Information Note on the Court’s case-law 13

December 1999

A.M. v. Italy - 37019/97

Judgment 14.12.1999 [Section II]

Article 6

Article 6-3-d

Examination of witnesses

Impossibility for accused to cross-examine key witnesses against him: violation

Facts : A minor of American origin reported the applicant, who was the caretaker at a hotel where he had been staying, to the American authorities claiming that he had indecently assaulted him. The Italian public prosecutor brought proceedings against the applicant for indecently assaulting a minor and committing obscene acts in a public place. The Italian public prosecutor’s office sent an international request for jud icial assistance to the American criminal court, under the Convention on Judicial Co-operation signed by Italy and the United States, asking for statements to be taken from the minor, his father and the doctor whom the child had consulted. The request stat ed that no lawyer could be present during questioning. The child’s father, who was interviewed by a police officer, confirmed that his son had told him that he had been indecently assaulted by the applicant. The record of that interview and the written sta tements of other witnesses, including the child’s mother and a child psychotherapist, were sent to the Italian authorities. At the request of the public prosecutor’s office, the Italian court ordered the documents to be read out in accordance with the Code of Criminal Procedure. The court sentenced the applicant to two years imprisonment, suspended , basing their decision on the complaint filed by the minor with the American authorities and the statements of his parents and the psychotherapist. The applicant appealed on the ground that the child had never been questioned, that evidence had been taken from his mother and the psychotherapist ultra petita and had been confined to written statements and, lastly, that the father’s evidence had not been taken by an appropriate authority. He also complained about the fact that no lawyer had been able to be present and that the persons interviewed had not taken the oath, which should have prevented the Italian court from convicting him on the basis of their evidence. The Court of Appeal upheld the judgment of the court of first instance and the applicant’s appeal on points of law was dismissed.

Law : Article 6 § 1 combined with Article 6 § 3 (d): The rights of the defence were restricted in a manner incompatible with th e guarantees of Article 6 if a conviction was based solely or decisively on the statements of a witness whom the accused had not been able to cross-examine or have cross-examined either at the investigation stage or at trial. In the instant case the domest ic courts had convicted the applicant exclusively on the basis of statements taken in the United Stated prior to the trial and at no stage in the proceedings had the applicant been able to confront his accusers. The Italian authorities had stated in the in ternational request for judicial assistance that no lawyer could be present at the interviews. The Government maintained that under the Convention on Judicial Co-operation between Italy and the United States the applicant could have requested that the witn esses be interviewed in the presence of lawyers. However, the Government had not submitted any judicial decision in which that Convention between Italy and the United States had been so applied. Thus the accessibility and effectiveness of the possibility a fforded to the applicant under the Convention to which the Government had referred had not been established. The applicant had not therefore had a sufficient and adequate opportunity to challenge the witness statements on the basis of which he had been con victed.

Conclusion: violation (unanimous).

Article 41 - The Court awarded ITL 50,000,000 in compensation for the damage suffered by the applicant and ITL 4,837,900 for costs and expenses in the national courts and before the Convention institutions.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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