Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23369/94

by Luigi SACRAMATI

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1995, the following members being present:

Present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 June 1993 by

Luigi SACRAMATI against Italy and registered on 1 February 1994 under

file No. 23369/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1950 in Terni,

worker by profession. He is currently detained in Rovigo.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

In connection with criminal proceedings against F.F., charged

with drug trafficking, the Bologna police obtained information that the

applicant and several other persons were also involved in drug

trafficking. Telephone tappings were subsequently carried out, and a

large quantity of heroin was seized. On the occasion of the search of

one of the accused's apartment, certain relevant documents were seized.

F.F. agreed with the police and the judicial authorities that he

would collaborate with a view to enabling them to prosecute his former

accomplices, amongst whom the applicant, in return for certain benefits

for himself (a reduction of sentence) and his family.

Pursuant to the Bologna Public Prosecutor's request, on

15 January 1990 the Bologna investigating judge issued a warrant of

arrest against the applicant, on charges of drug trafficking. The nine

charges listed in the seven-page long warrant of arrest related to

numerous acts presumably committed by the applicant together with eight

coaccused in the provinces of Ferrara, Verona, Rovigo, and Bologna,

between November 1982 and January 1989.

On 17 January 1990, the applicant was arrested by the Padua

police. On that occasion, he was notified a copy of the warrant of

arrest and was invited to appoint a lawyer for his defence, which he

did. He was then imprisoned in Bologna.

The applicant lodged an appeal ("richiesta di riesame") before

the Bologna Court against the warrant of arrest; this appeal was

rejected by decision of 29 January 1990.

On 9 July 1990, the applicant was committed for trial before the

Bologna Court together with 107 coaccused, on charges of drug

trafficking.

At the hearing of 9 May 1991, F.F. appeared before the court and

was interrogated by the Public Prosecutor and by the defence lawyers.

By judgment of 10 June 1991, the Bologna Court found the

applicant guilty of all charges and sentenced him to 22 years'

imprisonment.

The applicant lodged an appeal against this judgment. He

challenged the credibility of F.F., claiming that the latter had only

accused him in order to obtain benefits for himself and his family; he

further asked the reopening of the trial in order to hear certain

witnesses on his behalf.

By judgment of 10 June 1992, the Bologna Court of Appeal rejected

the applicant's request to reopen the trial, as it considered the

grounds for the request irrelevant; it acquitted the applicant in

relation to one of the charges for lack of evidence. It reexamined

F.F.'s statements and, proceeding from the substantial corroboration -

in particular the statements of several coaccused - came to the firm

conclusion that F.F. was totally reliable ("intrinsecamente

attendibile") and his testimony fully credible and consistent

("pienamente credibile", "coerente e mai contraddittoria"). It

subsequently confirmed the remainder of the judgment, and reduced the

sentence to 16 years and two months' imprisonment.

The applicant lodged an appeal on points of law against this

judgment, mainly challenging the assessment of evidence by the lower

court.

By judgment of 20 May 1993, filed in the Registry on

26 August 1993, the applicant's appeal on points of law was dismissed

by the Court of Cassation.

COMPLAINTS

1. The applicant complains of his conviction and sentence, and

claims that he has been denied a fair trial.

In particular, he maintains that he was not informed in detail

of the charges against him, that his conviction was mainly based on the

evidence of an accomplice, that the judges incorrectly assessed the

evidence before them and that they refused to hear certain witnesses

on his behalf.

He alleges a violation of Article 6 paras. 1 , 3 (a) and 3 (d)

of the Convention.

2. The applicant further complains of the length of his detention,

contrary to Article 5 para. 3 of the Convention.

THE LAW

1. The applicant complains of his conviction and sentence and also

of the proceedings concerned.

The Commission first recalls that, in accordance with Article 19

(Art. 19) of the Convention, its only task is to ensure the observance

of the obligations undertaken by the parties to the Convention. In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention. The Commission refers to its established case-law (cf.,

e.g., No. 13926/88, Dec. 4.10.90, D.R. 66 pp. 209, 225; No. 21283/93,

Dec. 5.4.94, D.R. 77-A pp. 81, 82 and 88).

It is true that in the present case the applicant complains also

that he was denied a fair hearing and in particular that he was not

informed in detail of the nature of the charges against him, that the

judges based themselves mainly on the testimony of an accomplice and

incorrectly assessed the evidence before them, and that he was refused

to have certain witnesses heard on his behalf.

