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You are here: BAILII >> Databases >> European Court of Human Rights >> ISGRÒ v. ITALY - 11339/85 [1991] ECHR 13 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/13.html Cite as: [1991] ECHR 13

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In the Isgrò case*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court***, as a Chamber composed

of the following judges:

Mr R. Ryssdal, President,

Mr J. Cremona,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr C. Russo,

Mr J. De Meyer,

Mrs E. Palm,

Mr I. Foighel,

Mr A.N. Loizou,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 27 September 1990 and

21 January 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 1/1990/192/252. The first number is the

case's position on the list of cases referred to the Court in

the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to

the Court since its creation and on the list of the

corresponding originating applications to the Commission.

** As amended by Protocol No. 8, which came into force on

1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court on 16 February 1990 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 11339/85) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Salvatore Isgrò, on 12 September 1984.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Italy recognised

the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as

to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 paras. 1 and 3

(d) (art. 6-1, art. 6-3-d).

2. In response to the enquiry made in accordance with Rule 33

para. 3 (d) of the Rules of Court, the applicant stated that he

wished to take part in the proceedings and designated the lawyer

who would represent him (Rule 30). On 19 March 1990 the President

of the Court granted him leave to use the Italian language (Rule 27

para. 3).

3. The Chamber to be constituted included ex officio Mr C. Russo,

the elected judge of Italian nationality (Article 43 of the

Convention) (art. 43), and Mr R. Ryssdal, the President of the

Court (Rule 21 para. 3 (b)). On 26 March 1990, in the presence of

the Registrar, the President drew by lot the names of the other

seven members, namely Mr J. Cremona, Mr F. Gölcüklü,

Mr L.-E. Pettiti, Mr J. De Meyer, Mrs E. Palm, Mr I. Foighel and Mr

A.N. Loizou (Article 43 in fine of the Convention and Rule 21 para.

4) (art. 43).

4. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 para. 5) and, through the Registrar, consulted the Agent

of the Italian Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the need for a written

procedure (Rule 37 para. 1). In accordance with the order made in

consequence, the Registrar received the Government's memorial on 31

July 1990. On 25 July and 14 September Mr Isgrò's lawyer and the

Commission's Delegate informed the Registrar that they would submit

their observations at the hearing.

5. Having consulted, through the Registrar, those who would be

appearing before the Court, the President, on 3 August 1990, set

down the hearing for 24 September 1990 (Rule 38).

6. On 21 August the applicant filed his claims for just

satisfaction. On 31 August and 5 September the Commission produced

the file on the proceedings before it, as requested by the

Registrar on the President's instructions.

7. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, seconded to

the Diplomatic Legal Service of the

Ministry of Foreign Affairs, Co-Agent,

Mr M. Guardata, magistrato, seconded to the

legislative bureau of the Ministry of Justice,Counsel;

(b) for the Commission

Mr E. Busuttil, Delegate;

(c) for the applicant

Mr G. Pisauro, avvocato, Counsel.

The Court heard addresses by the above-mentioned

representatives.

AS TO THE FACTS

I. The circumstances of the case

A. The prosecution and the investigation

8. Mr Salvatore Isgrò was born at Messina. When the Court last

received information concerning his whereabouts, he was in

detention at the prison of Porto Azzurro (Livorno).

9. On 11 November 1978 the Monza public prosecutor's office

ordered Mr Isgrò's arrest together with that of a number of other

persons. They were suspected of involvement in the kidnapping and

death of a young man, G., who had been kidnapped on 9 November 1978

and who, on the following day, had been found dead from an overdose

of chloroform. The public prosecutor's decision was based on the

statements of a certain Mr D., who had been asked by the organisers

of the kidnapping to assist them by keeping watch over the victim,

but had decided to co-operate with the carabinieri.

10. When interviewed by the carabinieri on 11, 13 and 16 November

1978 and by the public prosecutor on 14 November, Mr D. provided

information on the preparation of the kidnapping and on the

contacts which he claimed to have had at the time with Mr Isgrò and

one Mr L. He also alleged that he had been threatened because he

had not wanted to participate in the crime.

11. On 16 November 1978, in the course of an examination by the

public prosecutor, the applicant admitted knowing Mr D., but denied

having asked him to take part in the offence. He also rejected the

suggestion that there was any enmity between them.

12. Before the investigating judge, who questioned him on

23 February 1979, he referred to disputes with Mr D.; he added that

the latter had asked him to take part in a kidnapping, but that he

had refused to do so.

