivery of the present judgment; (c) to the applicant Pruijmboom, 11,905 (eleven thousand nine hundred and five) Netherlands guilders; (d) that simple interest at an annual rate of 5% shall be pay- able from the expiry of the above-mentioned three months until settlement;
3. Rejects unanimously the remainder of the claim of the applicant Xxxxx Xxxxxxxx for xxxx- bursement of costs and expenses;
4. Holds unanimously that the question of the application of Article 50 of the Convention in re- spect of the applicants’ claims for damages is not ready for decision; and consequently,
(a) reserves the said question;
(b) invites the Government and the applicants to submit, within the forthcoming three months, their written observations on the matter and, in particular, to notify the Court of any agree- ment they may reach;
(c) reserves the further procedure and delegates to the President of the Chamber the power to fix the same if need be.
[omissis]
In accordance with Article 51 para. 2 of the Convention and Rule 55 para. 2 of Rules of Court B, the following separate opinions are annexed to this judgment:
(a) dissenting opinion of Mr Xxxxxxxx and Mr Xxxxxxxx;
(b) dissenting opinion of Mr xxx Xxxx. [omissis]
Corte europea dei diritti dell’uomo, sent. 5 dicembre 2002,
Craxi c. Italia (ric. n. 34896/97) (1)
[omissis]
EN FAIT
I. LES CIRCONSTANCES DE L’ESPÈCE
9. Le requérant était né en 1934. Il est décédé à Hammamet (Tunisie) le 19 janvier 2000. Par un courrier du 16 février 2000, sa veuve, Mme Xxxx Xxxxx Xxxxxxx Xxxxx, et ses deux enfants, Mme Xxxxxxxx Xxxxx et X. Xxxxxx io Craxi, ont indiqué qu’ils souhaitaient continuer la procédure devant la Cour.
A. LES POURSUITES ENGAGEES CONTRE LE REQUERANT
10. En décembre 1988, les groupes Eni et Montedison conclurent une convention prévoyant la constitution de la société Enimont dans le but de développer des activités dans le secteur de la chi- mie. La conclusion de cet accord fut précédée d’une série de rencontres des représentants des deux sociétés avec des représentants des grands partis politiques.
11. Par la suite, le parquet de Milan eut connaissance de graves irrégularités, intervenues lors des tractations, qui avaient été indûment favorables à la société Montedison, et préjudiciables aux inté- rêts de la société publique Eni.
12. En 1992, le parquet de Milan inculpa de nombreuses personnes, dont le requérant, du chef de faux en écritures comptables, financement illégal de partis politiques, corruption, concussion et re- cel, toutes infractions commises en particulier à l’occasion de la cession de la participation de la socié té Montedison à la société Enimont en novembre 1990 et lors des élections législatives de 1992.
13. Faisant droit à une demande du parquet, le juge des investigations préliminaires de Milan dé- cida de poursuivre d’abord l’un des accusés, M. Xxxxxx Xxxxxx, dans une procédure séparée. Le procès suscita beaucoup d’intérêt dans le public. Lors des audiences qui se tinrent de septembre 1993 à avril 1994, le tribunal de Milan entendit de nombreux témoins. Le 17 décembre 1993, le re- quérant fut entendu. Comme beaucoup d’autres par la suite, cette audience fut retransmise par la radio et la télévision et fit l’objet d’articles de presse dans le monde entier.
14. Le 23 avril 1994, X. Xxxxxx fut condamné à huit ans d’emprisonnement et à une amende de 16 000 000 lires italiennes (8 263 euros) pour faux en écritures comptables, infractions à la législa- tion sur le financement des partis politiques et appropriation indue. Il fut reconnu coupable, entre autres, d’avoir versé la somme d’au moins 3 409 000 000 lires (environ 1 760 601 euros) au requé- rant.
15. Entre-temps, de janvier à octobre 1993, le parquet de Milan avait délivré au requérant vingt- six notifications des poursuites (avvisi di garanzia ) dirigées contre lui, notamment pour corruption, concussion, recel et infractions à la législation sur le financement des partis politiques. Les 10 mai et 10 septembre 1993 et le 7 mai 1994, le parquet de Rome délivra également des avis de poursui- tes à l’encontre du requérant pour concussion, infractions à la législation sur le financement des partis politiques, corruption et abus d’autorité.
(1) Testo, disponibile esclusivamente in francese, tratto dalla banca dati Hudoc - xxxx://xxxxxx.xxxx.xxx.xxx.
16. Le déclenchement des poursuites à l’encontre du requérant et d’autres personnes du monde politique, économique et institutionnel continua à faire l’objet de l’attention des médias.
17. Le requérant fut renvoyé en jugement devant le tribunal de Milan dans six procédures diffé- rentes, à savoir les affaires Eni-Sai, Banco Ambrosiano, Enimont, Metropolitana Milanese, Cariplo et Enel.
18. Le 9 novembre 1994, l’avocat du requérant observa que la plupart des dates des audiences fixées dans les différentes procédures engagées contre son client coïncidaient, et que les procédures étaient conduites avec une célérité tout à fait inhabituelle. De ce fait, il demanda au président du tribunal de Milan d’organiser les différentes procédures de façon à respecter les droits de la dé- fense.
19. Lors d’un entretien qui eut lieu le 10 janvier 1995, le premier président de la cour d’appel de Xxxxx informa le défenseur du requérant qu’il n’était pas en mesure de régler ce problème lui- même, mais que la question de l’organisation des débats avait été soumise aux présidents des diffé- rentes sections du tribunal saisies des procédures en cause.
20. Le tribunal de Milan rendit les jugements suivants :
– le 29 juillet 1994, dans l’affaire Banco Ambrosiano, un jugement condamnant le requérant à huit ans et six mois d’emprisonnement pour banqueroute frauduleuse ;
– le 6 décembre 1994, dans l’affaire Eni-sai, un jugement condamnant le requérant à cinq ans et six mois d’emprisonnement pour corruption ;
– le 27 octobre 1995, dans l’affaire Enimont, un jugement condamnant le requérant à quatre ans d’emprisonnement pour faux en écritures comptables, infractions à la législation sur le financement des partis politiques et appropriation indue ;
– le 16 avril 1996, dans l’affaire Metropolitana Milanese, un jugement condamnant le requérant à huit ans et trois mois d’emprisonnement et à une amende de 150 000 000 lires italiennes (environ 77 468 euros) pour corruption ;
– le 26 avril 1996, dans l’affaire Xxxxxxx, un jugement acquittant le requérant de l’accusation de re- cel.
