PARTLY DISSENTING OPINION OF MM. M. PELLONPÄÄ, E. BUSUTTIL,

A. WEITZEL, B. MARXER, I.C. BARRETO, P. LORENZEN AND E. ALKEMA

We regret that we are not able to join the majority in finding a violation of Article 6 paras. 1 and 3 of the Convention concerning the fairness of the hearing.

It is true that the original indictment was very vague. As rightly stressed by the majority, this must be seen in connection with the fact that also the general evidence surrounding the information given to the applicant in the indictment with regard to the accusations against him was very vague. At that time, the prosecuting authorities knew neither when, nor exactly where the reported rape had taken place.

However, it was clear from the statements R. and her mother gave to the police on 25 November 1985 that the rape had allegedly taken place inside the school premises. Being informed of the charge on 17 February 1986, the applicant appointed his defence counsel on 19 February 1986 and they could at any time have asked for access to the file - including the police reports of the interrogations of R. and her mother. Neither the applicant nor his defense counsel however did so. Counsel was thus present during the interrogation of the applicant on 30 September 1986 without having acquainted himself with the file and not even the fact that his client denied ever having been alone with R. made him ask for more detailed information on the allegations. The fact that the prosecutor's interrogation seems to have been of a rather summary character should in our opinion not be considered of particular importance. The prosecution had no reason to expect that counsel would not ask for the file until the court hearing on 25 November 1989 or possibly shortly before. The omission of the defense counsel to seek relevant available information and confront his client with it at a much earlier stage of the proceedings is in our opinion an important factor when assessing whether the applicant's rights under Article 6 paras. 1 and 3 were respected (cf. mutatis mutandis Eur. Court HR, Kamasinki v. Austria judgment of 19 December 1989, Series A no. 168, p. 33, para. 65).

In the course of the proceedings before the Rome Court the applicant had full knowledge of all the elements of the charge and had the opportunity of disputing them and defending himself from the accusation. The Italian judicial authorities acknowledged that, due to the mental handicap of R., the original indictment was inaccurate as to the place and time of the rape. They found however that such inaccuracy had been remedied at a later stage of the proceedings through further corroboration, namely through the testimony of the main witnesses against the applicant, and concluded that the applicant's defense rights had not been hindered.

We do not find this conclusion arbitrary or otherwise unfair. It is therefore our opinion - also in the light of the just mentioned special circumstances of the case - that the applicant's right to be informed of the nature and cause of the accusation against him was not violated.

As to the allegedly incorrect assessment of the evidence by the judges, we recall 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 HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A, no. 247-B, pp. 34-35, para. 34; Windisch v. Austria judgment of 27 September 1990, Series A no. 186, p. 10, para. 25).

The Court of cassation analyzed thoroughly and in detail all of the applicant's complaints, addressing the issue of the assessment of the evidence by the lower courts, and concluded that the latter had not overstepped the limits of appreciation of evidence or established facts in an arbitrary manner. We do not find these conclusions arbitrary or otherwise unfair.

As to the refusal to hear a witness on the applicant's behalf, we recall that it is normally for the national courts to decide whether it is necessary or advisable to call a witness (see Eur. Court HR, Bricmont v. Belgium judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). There are exceptional circumstances which could prompt a conclusion that the failure to hear a witness was contrary to Article 6 of the Convention. We do not think, however, that such circumstances exist. In particular, the applicant has in our opinion failed to state in what way the witness he wanted to examine would have supported his defence.

We have therefore come to the conclusion that the proceedings as a whole do not disclose that the applicant was deprived of a fair hearing within the meaning of Article 6 of the Convention, in respect of the administration of evidence or in any other aspect.