Article 6 (Art. 6), in so far as relevant, reads:

"1. In the determination ... of any criminal charge against him,

everyone is entitled to a fair (...) hearing (...) by a (...)

tribunal (...).

3. Everyone charged with a criminal offence has the following

minimum rights: (...)

(a) to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against

him; (...)

(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".

Even assuming that the applicant, in accordance with Article 26

(Art. 26) of the Convention, has complied with the condition as to the

exhaustion of domestic remedies, namely that he had raised his

complaints either in form or in substance before the Court of Appeal

and the Court of Cassation, the Commission recalls that the

requirements of paragraph 3 of Article 6 (Art. 6-3) represent

particular aspects of the right to a fair trial guaranteed in paragraph

1. It will therefore examine the complaints from the point of view of

these two provisions taken together (see Eur. Court H. R., Lüdi

judgment of 15 June 1992, Series A, no. 238, p. 23, para. 43).

a) The applicant submits that he was not informed in detail about

the charges against him.

The Commission and the Court have stressed that Article 6 para.

3 (a) (Art. 6-3-a) of the Convention is of fundamental importance in

preparing the defence and that its scope must be understood in relation

to Article 6 para. 3 (b) (Art. 6-3-b), which guarantees everyone the

right to have adequate time and facilities for the preparation of his

defence and in the light of the more general right to a fair trial

secured by Article 6 para. 1 (Art. 6-1) of the Convention (cf. Gea

Catalan v. Spain, Comm. Report 30.11.93, para. 28, to be published in

Eur Court H.R., Series A no. 309).

The Commission recalls that pursuant to Article 6 para. 3 (a)

(Art. 6-3-a) of the Convention, the accused is entitled to be informed

of the cause of the accusation, i.e. the material facts alleged against

him which are at the basis of the accusation, and of the nature of the

accusation, i.e. the legal qualification of these material facts. The

"detailed" information referred to in this provision should contain the

material enabling the accused to prepare his defence, without however

necessarily mentioning the evidence on which the charges are based (No.

7628/76, dec. 9.5.77, D.R. 9 p. 173).

In the present case, the Commission observes that the applicant's

warrant of arrest was seven pages long, and that the nine charges

contained therein described the single episodes, the relevant period

of time and the place where they had supposedly taken place. Reference

was made to Articles 71, 74, 81, 110 and 118 of the Italian criminal

code, and the legal qualification of the facts was clearly indicated.

In the Commission's opinion, the applicant was thus sufficiently

informed of the accusations laid against him to prepare his defence.

b) The applicant further submits that the judges based themselves

mainly on the testimony of an accomplice, that the assessment of

evidence made throughout the proceedings was arbitrary and erroneous

and that he was refused the right to have certain witnesses heard on

his behalf.

The Commission recalls that the question of the admissibility of

evidence and of its probative value is primarily governed by the rules

of domestic law, and as a general rule it is for the national courts

and in particular the courts of first instance, to assess the evidence

before them, as well as the evidence which the accused seeks to adduce

(see Eur. Court H. R., Edwards judgment of 16 December 1992, Series A,

no. 247-B, pp. 34-35, para. 34; Windisch judgement of 27 September

1990, Series A no. 186, p. 10, para. 25).

The Commission's task in the present case is therefore not to

express a view as to whether the evidence against the applicant was

correctly admitted and assessed by the judges, but rather to ascertain

whether the proceedings considered as a whole, including the way in

which evidence was taken, were fair (see, Eur. Court H.R., Saïdi

judgment of 20 September 1993, Series A no. 261-C, p. 56 , para. 43).

In this context the Commission recalls that all the evidence must

normally be produced in the presence of the accused at a public hearing

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 3 (d) and 1 of Article 6 (Art. 6-3-d, 6-1)

require 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 of the proceedings (see the above

mentioned Lüdi judgment, loc. cit. p. 21, para. 47; Eur. Court H.R.,

Isgró judgment of 19 February 1991, Series A no. 194-A, p. 12, para.

34; Eur. Court H.R., Saïdi judgment, loc. cit., p. 56, para. 43).

The Commission points out that the use at the trial of evidence

obtained from an accomplice by granting him a reduction of sentence may

put in question the fairness of the hearing granted to an accused

person, and thus raise an issue under Article 6 para. 1 (Art. 6-1) of

the Convention (No. 7306/75, Dec. 6.10.76, D.R. 7, p. 115).