On 10 April 1979 the same judge interviewed Mr D., who

confirmed his earlier statements and gave various details

concerning his conversations with Mr Isgrò and Mr L., including a

meeting on 10 November 1978 with Mr Isgrò.

13. Again on 10 April 1979 the investigating judge confronted Mr

D. with the applicant who, in accordance with the provisions in

force at the time (see paragraph 23 below), was not assisted by his

lawyer. Each of them repeated his own version of events. The

record of the confrontation reads as follows (translation from the

Italian):

"... D. to Isgrò ...: I confirm the statements made to

the carabinieri and to the investigating judge. I confirm in

particular that at the beginning of October you asked me to

take part in a kidnapping. Before, a few months ago, you had

talked generally about the possibility of earning a bit of

money.

Isgrò ... to D.: You're not telling the truth, it's not

true that I proposed to you to take part in a kidnapping. It

was exactly the opposite which happened. You came to my place

- I don't remember exactly when - and you proposed that I

guard a kidnap victim. I didn't even want to listen to you

and I threw you out.

D. to Isgrò ...: That's all lies, what I said before is

true.

Isgrò ... to D.: You're saying what you've just said

because you've been angry with me ever since, when your aunt

M. asked me, I stopped a fight between you and a certain N.

D. to Isgrò ...: I also confirm that I met you, the day

of the kidnapping, in the ... bar of Malnate. On that

occasion you explained to me what I would have to do during

the detention of the kidnap victim and in particular how I

should get him to write the messages to his family. You also

told me that I should be seen out and about as usual.

Isgrò ... to D.: In the days before my arrest, I did go

once to the ... bar in Malnate with my family and an aunt whom

I had taken to Switzerland for a trip. If I remember

correctly it was in fact on 9 November, I don't remember the

time. I had accompanied my aunt who was to telephone to

Sicily, but I don't remember at all having seen you and even

less having spoken to you.

D. to Isgrò ...: I repeat what I stated before, I saw you

shortly before twelve o'clock.

Isgrò ... to D.: It's not true, I was not in the bar at

that time, I don't remember exactly where I was, but I

remember that I only went to the bar in the afternoon.

D. to Isgrò ...: I confirm that you know the L. brothers

and in particular that I saw P. L. go to your house.

Isgrò ... to D.: It's absolutely untrue that I knew the

L. [brothers]. You're lying.

D. to Isgrò ...: I repeat that you yourself told me that

a few years ago you used to go to the Pizzeria ... in Malnate

with the L. [brothers].

Isgrò ... to D.: That's all lies. You want to destroy me

because you've never forgiven me for not helping you in your

crooked deals.

...

D. to Isgrò ...: I myself have seen you in the company of

the L. [brothers] at the Pizzeria ... in Malnate.

...

Isgrò ... to D.: I repeat that that's not true. I've

never seen the L. [brothers].

..."

On the same day the investigating judge organised a

confrontation between Mr D. and another accused, namely one of the

L. brothers.

14. On 31 May 1979 the investigating judge questioned for one last

time Mr D., who maintained his allegations.

15. On 9 January 1980 the judge committed Mr Isgrò and nine

co-accused for trial in the Monza District Court.

B. The trial

16. At the public prosecutor's request, the President of the

District Court ordered Mr D. to be called as a witness at the

hearing on 19 February 1980. On being informed, on 14 February,

that it had been impossible to trace the person concerned for

several months, he ordered that inquiries be made immediately.

These inquiries were conducted in four separate places, but they

were unsuccessful although Mr D. telephoned the carabinieri on 1

March and the investigating judge on 3 March.

17. The trial was spread over twelve hearings from 18 February to

4 March 1980. The court heard, among others, the applicant, his

wife and a number of witnesses. However, it refused to call a

person who had already been questioned by the investigating judge:

counsel for Mr Isgrò sought to have this witness called in

connection with evidence concerning Mr D.'s conduct on the day of

the kidnapping, of which the person in question had informed Mrs

Isgrò according to the latter's statements before the court; but in

the court's view the evidence available to it deprived this

testimony of any importance.

As Mr D. remained impossible to trace, the records of each of

his interviews and of the confrontation of 10 April 1979 (see

paragraph 13 above) were read out on 26 February. This had been

ordered by the court in pursuance of Article 462, first paragraph,

sub-paragraph 3, of the Code of Criminal Procedure (see paragraph

24 below), notwithstanding the objections of the lawyers of two of

the applicant's co-accused.