B. LES PROCES DE PREMIERE ET DEUXIEME INSTANCE CONCERNANT L’AFFAIRE XXX-XXX
21. Dans le cadre de l’affaire Eni-sai, à une date non précisée, le parquet de Milan demanda le renvoi en jugement du requérant, qui était accusé de corruption. Selon la thèse du parquet, le requé- rant aurait, en coopération avec ses coïnculpés, influencé et favorisé l’adoption d’un projet de xxxx- treprise (joint venture) entre trois sociétés (dont les sociétés Eni et Sai) appartenant au secteur des assurances. Afin de conclure cet accord, les accusés auraient illégalement versé aux fonctionnaires publics et aux dirigeants des sociétés susmentionnées la somme de 17 milliards de lires ita liennes (environ 8 779 767 euros), avec la promesse d’un versement ultérieur de 3 à 7 milliards de lires (respectivement environ 1 549 370 et 3 615 198 euros). Le requérant lui-même et l’un de ses coïn- culpés étaient considérés comme les instigateurs du projet et également comme les destinataires des sommes en cause.
22. Au cours de l’instruction, certains coïnculpés du requérant, notamment MM. Cusani, Ligres- ti, Xxxxxx et Rapisarda furent interrogés. Un autre coïnculpé, M. Cagliari, qui était incarcéré à la prison de Milan et avait été interrogé le 16 juillet 1993, mit fin à ses jours le 20 juillet 1993, quatre jours après sa déposition.
23. L’audience préliminaire eut lieu le 24 janvier 1994.
24. Par une ordonnance du 27 janvier 1994, le juge des investigations préliminaires renvoya le requérant et neuf autres personnes en jugement devant le tribunal de Milan. Par la suite, deux autres personnes firent l’objet de poursuites pénales dans cette affaire.
25. La première audience devant le tribunal de Milan fut fixée au 29 mars 1994.
26. Lors de cette audience, l’avocat du requérant présenta une copie d’un certificat médical éta- bli en Tunisie attestant que le requérant, atteint de diabète et souffrant d’une pathologie cardio- vasculaire, était hospitalisé à Tunis. Il attira également l’attention du tribunal sur le fait que la sécu-
rité personnelle du requérant aurait été en danger à Milan, comme le montraient un rapport établi par un agent de police et une agression dont le requérant avait fait l’objet lors de sa participation à l’audience dans le cadre d’une autre procédure judiciaire. Invoquant un empêchement légitime et absolu de son client à comparaître, l’avocat demanda l’ajournement des débats.
27. Le tribunal estima cependant que ces circonstances ne justifiaient pas l’absence du requérant et le déclara défaillant. Il se référa, en particulier, à une note de la Préfecture dont il ressortait au- cun danger concret et actuel ne menaçait l’intégrité physique du requérant.
28. Le 5 mai 1994, le requérant quitta l’Italie pour la Tunisie. Après une courte visite en France, le 16 mai 1994, il s’établit définitivement en Tunisie. Il ne retourna plus en Italie jusqu’à son décès, survenu le 19 janvier 2000 à Hammamet (Tunisie). Le 17 mai 1994, soit après le départ du requé- rant, la Préfecture de Xxxxx informa ses avocats que leur client faisait l’objet d’une mesure de pré- caution, à savoir l’interdiction de quitter le territoire italien.
29. Cinquante-cinq autres audiences eurent lieu entre avril et décembre 1994. Lors des audie n- ces, le tribunal autorisa la lecture des déclarations faites le 16 juillet 1993 par M. Cagliari au repré- sentant du parquet, selon lesquelles le requérant était l’un des principaux hommes politiques à avoir approuvé le projet de coentreprise.
30. Les coïnculpés, MM. Xxxxxx, Xxxxxxxx et Xxxxxx, ainsi qu’une personne accusée dans une procédure connexe, X. Xxxxxx, déclarèrent se prévaloir de leur droit de garder le silence. De ce fait, en vertu de l’article 000 xx xxxx xx xxxxxxxxx xxxxxx (xx-xxxxx, xx « CPP »), tel qu’en vigueur à l’époque des faits, le tribunal autorisa la lecture des déclarations qu’ils avaient faites au cours des investigations préliminaires. Ces déclarations, qui mettaient en cause la responsabilité du requérant, furent par conséquent jointes au dossier du juge (fascicolo per il dibattimento ) et utilisées pour la décision sur le bien-fondé de l’accusation portée contre le requérant. Celui-ci ne souleva aucune objection à cet égard.
31. MM. Xxxxxxxxx et Xxxxxxxx, accusés dans une procédure connexe, acceptèrent de répondre aux questions et furent interrogés par les parties aux cours des audiences des 25 mai, 1er juin et 13 octobre 1994.
32. Les procès-verbaux des interrogatoires d’un autre accusé dans une procédure connexe, X. Xxxxxx Xxxxxxxxx, furent joints au dossier du juge car cette personne, malgré les recherches entamées en Italie et en Suisse, était devenue introuvable.
33. La production des moyens des preuves se termina le 18 octobre 1994. A cette occasion, le requérant ne s’opposa pas à l’utilisation des déclarations des personnes qu’il n’avait pas pu interro- ger. Les audiences suivantes furent consacrées aux plaidoiries selon un calendrier accepté par tou- tes les parties.
34. Par un jugement du 6 décembre 1994, dont le texte fut déposé au greffe le 7 avril 1995, le tribunal de Milan condamna le requérant par défaut à cinq ans et six mois d’emprisonnement.
35. Le requérant, ses coïnculpés et le parquet interjetèrent appel de ce jugement devant la cour d’appel de Xxxxx. Le 20 décembre 1995, le requérant présenta les moyens à l’appui de son appel. Il contesta, en particulier, l’utilisation des procès-verbaux des déclarations des témoins qu’il n’avait pas pu interroger.
36. Par un arrêt du 2 mai 1996, dont le texte fut déposé au greffe le 20 mai 1996, la cour d’appel confirma le jugement rendu à l’encontre du requérant par le tribunal de Milan.
C. LA PROCEDURE EN CASSATION CONCERNANT L’AFFAIRE ENI-SAI
37. Le parquet, le requérant et dix de ses coïnculpés se pourvurent en cassation.
38. Le requérant contesta l’utilisation des déclarations faites soit au cours des investigations pré- liminaires, soit dans le cadre d’autres procédures connexes, par des témoins qu’il n’avait pas eu l’occasion d’interroger ou de faire interroger. Il se plaignit en outre de la déclaration de défaillance et des obstacles que les nombreuses procédures engagées simultanément contre lui avaient posés pour la préparation de sa défense. Invoquant entre autres l’article 3 de la Convention, le requérant soutenait également que les déclarations de M. Cagliari ne pouvaient pas être utilisées car elles
avaient été extorquées sous la menace de proroger la détention provisoire du témoin. Par ailleurs, elles n’étaient ni précises ni crédible s et étaient démenties par d’autres éléments.
39. Le requérant contestait, enfin, la lecture des déclarations de X. Xxxxxx Xxxxxxxxx, qui avait été considéré comme introuvable au cours du procès de première instance. Il alléguait en partic ulier que, durant cette xxxx xxxxxxx, xx xxxxxx xxxxx xxx xxxxxxxxx x Xxxxx.
00. Par un arrêt du 12 novembre 1996, dont le texte fut déposé au greffe le 24 mars 1997, la Cour de cassation, estimant que la cour d’appel avait motivé de façon logique et correcte tous les points controversés, débouta le requérant de son pourvoi.
41. La Cour de cassation nota que la condamnation du requérant ne se fondait pas exclusivement sur les déclarations faites par X. Xxxxxxxx lors de son dernier interrogatoire, comme l’intéressé le prétendait. Au contraire, les déclarations en question étaient corroborées par les affirmations de MM. Ligresti, Molino et Cusani. Ces quatre témoignages avaient été évalués dans leur ensemble, comme le voulait l’article 192 § 3 du CPP, et constituaient la base légale de la condamnation. Les déclarations de M. Cagliari avaient par ailleurs été régulièrement versées au dossier en application de l’article 512 du CPP, aux termes duquel on pouvait donner lecture des témoignages dont la réité- ration était devenue impossible.
42. La Cour de cassation estima qu’elle n’était pas compétente pour se prononcer sur la légalité des mesures de précaution appliquées à M. Cagliari, cette évaluation étant réservée à d’autres orga- nes judiciaires. Par ailleurs, au-delà des affirmations du requérant, aucun élément objectif ne dé- montrait que les mesures en question avaient été appliquées afin d’obtenir des aveux ou des accusa- tions contre des tiers.
43. Quant à la xxxxxxx xxxxxxxx xx xx xxxxxxxxxxx xx xxxxxxxxxxx, les juridictions du fond avaient correctement estimé qu’aucune pathologie n’empêchait le requérant de se rendre en Italie et de par- ticiper aux débats, que les conditions de sécurité étaient remplies et que l’agression prétendument subie lors d’une autre procédure – qui par ailleurs n’avait pas eu lieu selon les modalités exposées par le requérant – ne constituait pas un empêchement légitime absolu à comparaître.
44. Pour ce qui était de la violation des droits de défense dans le chef du requérant de par la te- nue simultanée de cinq procédures dirigées contre lui, cette allégation soulevait des questions sous l’angle de la Convention et du droit interne, mais n’était pas suffisamment étayés, le requérant ayant omis d’indiquer en quoi les dispositions internes pertinentes étaient incompatibles avec la Convention. Par ailleurs, la Cour de cassation venait de constater que la procédure contre le requé- rant s’était déroulée conformément au droit italien en vigueur. De toute manière, on ne pouvait prendre en considération des moyens du pourvoi fondés sur une prétendue violation de dispositions de la Convention qui, ayant comme en l’espèce contenu général, n’étaient pas directement applic a- bles.
45. En ce qui concernait, enfin, la lecture des déclarations de X. Xxxxxx Xxxxxxxxx, la Cour de cassation observa que la constatation que ce dernier était introuvable s’analysait en une simple question de fait, tranchée par les juridictions compétentes sur la base des documents pertinents et disponibles.
D. LES DATES DES AUDIENCES FIXEES DANS LES DIFFERENTES PROCEDURES PENALES CONTRE LE REQUERANT
46. Il ressort du dossier que les audiences dans les affaires contre le requérant fixées jusqu’au prononcé du jugement rendu le 6 décembre 1994 par le tribunal de Milan dans l’affaire Eni-Sai se tinrent aux dates suivantes : les 3 octobre 1993 (Enimont), 24 et 27 janvier 1994, 29 mars 1994, 7, 12, 13, 14 et 18 avril 1994 (Eni-Sai), 19 avril 1994 (Metropolitana Milanese), 27 et 29 avril 1994, 4 et 5 mai 1994 (Eni-Sai), 9 mai 1994 (Banco Ambrosia no), 10, 11, 13, 16 et 17 mai 1994 (Eni-Sai), 24 mai 1994 (Enimont), 25 mai 1994 (Eni-Sai), 26 mai 1994 (Metropolitana Milanese), 1er, 2, 3 et 4 juin 1994 (Eni-Sai), 6 juin 1994 (Cariplo), 7, 9 et 10 juin 1994 (Eni-Sai), 16 juin 1994 (Banco Ambrosiano), 17 juin 1994 (Cariplo), 20 juin 1994 (Banco Ambrosiano), 21, 23 et 24 juin 1994 (Eni-Sai), 25 juin 1994 (Banco Ambrosiano), 27 juin 1994 (Banco Ambrosiano et Eni-Sai), 28 juin 1994 (Eni-Sai), 29 juin 1994 (Banco Ambrosiano), 30 juin 1994 (Banco Ambrosiano et Eni-Sai),
1er et 2 juillet 1994 (Banco Ambrosiano), 5 juillet 1994 (Enimont), 6 juillet 1994 (Eni-Sai et Eni-
mont), 7 et 8 juillet 1994 (Eni-Sai), 9 juillet 1994 (Cariplo), 11 juillet 1994 (Banco Ambrosiano),
12 et 13 juillet 1994 (Enimont), 14 et 15 juillet 1994 (Banco Ambrosiano), 19 et 20 juillet 1994
(Enimont), 21 juillet 1994 (Banco Ambrosiano et Enimont), 22, 25, 28 et 29 juillet 1994 (Banco
Ambrosiano), 20 septembre 1994 (Metropolitana Milanese), 21 septembre 1994 (Enimont), 22 sep-
tembre 1994 (Eni-Sa i), 23, 27, 28 et 30 septembre 1994, 3, 4 et 5 octobre 1994 (Enimont), 7 octo-
bre 1994 (Enimont et Metropolitana Milanese), 10 octobre 1994 (Eni-Sai), 11 octobre 1994 (Eni-
mont et Xxx-Xxx), 12 octobre 1994 (Eni-Sai et Enimont), 13 octobre 1994 (Eni-Sai), 14 octobre
1994 (Enimont), 18 et 19 octobre 1994 (Eni-Sai et Enimont), 20 octobre 1994 (Eni-Sai), 21 octobre
1994 (Xxx-Xxx, Enimont et Cariplo), 25 octobre 1994 (Enimont), 26 octobre 1994 (Enimont et Me-
tropolitana Milanese), 28 octobre 1994 et 2 novembre 1994 (Enimont), 3 novembre 1994 (Eni-Sai),
4 novembre 1994 (Enimont et Cariplo), 8 et 9 novembre 1994 (Xxx-Xxx et Enimont), 10 novembre
1994 (Eni-Sai), 11 novembre 1994 (Eni-Sai et Enimont), 12 novembre 1994 (Eni-Sai), 14, 15 et 16
novembre 1994 (Xxx-Xxx et Enimont), 18 novembre 1994 (Enimont et Metropolitana Milanese), 22
novembre 1994 (Eni-Sai et Enimont), 23 novembre 1994 (Enimont et Cariplo), 24 novembre 1994
(Xxx-Xxx), 25 novembre 1994 (Enimont), 28 novembre 1994 (Eni-Sai), 29 novembre 1994 (Eni-
mont), 30 novembre 1994 (Eni-Sai et Enimont), 1er décembre 1994 (Eni-Sai), 5 et 6 décembre 1994 (Eni-Sai et Enimont).
47. En ce qui concerne les procédures de première instance dans les affaires susmentionnées, le requérant était représenté par des avocats de son choix. En particulier, dans le procès Metropolitana Milanese, il était assisté par Mes Xxxxxxxx Xx Xxxxxxx et Xxxxxxxx Xxxxx et, dans les procès Xxx- xxxx, Banco Ambrosiano, Cariplo et Xxx-xxx, par Mes Xxxxxxxx Xx Xxxxxxx et Xxxxxx Xxxxx.
48. Un autre avocat, Me Xxxxxxxx Xxxxx, s’associa à la défense du requérant dans toutes les af- faires en question.
II. LE DROIT ET LA PRATIQUE INTERNES PERTINENTS
49. L’article 512 du CPP permet d’utiliser pour la décision les actes accomplis par la xxxxxx xxxx- ciaire, par le représentant du parquet et par le juge des investigations préliminaires lorsque, à la suite de faits ou circonstances imprévisibles, leur réitération est devenue impossible. L’article 238
§ 3 du CPP précise qu’on peut toujours produire les documents relatifs à des actes qui, en raison de faits survenus après leur accomplissement, ne peuvent plus être répétés.
50. La lecture des déclarations émises par un coïnculpé ou par une personne accusée dans une procédure connexe était réglementée par l’article 513 du CPP. Du fait qu’elles avaient été lues, ces déclarations étaient jointes au dossier du juge et pouvaient être utilisées pour décider du bien-fondé de l’accusation.
51. Telle qu’en vigueur à l’époque du procès Eni-sai, cette disposition se lisait ainsi :
« 1. Si l’accusé est contumax ou absent ou bien s’il refuse de répondre aux questions, le juge or- donne, à la demande de l’une des parties, qu’on donne lecture des procès-verbaux des déclarations faites par l’accusé au représentant du parquet, ou au juge au cours des investigations prélimina ires ou pendant l’audience préliminaire.
Si les déclarations émanent des personnes indiquées à l’article 210 [il s’agit des personnes accusées dans une procédure connexe], le juge, à la demande de l’une des partie s, ordonne, selon les cas, de conduire à l’audience la personne ayant fait les déclarations ou de l’examiner à domicile ou [au moyen d’une] commission rogatoire internationale. S’il n’est pas possible d’obtenir la présence de la personne ayant fait les déclarations, le juge, après avoir entendu les parties, ordonne la lecture des procès-verbaux contenant lesdites déclarations ».
Par un arrêt n° 254 du 3 juin 1992, la Cour constitutionnelle a déclaré l’article 513 § 2 inconstitu- tionnel dans la mesure où il ne prévoyait pas que « le juge, après avoir entendu les parties, ordonne la lecture des procès-verbaux des déclarations (...) faites par les personnes indiquées à l’article 210, lorsque celles-ci se sont prévalues de leur faculté de garder le silence ».
52. Après le prononcé de l’arrêt de la Cour de cassation dans l’affaire Xxx-xxx, xx xxx xx 000 xx 0 xxxx 0000 (xxxxxx en vigueur le 12 août 1997) a modifié l’article 513, prévoyant que les déclara-
tions faites avant les débats par le témoin à charge coïnculpé ne pouvaient être utilisées que si le principe du contradictoire avait été respecté ou, à défaut, si l’intéressé avait donné son accord.
53. Cependant, la Cour constitutionnelle a déclaré cette loi inconstitutionnelle dans la mesure où elle ne prévoyait pas la possibilité d’utiliser les procès-verbaux des déclarations faites au cours de l’instruction par un coïnculpé, lorsque celui-ci refusait de témoigner et que l’accusé ne donnait pas son accord à la lecture des déclarations en question (voir l’arrêt no 361 du 26 octobre 1998). C’est à la suite de cet arrêt que le Parlement a décidé d’insérer le principe du procès équitable dans la Constitution elle -même. L’article 111 de la Constitution, dans sa nouvelle formulation et dans ses parties pertinentes, se lit ainsi: « (...) Dans le cadre du procès pénal, la loi garantit que la personne accusée d’une infraction (...) a la faculté, devant le juge, d’interroger ou de faire interroger toute personne formulant des déclarations à charge (...). La culpabilité de l’accusé ne peut pas être prou- vée sur la base de déclarations faites par une personne qui s’est toujours librement et volontaire- ment soustraite à une audition par l’accusé ou son défenseur. La loi réglemente les cas où un exa- men contradictoire des moyens de preuve n’a pas lieu, avec le consentement de l’accusé ou en rai- son d’une impossibilité objective dûment prouvée ou encore en raison d’un comportement illicite dûment prouvé ».
54. En ce qui concerne la force probante des déclarations émanant d’un coïnculpé ou d’une per- sonne accusée dans une procédure connexe, l’article 192 § 3 du CPP prévoit que celles-ci doivent être « évaluées avec les autres éléments de preuve qui en confirment la crédibilité » (Le dichiara- zioni rese dal coimputato nel medesimo reato o da persona imputata in un procedimento connesso (...) sono valutate unitamente agli altri elementi di prova che ne confermano l’attendibilità ).
EN DROIT
I. GRIEFS DÉCLARÉS RECEVABLES ET OBJET DU LITIGE
55. Dans sa xxxxxxxx xx 00 xxxxxxx 0000 xxx, xxx xxxxxx de sa jurisprudence, délimite l’objet du litige devant elle (voir Lamanna c. Autriche, arrêt du 10 juillet 2001, no 28923/95, § 23, non pu- bliée), la Cour a déclaré recevables les griefs du requérant tirés de l’iniquité de la procédure pénale Eni-Sai et concernant notamment l’impossibilité de disposer du temps et des facilités nécessaires à la préparation de la défense, la violation alléguée du droit d’interroger ou de faire interroger les té- moins à charge et l’influence que la campagne de presse aurait eue sur les juges appelés à se pro- noncer sur l’affaire. Partant, la Cour ne pourra pas prendre en considération les allégations formu- lées par le requérant après la recevabilité et qui ne se réfèrent pas aux griefs mentionnés ci-dessus.
56. Quant à ces derniers, le requérant invoque l’article 6 §§ 1, 2 et 3 b), c) et d) de la Convention qui, dans ses parties pertinentes, se lit ainsi: « 1. Toute personne a droit à ce que sa cause soit en- tendue équitablement (...) par un tribunal indépendant et impartial (...) qui décidera (...) du bien- fondé de toute accusation en matière pénale dirigée contre elle. (...) 2. Toute personne accusée d’une infraction est présumée innocente jusqu’à ce que sa culpabilité ait été légalement établie. 3. Tout accusé a droit notamment à : (...) b) disposer du temps et des facilités nécessaires à la prépa- ration de sa défense ; c) se défendre lui-même ou avoir l’assistance d’un défenseur de son choix (...) ; d) interroger ou faire interroger les témoins à charge et obtenir la convocation et l’interroga- tion des témoins à décharge dans les mêmes conditions que les témoins à charge. »
57. Etant donné que les exigences des paragraphes 2 et 3 représentent des aspects particuliers du droit à un procès équitable garanti par le paragraphe 1 de l’article 6, la Cour examinera séparément les différentes doléances du requérant sous l’angle de ces deux textes combinés (voir, parmi beau- coup d’autres, les arrêts Xxx Xxxxxxxxx c. Belgique [GC], no 26103/95, CEDH 1999-I, § 27, et Xxxxxxxxxx c. Autriche du 19 décembre 1989, série A no 168, pp. 31-32, § 62).
58. Cependant, en ce qui concerne la référence au paragraphe 3 c) de l’article 6, la Cour observe que les faits de la cause ne révèlent aucune apparence de violation de cette disposition. En effet, elle ne voit pas en quoi le requérant aurait été privé du droit à se défendre lui-même ou avoir l’as- sistance d’un défenseur de son choix. Elle analysera donc les griefs de l’intéressé uniquement sous
sous l’angle de l’article 6 §§ 1, 2 et 3 b) et d) de la Convention (voir, mutatis mutandis, Kwiatkows- ka c. Italie (déc.), no 52868/99, 30 novembre 2000, non publiée).
II. SUR LA VIOLATION ALLÉGUÉE DE L’ARTICLE 0 XX XX XXXXXXXXXX XX RAISON DU CARACTÈRE RAPPROCHÉ DES DATES DES AUDIENCES DANS LES DIFFÉRENTES PROCÉDURES ENGAGÉES CONTRE LE REQUÉRANT
1. Les arguments des parties
(a) Le requérant
59. Le requérant se plaint de ne pas avoir disposé du temps et des facilités nécessaires à la prépa- ration de sa défense en raison du caractère rapproché des dates des audiences, du nombre des au- diences fixées simultanément dans les différentes procédures et de la célérité avec laquelle ces pro- cédures ont été conduites. Il fait valoir, que pendant la période allant du 27 janvier au 5 juillet 1994, à savoir dans un laps de temps de cinq mois et une semaine, la défense était tenue de préparer les audiences dans cinq procédures. En outre, des audiences préliminaires ont été fixées dans les quatre affaires Banco Ambrosiano, Enimont, Cariplo et Metropolitana Milanese entre le 24 mai et le 17 juin 1994, c’est-à-dire dans un délai de 24 jours seulement. De plus, dans le cadre du procès Xxxxxxx, la cour d’appel de Xxxxx aurait lu la motivation de l’un de ses arrêts lors du prononcé du dispositif, obligeant ainsi la défense à rédiger ses moyens de pourvoi dans un délai de quinze jours. Le requérant soutient que la responsabilité d’une telle conduite des procédures incombe entière- ment au Gouvernement.
60. Le requérant allègue, que du 29 mars au 6 décembre 1994, période au cours de laquelle se sont déroulés les débats du procès Xxx-Xxx, de nombreuses autres procédures judiciaires lourdes étaient pendantes devant d’autres sections du tribunal de Milan, ce qui l’aurait empêché de suivre les débats et d’analyser soigneusement les milliers de pages de documents dont se composaient les dossiers du parquet et du juge. Il en va de même en ce qui concerne la procédure d’appel dans le procès Xxx-Xxx.
61. Le requérant rappelle qu’en Italie, les procédures judiciaires sont notoirement très longues, et soutient que la rapidité et la concentration des procès le concernant s’expliquent par la volonté de porter atteinte à son image politique.
62. Le requérant soutient que, s’il avait disposé de plus de temps, il aurait pu effectuer des en- quêtes dans les archives, auprès du Parlement italien et aux sièges des sociétés privées mises en cause afin de découvrir, notamment, à qui étaient destinées les sommes d’argent versées sur le compte bancaire étranger du Parti Socialiste italien (PSI), démontrant ainsi qu’il n’existait aucun « trésor personnel de Craxi », ce qui aurait affaibli les chefs d’accusation de corruption et de finan- cement illégal de partis politiques. Le requérant aurait, en outre, pu prouver qu’il n’avait jamais participé au projet de coentreprise entre les sociétés Eni et Sai, qu’il avait toujours été politique- ment favorable à la société publique et qu’il n’était nullement en état d’exercer la moindre in- fluence dans le secteur de la chimie, dominé par les dirigeants d’autres partis politiques.
(b) Le Gouvernement
63. Le Gouvernement soutient que le requérant a eu le temps nécessaire pour préparer sa dé- fense. Il observe en particulier que la première audience a été fixée au moins soixante jours après le renvoi en jugement et que le requérant, représenté par deux avocats qui avaient nommé deux autres avocats comme suppléants, avait eu connaissance des actes de la procédure après la demande de renvoi en jugement présentée par le parquet avant l’audience préliminaire. Il souligne en outre que le requérant avait approuvé le calendrier pour la présentation des plaidoiries devant le tribunal de Milan.
64. Par ailleurs, seules quatre audiences ont eu lieu en même temps que les audiences dans les autres procédures dirigées contre le requérant. Au moins un des deux avocats de ce dernier (ou son suppléant) a participé aux audiences dans la procédure Eni-Sai. Les deux avocats en question n’ont
jamais demandé de renvoi pour empêchement et il ne ressortirait pas du dossier qu’ils défendaient le requérant aussi dans les autres procédures pénales dont celui-ci a fait l’objet.
65. A la lumière de ce qui précède, le Gouvernement soutient que les autorités italiennes ont fait tout ce qui était en leur pouvoir pour concilier le droit du requérant à disposer des facilités néces- saires pour préparer sa défense avec l’exigence de trancher l’affaire « dans un délai raisonnable ».
2. L’appréciation de la Cour
66. La Cour rappelle tout d’abord que la présente requête a été déclarée recevable uniquement pour autant qu’xxxx xxxxx xxx x’xxxxxxxx xx xx xxxxxxxxx Eni-Sai (voir paragraphe 55 ci-dessus). Elle n’est donc pas appelée à se prononcer sur les difficultés rencontrées par le requérant dans la prépa- ration de sa défense dans le cadre des autres procédures judiciaires engagées à son encontre (no- tamment les affaires Banco Ambrosiano, Enimont, Cariplo et Metropolitana Milanese).
67. La Cour relève ensuite qu’après le 18 octobre 1994 et jusqu’à l’adoption d’un jugement sur le fond (6 décembre 1994), les audiences de la procédure de première instance dans le procès Eni- Sai ont été fixées selon un calendrier accepté par les avocats du requérant (voir paragraphe 33 ci- dessus). Ce dernier ne saurait donc se plaindre d’un déroulement pour lequel ses conseils ont ex- primé leur accord.
68. Il reste à établir si, pour la période antérieure, le caractère rapproché des dates des audie nces et la fixation simultanée d’autres audiences dans les différentes affaires pendantes contre le requé- rant ont porté atteinte au droit de celui-ci à disposer du temps et des facilités nécessaires à la prépa- ration de sa défense.
69. A cet égard, il convient de noter que les débats ont commencé le 29 mars 1994. Le recueil des moyens de preuve s’est terminé le 18 octobre 1994, après une pause du 8 juillet au 22 septem- bre pour les vacances judiciaires. Au cours de cette période d’activité d’un peu plus de quatre mois, se sont tenues trente-huit audiences concernant l’affaire Eni-Sai. Dans cette même période, de nombreuses audiences concernant les affaires Banco Ambrosiano, Enimont, Cariplo et Metropoli- tana Milanese ont eu lieu en même temps ou presque en même temps que celles de l’affaire Xxx- Xxx. En particulier, huit audiences ont eu lieu au total en avril, onze se sont tenues en mai, vingt et une en juin, vingt et une en juillet, sept du 20 au 30 septembre et treize du 1er au 18 octobre.
70. La Cour observe que le requérant ne s’est pas présenté à la première audience de l’affaire Eni-sai et que le 5 mai 1994, c’est-à-dire un peu plus d’un mois après le commencement de son procès, il a volontairement quitté l’Italie pour la Tunisie (voir paragraphes 26-28 ci-dessus), se soustrayant ainsi à la juridiction d’un Etat qui adhère au principe de la prééminence du droit et re- nonçant implicitement à son droit à comparaître à l’audience. Sa défense a dès lors été assurée par des avocats de son choix, Mes Xxxxxxxx Xx Xxxxxxx et Xxxxxx Xxxxx, auxquels s’est associé Me Xxxxxxxx Xxxxx (voir paragraphes 47 et 48 ci-dessus).
71. Il est vrai que ces derniers ont été contraints de prendre part, dans un court laps de temps, à un nombre très élevé d’audiences. Cependant, il ne ressort pas du dossier que la défense qu’ils ont assurée ait été défectueuse ou autrement dépourvue d’efficacité. Au contraire, les témoins à charge ayant accepté de déposer ont été interrogés lors des audiences publiques par les conseils du requé- rant, qui ont par ailleurs, dans les différentes phases du procès Xxx-xxx, présenté des arguments fac- tuels et juridiques pour contester la crédibilité des témoins accusant leur client.
72. De plus, la Cour relève qu’après la décision déclarant la présente requête recevable, Mes Xxxxxxxx Xx Xxxxxxx et Xxxxxxxx Xxxxx, qui représentent également le requérant dans la procédure devant les organes de la Convention, ont été invités à indiquer les raisons pour lesquelles ils avaient omis, avant le 9 novembre 1994 (et donc avant la fin de la période incriminée), d’attirer l’attention des autorités nationales sur les difficultés qu’ils rencontraient dans la préparation de la défense. Cependant, aucune explication pertinente n’a été fournie à la Cour sur ce point.
73. Par ailleurs, en ce qui concerne la procédure d’appel dans le cadre du procès Eni-sai, les conseils du requérant n’ont sig nalé aucun rapprochement important des dates des audiences suscep- tible xx xxxxxx xxxxxxxx xxx xxxxxx xx xx xxxxxxx.
00. Dans ces circonstances, la Cour ne saurait conclure que les modalités temporelles du dérou- lement dans le temps de la procédure Eni-Sai ont enfreint l’article 6 de la Convention.
Partant, il n’y a pas eu violation de cette disposition à cet égard.
III. SUR LA VIOLATION ALLÉGUÉE DE L’ARTICLE 6 DE LA CONVENTION EN RAISON DE L’IMPOSSIBILITÉ D’INTERROGER OU DE FAIRE INTERROGER LES TÉMOINS À CHARGE
1. Les arguments des parties
(a) Le requérant
75. Le requérant allègue avoir fait l’objet d’une « utilisation répressive » de la preuve dans le procès pénal et avance que, dans l’affaire Xxx-Xxx, les seules preuves à sa charge étaient les déclara- tions faites par des témoins ou des coïnculpés au cours des investigations préliminaires ou dans le cadre d’autres procédures connexes, et donc en l’absence de ses avocats. Il se réfère, en partic ulier, aux dépositions de MM. Cagliari, Xxxxxxxx, Xxxxxx et Xxxxxx, et affirme que ces dernières n’au- raient pas dû être utilisées contre lui parce qu’elles n’avaient été ni spécifiquement indiquées dans la décision ordonnant leur production, ni publiquement lues à l’audience, comme le veulent les dis- positions pertinentes du CPP. Le requérant considère cependant que, compte tenu du libellé de l’article 513 du CPP, toute objection au versement au dossier des procès-verbaux des déclarations en question formulée en première instance aurait été vouée à l’échec. Il souligne cependant qu’il a soulevé la question de la violation de son droit à interroger les témoins à charge dans ses moyens d’appel et de cassation.
76. Le requérant se plaint également du fait que les déclarations de M. Cagliari – qui selon ses dires seraient fausses, contradictoires et non corroborées par d’autres éléments, comme le veut l’article 192 § 3 du CPP – ont été utilisées comme preuve contre lui, ce qui mettrait en cause la lé- gitimité de la procédure dans son ensemble. En effet, dans un cas pareil, le CPP permet de verser cet élément au dossier sans tenir compte du fait que le suicide du témoin empêche la défense de lui poser des questions lors des débats publics. Par ailleurs, MM. Cagliari et Xxxxxx auraient été obli- gés de l’accuser sous la menace d’une privation de liberté longue et pénible, et donc sous la menace de la torture ou de peines inhumaines ou dégradantes, ce qui serait incompatible avec les articles 3 et 5 § 1 de la Convention.
77. Le requérant soutient enfin que la déclaration selon laquelle X. Xxxxxx Xxxxxxxxx était devenu introuvable était fausse, la personne en question étant au contraire à la disposition des autorités ju- diciaires qui, du 28 mars 1992 au 27 septembre 1994, l’auraient interrogé à plusieurs reprises. Cette circonstance aurait violé le droit du requérant à « obtenir la convocation et l’interrogation des té- moins à décharge ».
(b) Le Gouvernement
78. Le Gouvernement observe d’emblée que le requérant ne s’est pas opposé à la lecture des dé- clarations faites par ses coïnculpés. Il soutient ensuite qu’en principe, dans le système juridique ita- lien, tout accusé a le droit d’interroger les témoins à charge. Cependant, afin de permettre aux juges d’établir les faits de la cause, il est possible, dans certains cas et sous réserve du respect des condi- tions fixées par la loi, d’utiliser pour la décision des éléments qui ont été recueillis dans le cadre des investigations préliminaires.
79. Dans la présente affaire, les personnes mises en cause par le requérant n’étaient pas des té- moins, mais des coïnculpés, qui avaient à ce titre le droit de garder le silence. Or, comme la Cour elle -même l’a reconnu dans l’affaire Xxxxxxxx c. Royaume-Uni (voir l’arrêt du 17 décembre 1996, Recueil des arrêts et décisions 1996-VI, p. 2064, § 68), « même si l’article 6 de la Convention ne le mentionne pas expressément, le droit de se taire et – l’une de ses composantes – le droit de ne pas contribuer à sa propre incrimination sont des normes internationales généralement reconnues qui sont au cœur de la notion de procès équitable consacrée par ledit article ».
80. Le Gouvernement souligne que trois intérêts sont en cause : celui du coïnculpé à garder le si- lence, celui de l’accusé à interroger le témoin coïnculpé et celui de l’autorité judiciaire à ne pas perdre les preuves recueillies pendant l’enquête. La question est si complexe que les dispositions régissant l’utilisation des déclarations d’un témoin à charge qui est en même temps coïnculpé ont été à plusieurs reprises examinées par la Cour constitutionnelle italienne et ont subi des modific a- tions. En particulier, dans sa jurisprudence, la Cour constitutionnelle a rappelé l’existence du prin- cipe de « non-perte » (non dispersione) des moyens de preuve recueillis pendant l’instruction.
81. Le Gouvernement fait observer enfin que, le 10 septembre 1997, le Comité des Ministres du Conseil de l’Europe a adopté la Recommandation R (97) 13, portant sur l’intimidation des témoins et les droits de la défense, qui suggère aux Etats d’utiliser « les dépositions faites devant une autori- té judiciaire au cours de l’audition préliminaire comme ayant la valeur d’un témoignage devant le tribunal, lorsque la comparution du témoin devant le tribunal ne saurait être envisagée ou lorsque celle -ci pourrait entraîner une menace grave et sérieuse pour sa vie ou sa sécurité personnelle ou celle de ses proches ».
82. Le Gouvernement rappelle également qu’après la fin du procès du requérant, la question de l’utilisation des dépositions remontant à la phase des investigations préliminaires a fait l’objet d’une profonde réflexion, qui a conduit à l’adoption xx xx xxx xx 000 xx 0 xxxx 0000 (xxxx paragra- phe 52 ci-dessus).
2. L’appréciation de la Cour
83. La Cour note d’emblée que les déclarations de X. Xxxxxx Xxxxxxxxx n’ont pas contribué à fon- der la condamnation du requérant et que, partant, l’impossibilité de le convoquer n’a pas violé le droit de l’intéressé à interroger ou faire interroger les témoins à charge (voir, mutatis mutandis, Xxxxxxxxxx c. Xxxxxxxx, xxxxx xxxxxxx, x. 00, §§ 00-00, ainsi que Raniolo c. Italie (déc.), no 62676/00 21 mars 2002, non publiée). Par ailleurs, dans la mesure où le requérant affirme que X. Xxxxxx Xxxxxxxxx était un témoin à décharge, la Cour relève que X. Xxxxx n’a pas indiqué précisé- ment les circonstances sur lesquelles celui-ci aurait dû témoigner. Il n’a donc pas démontré que la convocation de ce témoin était nécessaire à la recherche de la vérité et que le refus de l’interroger a porté atteinte aux droits de la défense (voir Xxxxxxxx c. Belgique, arrêt du 7 juillet 1989, série A no 158, p. 31, § 89, et R.M.M., F.P. et X.X. x. Italie (déc.), no 61692/00, 11 janvier 2001, non publiée). Partant, la Cour n’estime pas devoir se prononcer sur la question de savoir si ce témoin était effec- tivement introuvable, comme l’affirment les juridictions italiennes ou s’il pouvait aisément être lo- xxxxxx, comme le soutient le requérant.
84. Pour ce qui est de l’impossibilité d’interroger MM. Cagliari, Xxxxxxxx, Xxxxxx et Xxxxxx, la Cour rappelle que la recevabilité des preuves relève au premier chef des règles du droit interne et qu’il revient en principe aux juridictions nationales d’apprécier les éléments recueillis par elles. La Cour n’est donc pas appelée à se prononcer sur le point de savoir si les déclarations des témoins ayant proféré des accusations auraient dû être écartées ou étaient suffisamment précises et crédi- bles. En effet, la tâche que la Convention lui a assignée ne consiste pas à se prononcer sur le point de savoir si des dépositions de témoins ont été à bon droit admises comme preuves, ni si elles étaient suffisantes pour fonder une condamnation, mais à rechercher si la procédure considérée dans son ensemble, y compris le mode de présentation des moyens de preuve, a revêtu un caractère équitable (voir, entre autres, Doorson c. Pays-Bas, arrêt du 26 mars 1996, Recueil 1996-II, p. 470,
§ 67, et Van Mechelen et autres c. Pays-Bas, arrêt du 23 avril 1997, Recueil 1997-III, p. 711, § 50).
