Lexploria

SUR LA RECEVABILITÉ

Application No. 18666/91

by René SALMON MENESES

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 30 November 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 3 June 1991 by

René SALMON MENESES against Italy and registered on 13 August 1991

under file No. 18666/91;

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 a Bolivian citizen, born in 1955 and residing

in La Paz (Bolivia). Before the Commission he is represented by

Mr. Paul Gully-Hart and Mr. Oreste Dominioni, lawyers practising

respectively in Geneva and in Milan.

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

summarised as follows.

On 7 August 1988 the Italian police arrested at the Milan airport

customs a Panamanian citizen, C.M., with a suitcase containing in its

false bottom two kilograms of cocaine.

C.M. agreed to collaborate with the police and the prosecution

with a view to enabling them to arrest his accomplices in return for

the promise of a significant reduction of sentence. He was accordingly

authorised to continue to follow the instructions he had previously

received from the drug dealers.

In the evening of 8 August 1988 the police arrested the applicant

and two South Americans who were in his company.

The applicant, C.M. and the two South Americans were subsequently

detained on remand on charges of drug trafficking.

Before the investigating judge, the applicant stated that, before

leaving for a business trip, a friend in Panama had asked him to

collect a suitcase and money in Milan. He had contacted C.M. at the

telephone number which he had been given by his friend, and had later

met C.M. in a hotel. He claimed that he did not know that the suitcase

contained cocaine. As to the two South Americans, he stated that they

had met on the airplane and they had shared the same hotel room as they

had run out of money, and that he had wanted to help them.

On 13 December 1988 the applicant and his accomplices were

committed for trial. The agreement between C.M. and the prosecution was

fully disclosed and openly discussed with the applicant and his

counsel.

By judgment of 28 February 1989, the Milan Court found the

applicant guilty of drug trafficking, and sentenced him to twelve

years' imprisonment. The two South American accomplices were sentenced

respectively to twelve years' and twelve years' and two months'

imprisonment. C.M. was sentenced to six years' imprisonment. The Court

took into account his effective cooperation with the police.

The Milan Court held that, after having agreed to collaborate,

C.M. received two telephone calls from the applicant on 8 August 1988.

The police did not record the conversations, which were conducted in

Spanish, but C.M. repeated aloud, in the presence of the police and,

on the second occasion also in the presence of an interpreter, what the

applicant said. Thereafter, C.M. had met the applicant at a hotel where

further details of the planned transaction had been discussed. When the

applicant had left, C.M. had informed the policemen of the contents of

their conversation. The applicant had called C.M. twice again.

The applicant lodged an appeal against this judgment. While

claiming to be innocent, he challenged the credibility of C.M. alleging

that the latter had only accused him in order to obtain a reduction of

sentence and that his statements were contradictory.

On 5 December 1989 the Milan Court of Appeal confirmed the

applicant's conviction, but reduced the sentence to seven years'

imprisonment taking into account mitigating circumstances.

The Court of Appeal held that it was fully aware of the fact that

C.M.'s decision to cooperate with the police had been determined

mostly, if not entirely by the prospect of a reduction of sentence;

nevertheless, after having meticulously examined C.M.'s declarations

and proceeding from both the substantial corroboration - in particular

the statements of the co-accused and the documentary evidence assembled

- and its broad experience in dealing with drug trafficking, the Court

came to the firm conclusion that C.M.'s statements were convincing and

that the applicant was guilty.

The applicant lodged an appeal on points of law against this

judgment complaining of the failure to examine certain grounds of

appeal, the lack of reasons concerning the aggravating and mitigating

circumstances and of contradictions in evaluating the evidence.

By judgment of 3 December 1990/23 February 1991, the applicant's

appeal on points of law was dismissed by the Court of Cassation.

COMPLAINTS

The applicant complains of his conviction and sentence and claims

that he has been denied a fair trial. He also alleges an infringement

of both the principle of presumption of innocence and the principle of

equality of arms.

He complains in particular that his conviction was mainly based

on the evidence of an accomplice, who had been granted a reduction of

sentence in return for his collaboration with the judicial authorities,

and that the judges disregarded all the contradictions in the

accomplice's statements and did not deal with some of the objections

raised by the applicant's defence.

He further challenges the validity of what he considers as

telephone tapping used as evidence against him, namely that the police

did not record the conversations between him and the accomplice, but

simply asked the latter to repeat aloud to the police the statements

he had made on the telephone. In the applicant's opinion, the police

could not be sure of the contents of such conversations, which moreover

were conducted in Spanish and, on one occasion, even in the absence of

an interpreter.

The applicant raises the same complaint in connection with the

accomplice's report to the police about the contents of the

conversation he has had with him during the meeting at a hotel.

The applicant finally complains that the judges refused to hear

a witness whose testimony, although not crucial, could have provided

positive information of the applicant's character.

The applicant alleges a violation of Article 6 paras. 1, 2 and

3 d) 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 (cf. No. 13926/88, Dec. 4.10.90, D.R. 66 pp. 209, 225).

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

that he was denied a fair hearing and in particular that the judges

based themselves mainly on the testimony of an accomplice who had been

granted a reduction of sentence in return for his cooperation with the

judicial authorities; according to him, the judges allegedly

disregarded the discrepancies in the accomplice's statements and

ignored some points raised by his counsel. He also complains that the

evidence against him which was based on the contents of the telephone

conversations and the conversation at a meeting with C.M., was

irregular and unlawful. Finally, he complains that he was refused to

have a witness heard on his behalf who could have provided information

about his character.

Article 6 (Art. 6), insofar as relevant, reads:

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

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

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: (...)

(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).

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 judgment 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 - in

particular the testimony of the accomplice - 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. 6-1, 6-3-d)

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 there are

numerous elements in the proceedings as a whole, and concerning C.M.'s

evidence in particular, that indicate that the applicant had a fair

hearing.

In the first place the agreement between the accomplice and the

prosecution was fully disclosed and openly discussed with the applicant

and his counsel. The applicant had every opportunity, through his

lawyer, to put questions directly to C.M. 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 C.M. were

corroborated by other evidence, such as the statements of the

applicant's accomplices as well as documents found in the defendant's

possession.

As regards the refusal to hear a witness, 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 considers that in the

present case such circumstances do not exist.

The Commission finds therefore no appearance that the criminal

proceedings against the applicant in respect of the administration of

evidence or in any other aspect were unfair.

Finally, the Commission does not consider that any issue arises

under Article 6 para. 2 (Art. 6-2) of the Convention.

It follows that the application is manifestly ill-founded within

the meaning of 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) (A. WEITZEL)

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SALMON MENESES v. ITALY

SALMON MENESES v. ITALY

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