18. On 29 February and 3 March, the applicant's lawyer indicated

that his client's wife had seen Mr D. in the street at Malnate,

where he had been staying for several days at his mother's house.

The President of the District Court ordered that the police be

informed of this immediately.

19. On 5 March 1980 the District Court sentenced Mr Isgrò to

thirty years' imprisonment. In the grounds of its judgment, it

relied on Mr D.'s statements rather than the applicant's denials.

20. The applicant appealed and sought to have Mr D. called as a

witness. The Milan Court of Appeal directed that the latter appear

on 25 November 1981 - two days after its first hearing -, but

further searches effected in two places, one of which had been

indicated, once again, by Mrs Isgrò, were to no avail.

21. On 1 December 1981 the court upheld the verdict of guilty but

reduced the sentence to twenty years. It based its decision in

particular on the earlier statements by Mr D. In its view, he was

in hiding for fear of reprisals, a fear which it considered to be

fully justified.

22. Mr Isgrò appealed on points of law. He complained that he had

been convicted on the basis of testimony obtained during the

investigation, without his lawyer having had the opportunity to

examine the witness in question on his statements, and challenged

the use of such evidence in the trial proceedings.

The Court of Cassation dismissed the appeal on 23 March 1984

on the ground that it was intended to contest the assessment of

evidence made by the lower courts, which assessment was not open to

appeal.

II. The relevant provisions of the Code of Criminal Procedure

23. Article 304 bis of the Code of Criminal Procedure in force at

the time enumerated the steps in the investigation at which an

accused's lawyer could be present; it did not mention

confrontations between the accused and a witness.

24. Article 462 provided a list of the statements which the trial

courts were authorised, subject to certain conditions, to have read

out at the trial; they included statements obtained by an

investigating judge during a confrontation between a witness and an

accused.

Under sub-paragraph 3 of the first paragraph, such statements

might be read out where, inter alia, a witness could no longer be

traced.

PROCEEDINGS BEFORE THE COMMISSION

25. Mr Isgrò applied to the Commission on 12 September 1984. He

complained that he had been convicted on the basis of statements by

a witness who could not be traced during the trial and whom his

lawyer had never had the opportunity to examine. He relied on

paragraphs 1, 2 and 3 (d) of Article 6 (art. 1, art. 6-2,

art. 6-3-d) of the Convention.

26. The Commission declared the application (no. 11339/85)

admissible on 9 November 1988. In its report of 14 December 1989

(Article 31) (art. 31), it expressed the opinion by ten votes to

three that there had been a violation of Article 6 paras. 1 and 3

(d) (art. 6-1, art. 6-3-d) of the Convention. The full text of the

Commission's opinion and of the two dissenting opinions contained

in the report is reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 194-A

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

27. At the hearing on 24 September 1990 the Government confirmed

the submission put forward in their memorial, in which they

requested the Court to hold "that there has been no violation of

the Convention in the present case".

AS TO THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS

28. The Government stressed that neither Mr Isgrò nor his lawyer

had objected to the reading out at the trial of Mr D.'s statements

made to the investigating judge. They developed two arguments from

this: in the first place, that the applicant had failed to exhaust

the domestic remedies; secondly, that he could not claim to be a

"victim" within the meaning of Article 25

(art. 25) of the Convention.

29. The first submission, which had already been raised before the

Commission, is unfounded because an objection of the kind referred

to would not have constituted in this instance a sufficient and

effective remedy, since the Monza District Court had dismissed

similar objections formulated by two of the applicant's co-accused

(see paragraph 17 above).

As regards the second preliminary objection, the Government

are estopped from relying thereon because they did not first raise

it before the Commission. As nothing prevented them from raising

that objection at the outset, it is immaterial that it was founded

on a fact which was also adduced in order to plead the failure to

exhaust domestic remedies.

II. ALLEGED VIOLATION OF ARTICLE 6 (art. 6)

30. The applicant complained that the Monza District Court and the

Milan Court of Appeal had convicted him on the basis of the

statements made to the investigating judge by the witness Mr D.,

who had been untraceable during the trial and whom his lawyer had

never had the opportunity to examine. On this account they had, he

alleged, infringed Article 6 (art. 6), according to which:

"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:

...

(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;

... "

The Commission subscribed to this view, while the Government

disputed it.