85. Or les éléments de preuve doivent en principe être produits devant l’accusé en audience pu- blique, en vue d’un débat contradictoire. Ce principe ne va pas sans exceptions, mais on ne peut les accepter que sous réserve des droits de la défense ; en règle générale, les paragraphes 1 et 3 d) de l’article 6 commandent d’accorder à l’accusé une occasion adéquate et suffisante de contester un témoignage à charge et d’en interroger l’auteur, au moment de la déposition ou plus tard (Lüdi c. Suisse, arrêt du 15 juin 1992, série A no 238, p. 21, § 47 ; A.M. c. Italie, arrêt du 14 décembre 1999, ECHR 1999-IX, p. 55, § 25 ; P.S. c. Allemagne, arrêt du 20 décembre 2001, no 33900/96, § 21, non publié).
86. En effet, dans certaines circonstances, il peut s’avérer nécessaire, pour les autorités judicia i- res, d’avoir recours à des dépositions remontant à la phase de l’instruction préparatoire, notamment lorsque l’impossibilité de les réitérer est due à des faits objectifs, telle la mort de leur auteur (voir, par exemple, Xxxxxxxxxxx et Xxxxxxxxxx c. Italie, arrêt du 7 août 1996, Recueil 1996-III, pp. 950- 951, § 52), ou lorsqu’il faut protéger le droit du témoin de garder le silence sur des circonstances qui pourraient entraîner sa responsabilité pénale. Si l’accusé a eu une occasion adéquate et suffi- sante de contester pareilles dépositions, au moment où elles ont été formulées ou plus tard, leur uti- lisation ne se heurte pas en soi à l’article 6 §§ 1 et 3 d). Il s’ensuit, cependant, que les droits de la défense sont restreints de manière incompatible avec les garanties de l’article 6 lorsqu’une condamnation se fonde uniquement ou dans une mesure déterminante sur des dépositions émanant d’une personne que l’accusé n’a pu interroger ou faire interroger ni au stade de l’instruction ni pen- dant les débats (voir Xxxxx c. France, arrêt du 20 septembre 1993, série A no 261-C, pp. 56-57, §§ 43-44, Lucà c. Italie , arrêt du 27 février 2001, no 33354/96, § 40, non publié ; X.X. x. Xxxxxxxxx, xxxxx xxxxxxx, § 00).
87. La Cour relève ensuite que la possibilité d’utiliser pour la décision sur le bien-fondé des ac- cusations des déclarations prononcées avant les débats par des coïnculpés s’étant prévalus de la fa- culté de garder le silence ou par des personnes décédées avant de témoigner était prévue par le droit interne de l’Etat défendeur, tel qu’en vigueur à l’époque des faits, à savoir les articles 238, 512 et 513 du CPP (voir paragraphes 49-51 ci-dessus). Cependant, cette circonstance ne saurait priver l’inculpé du droit, que l’article 6 § 3 d) lui reconnaît, d’examiner ou de faire examiner de manière contradictoire tout élément de preuve substantiel à charge (voir, mutatis mutandis, Lucà c. Italie , arrêt précité, § 42).
88. En l’espèce, la Cour relève que, comme il ressort de l’arrêt de la Cour de cassation du 12 no- vembre 1996 (voir paragraphe 41 ci-dessus), les juridictions nationales ont condamné le requérant en se fondant exclusivement sur les déclarations prononcées avant le procès par les coïnculpés qui se sont abstenus de témoigner (MM. Xxxxxx, Xxxxxxxx et Xxxxxx) et par une personne décédée par la suite (M. Cagliari). Ni le requérant ni son défenseur n’ont eu, à aucun stade de la procédure, la pos- sibilité d’interroger ces personnes qui, ayant formulé des affirmations utilisées comme preuves par les juges italiens, doivent être considérées comme des « témoins » aux termes de l’article 6 § 3 d) de la Convention (S. N. c. Suède, arrêt du 2 juillet 2002, no 34209/96, § 45, non publié).
89. Dans ces conditions, on ne saurait conclure que le requérant a bénéficié d’une occasion adé- quate et suffisante de contester les déclarations qui ont constitué la base légale de sa condamnation.
90. Il reste à examiner si le requérant avait une possibilité effective de s’opposer à la lecture, et donc à l’utilisation, des déclarations de ses accusateurs et si, par conséquent, l’absence de toute ob- jection à cet égard pourrait amener à conclure que l’intéressé a renoncé à son droit d’interroger ou de faire interroger les témoins à charge.
91. A cet égard, la Cour rappelle qu’aux termes de sa jurisprudence, ni la lettre ni l’esprit de l’ar- ticle 6 §§ 1 et 3 d) de la Convention n’empêchent une personne xx xxxxxxxx xx xxx xxxxx xxx xxx xxxxxxxxx x xxxxxxxxxx xx xxxxxxx expresse ou tacite, mais pareille renonciation doit être non équivoque et ne se heurter à aucun intérêt public important (Xxxxxxxxx et Xxxxxxxxx c. Suède, arrêt du 21 février 1990, série A no 000-X, x. 00, § 00, xx Xxxxxxxxxxx x. Xxxxxx, décision précitée).
92. En l’espèce, il ressort du dossier que les avocats du requérant n’ont pas soule vé, pendant les débats devant le tribunal de Milan, d’exceptions visant à contester la légalité ou l’opportunité de verser au dossier les déclarations de MM. Cagliari, Cusani, Ligresti et Xxxxxx (voir paragraphes 30 et 33 ci-dessus).
93. Cependant, la Cour vient d’observer que l’adjonction au dossier de ces déclarations a été faite conformément au droit interne pertinent (voir paragraphes 49-51 et 88 ci-dessus), qui imposait au juge d’ordonner la lecture et le versement au dossier des déclarations en question lorsqu’elles ne pouvaient pas être répétées ou lorsque leur auteur s’était prévalu de la faculté de garder le silence. Xxxxxxx, la Cour estime qu’une éventuelle opposition du requérant aurait eu peu de chances de suc- cès, et conclut que le fait de ne pas avoir soulevé d’exception formelle lors des débats devant le tri- bunal de Milan ne saurait être interprété comme une renonciation tacite au droit d’interroger ou de faire interroger les témoins à charge. Cette conclusion est renforcée par la circonstance que, dans