FIRST SECTION
DECISION
Application no. 15972/20
Ferdinando DE SILVIO
against Italy
The European Court of Human Rights (First Section), sitting on 9 July 2024 as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 15972/20) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 17 March 2020 by an Italian national, Mr Ferdinando De Silvio, who was born in 1984 and lives in Sora (“the applicant”) and was represented by Mr M. Giuliano, a lawyer practising in Cassino;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged refusal to hear a defence eyewitness during the criminal trial against the applicant.
2. The applicant was sentenced to six years’ imprisonment for causing highly severe personal injuries. In particular, he was accused of striking the victim, I.D., in the eye with an iron bar.
3. A quarrel between the applicant and I.D. had started inside a venue. The two men left the venue separately, but after a while I.D. came back inside holding his hand over his eye. As a consequence of the events, I.D. was left with one blind eye and his face was permanently scarred.
4. During the trial, some of the witnesses refused to testify and others changed their initial accounts of the events or became very reticent. One of them, N.P., declared that she did not wish to testify because she was afraid of the applicant and his family, who were menacing and violent. Almost all the witnesses heard by the police or during the trial claimed that they had been inside the venue and had not witnessed the fight outside.
5. The chain of events outside the venue was described differently by the applicant and by the victim. The applicant maintained that he had been assaulted by I.D., who was holding an iron bar; that he had tried to stop him and that, during the fight, I.D. had injured himself because of the kickback of the iron bar that he was holding. On the contrary, I.D. maintained that he had been sitting in his car, about to leave the place, when he was struck with an iron bar by the applicant, through the passenger window.
6. A possible eyewitness to what happened outside, E.S., was admitted by the Cassino District Court, but the decision was revoked by the same court because it became impossible to ensure the attendance of the witness. The court observed that for more than one year E.S. did not appear, even when the judge had ordered the police to accompany him to the hearings (so-called “accompagnamento coattivo”). On these occasions, E.S. could not be found or had asked to be taken to hospital or had scheduled medical visits on the same date and time as the hearings.
7. In revoking E.S.’s order to appear as witness, the judge allowed the defendant to hear a different witness on behalf of the defence.
8. Upon appeal by the applicant, he reiterated his request to examine E.S., but this request was dismissed and the Court of Appeal of Rome confirmed the applicant’s conviction. Ultimately, the applicant complained of the impossibility of examining E.S. before the Court of Cassation, which dismissed the applicant’s appeal on 17 September 2019.
9. In convicting the applicant, the domestic courts found that the victim’s account of events was more plausible and more in line with the evidence gathered, mainly regarding the type of blow that could have caused the wound (direction top-down). Moreover, in the domestic courts’ opinion, the applicant’s account could not explain the traces of blood that had been found on the passenger seat and on the window of the victim’s car.
10. The applicant complained under Article 6 § 3 (d) of the Convention about the irreparable prejudice to his defence rights caused by the impossibility to call before the court his defence witness. He also complained about the lack of reasoning for the order to appear as witness.
THE COURT’S ASSESSMENT
11. The general principles concerning the right to a fair trial and the examination of defence witnesses have been summarised in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 139-68, 18 December 2018), which has provided specific indications. Without requiring a detailed mention, the Murtazaliyeva test aims at determining:
(1) whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation;
(2) whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial; and
(3) whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings.
12. In the present case, as far as the first step is concerned, the defence surely submitted sufficient and relevant reasons to hear the alleged eyewitness and the first-instance court accepted the request, considering his potential relevance.
13. As regards the second step, the Court has reiterated that, where the trial court grants a request to hear defence witnesses, it is under an obligation to take effective measures to ensure their presence at the hearing by way of, at the very least, issuing summonses (see Khodorkovskiy and Lebedev v. Russia (no. 2), nos. 51111/07 and 42757/07, § 509, 14 January 2020, and Polufakin and Chernyshev v. Russia, no. 30997/02, § 207, 25 September 2008). It has further reiterated that good reasons for the absence of a witness must exist from the trial court’s perspective, that is, the court must have had valid factual or legal grounds not to secure the witness’s attendance at the trial. In cases concerning a witness’s absence owing to unreachability, the Court requires the trial court to have made all reasonable efforts to secure the witness’s attendance, which may include an active search for the witness with the help of the domestic authorities, including the police (see Schatschaschwili v. Germany [GC], no. 9154/10, §§ 119‑22, ECHR 2015).
14. In the case at hand, the Cassino District Court tried several times to summon the witness and issued several orders for him to be accompanied by the police. The police did not manage to ensure the presence of the witness at the trial for various reasons, including apparent medical reasons. The witness’s behaviour must be read in the context of general intimidation of witnesses, as the prosecutor’s witnesses were intimidated, as declared by some of them during the first-instance proceedings (see paragraph 4 above).
15. The revocation of the order to appear as witness cannot be considered an arbitrary decision of the first-instance court, which moreover agreed with the defence lawyer to hear a different and available witness. The long-lasting absence of defence witness E.S. could not be allowed to paralyse the proceedings indeterminably and was not attributable to the domestic authorities which, on the contrary, made considerable efforts to ensure the right of the defence at the trial. In particular, it has to be noted that the Cassino District Court repeatedly urged the police to ensure the presence of the witness and only after one year of failed attempts did the court revoke the order.
16. In the first-instance judgment the issue was thoroughly examined and consistent reasoning was provided, explaining that a long period passed without the witness ever appearing, notwithstanding the orders. The domestic court considered also, at the end of the proceedings, that the hearing of the witness, due to the evidence gathered in the meantime, proved unnecessary.
17. Lastly, the overall evaluation of the proceedings (step 3, see paragraph 11 above) is not inconsistent with a fair trial, even though the eyewitness called did not appear before the Cassino District Court. The vast number of elements considered by the domestic courts (the particular nature of the injury and the consequential loss of the eyeball, the position of blood spots in the car, the statements of other witnesses, the non-credible version of events from the defendant about the fortuitous causation of the wound) allowed them to form a solid reconstruction of facts.
18. Having regard to the above considerations, the Court finds that the applicant’s defence rights under Article 6 § 3 (d) of the Convention have not been breached and that this complaint is inadmissible for being manifestly ill‑founded under Article 35 §§ 3 (a) and 4 of the Convention.
19. It follows from the above (see in particular paragraph 16), that the domestic courts’ reasoning for the order to appear as witness was adequate and does not raise any separate issue.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 September 2024.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President