31. 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 evidence was taken, were fair (see, as the most

recent authority, the Delta judgment of

19 December 1990, Series A no. 191-A, p. 15, para. 35).

As this is the fundamental point at issue and since the

guarantees in paragraph 3 of Article 6 (art. 6-3) are specific

aspects of the right to a fair trial set forth in paragraph 1

(art. 6-1), the Court will consider the complaint under the two

provisions taken together (ibid., p. 15, para. 34).

32. The Commission accepted that the Italian authorities had tried

to establish the whereabouts of Mr D. with the aim of securing his

attendance in Court as a witness.

In their memorial the Government stressed that the

thoroughness of the searches carried out by the authorities was not

in doubt. The applicant did not file a memorial but at the hearing

his counsel criticised the way in which those searches had been

conducted.

The evidence before the Court does not, however, disclose any

negligence in this respect. In deciding whether the applicant had

a fair trial, the Court must accordingly proceed on the basis that

it was not possible to obtain Mr D.'s presence at the trial.

33. The applicant also maintained that Mr D. had been involved in

the crime and became a witness with regard to Italian law only

subsequently. Although Mr D. did not give evidence in person

either at first instance or on appeal, the Court takes the view

that, for the purposes of Article 6 para. 3 (d) (art. 6-3-d), he

should be regarded as a witness - a term to be given an autonomous

interpretation (see, inter alia, the above-mentioned Delta

judgment, Series A no. 191-A, p. 15, para. 34) - because the

national courts took account of his statements, which were read out

at the trial.

34. 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 as evidence of statements obtained at

the pre-trial stage is not in itself inconsistent with

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

provided 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 Kostovski judgment of 20 November 1989, Series

A no. 166, p. 20, para. 41, and the above-mentioned Delta judgment,

Series A no. 191-A, p. 16,

para. 36).

35. It is therefore necessary to determine whether Mr Isgrò had

such opportunity. In this respect the present dispute differs from

other cases heard by the Court (the Kostovski judgment, cited

above, Series A no. 166, p. 20, paras. 42-43; the Windisch judgment

of 27 September 1990, Series A no. 186, pp. 10-11, paras. 27-29;

the Delta judgment, cited above, Series A

no. 191-A, p. 16, paras. 36-37).

In the first place the witness was not anonymous: Mr D.'s

identity was known both to the defence and to the investigating

judge as well as to the first-instance and appeal courts. In

particular, the investigating judge had questioned him several

times on matters concerning the applicant and the co-accused; he

had also organised two confrontations intended to compare the

earlier statements of Mr D. with those respectively of Mr Isgrò and

a co-accused.

Secondly, the confrontation of 10 April 1979 enabled the

applicant to put questions directly to Mr D. and to discuss his

statements, thus providing the investigating judge with all the

information which was capable of casting doubt on the witness's

credibility. Mr Isgrò was also able to repeat in person his claims

before the first-instance court and the Court of Appeal.

Finally, although the District Court and the Court of Appeal

were unable, despite their efforts, to take evidence from Mr D. in

person (see paragraph 32 above), that does not mean that they based

their decision solely on the statements made by him to a judge,

whose impartiality has not been contested. They also had regard to

other testimony, including that of the applicant's wife, and to the

observations submitted by the applicant during the investigation

and at the trial.

36. It is indeed true that the applicant's lawyer did not attend

the confrontation in question, and was prevented from so doing by

Article 304 bis of the Code of Criminal Procedure (see paragraph 23

above), but the public prosecutor was likewise absent. In the case

under examination the purpose of the confrontation did not render

the presence of Mr Isgrò's lawyer indispensable; since it was open

to the applicant to put questions and to make comments himself, he

enjoyed the guarantees secured under Article 6 para. 3 (d)

(art. 6-3-d) to a sufficient extent.

The Court draws attention to the fact that during the trial

the applicant's lawyer was able to carry out his brief with

knowledge not only of Mr D.'s allegations, but also of his

identity; he could thus challenge the accuracy of those allegations

and the credibility of the witness himself.

37. In sum, any limitations which may have been imposed on the

rights of the defence were not such as to deprive him of a fair

trial. It follows that there has been no violation of

paragraph 3 (d) of Article 6, taken in conjunction with

paragraph 1 (art. 6-3-d, art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that the objection of a failure to exhaust domestic

remedies is unfounded;

2. Dismisses, on the ground of estoppel, the objection that the

applicant lacked the status of "victim";

3. Holds that there has been no violation of paragraph 3 (d) of

Article 6 of the Convention, taken in conjuncton with

paragraph 1 thereof (art. 6-3-d, art. 6-1).

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 19 February

1991.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar