Craxi III v. Italy (dec.)

Information Note on the Court’s case-law 31

June 2001

Craxi III v. Italy (dec.) - 63226/00

Decision 14.6.2001 [Section II]

Article 6

Criminal proceedings

Article 6-1

Impartial tribunal

Impartiality of judges having dealt with similar cases: inadmissible

Alleged lack of independence and impartiality of prosecution service: inadmissible

The applicant was secretary of the Italian Socialist Party between 1976 and 1993 and Prime Minister between 1983 and 1987. He died in January 2000, after his application had been lodged, but his heirs stated that they wished to pursue the application. The applicant was prosecuted for corruption and illegal funding of his party in connection with work on the Milan underground (the so-called Metropolitana milanese case). The proceedings were brought as part of the “clean hands” (mani pulite) investigation. In the course of the preliminary inquiries, a certain L. admitted that he had collected payments made to the applicant’s political party by particular firms, with the applicant’s approval. At the trial L., who had likewise been charged, exercised his right to remain silent. However, the statements he had made during the investigation were added to the case file. The applicant was convicted, sentenced to eight years’ imprisonment and ordered to pay a heavy fine. He appealed against the decision but without success. Following an appeal on points of law, the appellate court’s decision was set aside by the Court of Cassation and the case was remitted to the Fourth Division of the Court of Appeal. Relying on Law no. 267 of 1997, the applicant applied to have L. summoned, but his application was refused as being out of time. The applicant challenged the division’s judges for bias, in particular its president, and sought their withdrawal, but his challenge was dismissed. The Fourth Division upheld the applicant’s conviction in part, although it reduced his prison sentence. He then appealed to the Court of Cassation, which dismissed his appeal. Throughout the trial there was intense media interest on account of the high profile enjoyed by the applicant and the other defendants. Mr Di Pietro, who had been one of the best-known prosecutors in the “clean hands” investigation but was no longer a member of the legal service, was alleged to have stated unequivocally in a lecture that the applicant was listed in the register of persons accused of corruption and abuse of office.

Inadmissible under Article 6 § 1 and § 2: (a) As regards the impartiality of the Fourth Division of the Court of Appeal, there was nothing to suggest that any doubt should be cast on the personal impartiality of the division’s president, and the applicant’s allegations were not based on any concrete evidence. His fears that the division was not impartial stemmed from the fact that it had already expressed a view, in another case, on the illegal funding of political parties and on the applicant’s character. While a situation of that kind might give rise to misgivings on the applicant’s part, such misgivings should not necessarily be regarded as objectively justified. The mere fact that a judge had already ruled on similar yet separate offences and had tried a particular defendant in other criminal proceedings could not in itself put in doubt his impartiality. However, a judge’s impartiality would be undermined if judgments which he had previously delivered referred to or anticipated the defendant’s guilt in cases yet to be decided. In the instant case, the facts of the earlier case had been quite different from those of the Metropolitana milanese case. Furthermore, the Fourth Division’s judgment in the first case had made no reference to the role that the applicant might have played in the second one. The situation complained of by the applicant could not in itself justify doubts as to the impartiality of the Fourth Division of the Court of Appeal: manifestly ill-founded.

(2) With regard to the applicant’s complaint that he had been denied his right to examine or have examined the main witness against him, the Court noted that, following the entry into force of Law no. 267 of 1997, statements made before a trial by a prosecution witness who was also a co-defendant could only be used if the adversarial principle had been observed or the defendant in respect of whom the statements were made had given his consent. Statutory provision had been made for an interim measure whereby, if statements made by co-defendants before a trial were added to the case file without the consent of the defendant in question, any interested party could – during the appeal proceedings or in the appellate court to which the case had been remitted by the Court of Cassation – apply to have the investigation reopened and to have witnesses summoned who had not been examined. Following that law’s entry into force and the Court of Cassation’s judgment, the applicant had had the opportunity in the court to which the case had been remitted to apply for the main prosecution witness to be summoned to appear and give evidence. However, his application had been made out of time and had consequently been refused. He had therefore not exhausted that domestic remedy.

(3) It was inevitable in a democratic society that the press should sometimes make harsh comments on a sensitive case which, like the one before the Court, called into question politicians’ morality and relations between the political and business worlds. In the instant case, however, there was no evidence to suggest that in assessing the defence’s submissions and the prosecution evidence, the judges who had ruled on the merits had been influenced by the statements made in the press. With regard to the applicant’s allegations that the prosecuting authorities had been pursuing political ends, the guarantees of independence and impartiality in Article 6 did not apply to the prosecuting authorities, who were one of the parties in adversarial court proceedings. It could not be inferred from the evidence adduced by the applicant that the prosecution had exceeded their powers in an effort to harm his or his party’s reputation. As to the lecture given by Mr Di Pietro, nothing in his statements – inasmuch as they might have related to the applicant – had given the impression that he was pursuing political ends or breaching the principle of a fair trial or of presumption of innocence, particularly as the lecture had taken place after the applicant’s initial conviction: manifestly ill-founded.

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

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