However, the Commission notes that in the present case the

applicant had every opportunity, through his lawyer, to put questions

directly to his former accomplice and to challenge his statements, thus

providing the judges with all information which was capable of casting

doubt on the witness' credibility. Moreover the Italian courts had

examined the evidence before them thoroughly, and had come to the

conclusion that the statements made by F.F. were convincing and

corroborated by other evidence, namely by numerous statements of the

applicant's other accomplices, but also by certain telephone tappings,

the seizure of a large quantity of heroin as well as documents found

in one of the accomplices' possession.

The Court of Cassation analyzed thoroughly and in detail all of

the applicant's complaints, addressing the issue of the assessment of

evidence by the lower courts and concluding that the latter had not

overstepped the limits of appreciation of evidence or established facts

in an arbitrary manner.

The Commission does not find these conclusions arbitrary or

otherwise unfair.

As regards the alleged refusal to hear certain witnesses, the

Commission recalls that it is normally for the national courts to

decide whether it is necessary or advisable to call a witness (see Eur.

Court H.R., Bricmont judgment of 7 July 1989, Series A no. 158, p. 31,

para. 89). There are exceptional circumstances which could prompt the

Commission to conclude that the failure to hear a witness was contrary

to Article 6 (Art. 6) of the Convention. However, the Commission notes

that the applicant has failed to give any information on the identity

of the witnesses, and in particular to state in what way such witnesses

could have supported his defence.

In conclusion, the Commission considers that the proceedings as

a whole do not disclose that the applicant was deprived of a fair

hearing within the meaning of Article 6 (Art. 6) of the Convention, in

respect of the administration of evidence or in any other aspect.

It follows that the application in this respect is manifestly

ill-founded and must be rejected in pursuance of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant further complains under Article 5 para. 3

(Art. 5-3) of the Convention, of the length of his detention. He

maintains that his detention on remand lasted three years and four

months, namely from the date of his arrest (17 January 1990) to the day

when his conviction became final (20 May 1993).

Article 5 (Art. 5) of the Convention, in so far as relevant,

provides as follows:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure

prescribed by law:

a. the lawful detention of a person following conviction

by a competent court;

(...)

c. the lawful arrest or detention of a person, effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an

offence or when it is reasonably considered necessary to

prevent his committing an offence or fleeing after having

done so.

(...)

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1.c of this Article shall be

brought promptly before a judge or other officer authorised

by law to exercise judicial power and shall be entitled to

trial within a reasonable time or to release pending trial.

Release may be conditioned to guarantees to appear for

trial."

(a) In so far as the applicant's detention prior to his conviction

and sentence by the Bologna Court judgment of 10 June 1991 is

concerned, the Commission is not required to decide whether or not this

part of the complaint discloses any appearance of a violation of the

Convention, as it is inadmissible for the following reasons.

The Commission recalls that, pursuant to Article 26 (Art. 26) of

the Convention, it can only deal with a matter within a period of six

months from the date in which the final decision was taken.

It notes that the applicant's detention on remand ended on

10 June 1991 with his conviction by the Bologna Court, which is more

than six months before the date when the present application was filed

with the Commission.

It follows that this part of the complaint has been lodged out

of time and must be rejected pursuant to Article 27 para. 3

(Art. 27-3) of the Convention.

(b) In so far as the applicant's detention after 10 June 1991 is

concerned, the Commission recalls that Article 5 para. 3 (Art. 5-3) of

the Convention relates exclusively to the category of detainees

mentioned in the first paragraph under (c), namely remand detainees.

It further observes that by judgment of the Bologna Court on this

date, the applicant was convicted of drug trafficking and sentenced to

22 years of imprisonment; therefore, after this date even if the

applicant continued to be considered as a remand prisoner under

domestic law, for the purposes of Article 5 para. 3 (Art. 5-3) of the

Convention his detention comes under Article 5 para. 1 (a) (Art. 5-1-

a), which authorises the lawful detention of a person after conviction

by a competent court (cf. Eur Court H.R., Wemhoff judgment of 27 June

1968, Series A no.7, p. 23 para. 9; No. 20253/92, G.P. c. Italy, dec.

6.4.95, unpublished).

It follows that the remainder of the complaint is manifestly ill-

founded and must be rejected pursuant to Article 27 para. 2 (Art. 27-2)

of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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SACRAMATI v. ITALY

SACRAMATI v. ITALY

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