Information Note on the Court’s case-law 249
March 2021
Di Martino and Molinari v. Italy - 15931/15 and 16459/15
Judgment 25.3.2021 [Section I]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Failure by a court of appeal to hear prosecution witnesses before overturning the acquittal verdict given at first instance under summary procedure:no violation
Facts – The applicants were tried under summary (simplified) proceedings, as they had requested, with a view to obtaining a reduction of sentence. The preliminary hearings judge (GUP) allowed their request, considering that the case could be determined on the basis of the evidence in the file created by the prosecution during the preliminary investigations, which evidence had included transcriptions of the statements of several “criminals turned informers”. Subsequently, availing himself of an option provided for in the Code of Criminal Procedure (CPP), the GUP ordered a hearing of B.S., a former mafia figure who had meanwhile become an informer.
The GUP acquitted the second applicant and partly acquitted the first applicant, convicting him of only one offence. He considered that the evidence gathered had not proved their criminal liability. On the other hand, the court of appeal overturned that judgment and found the applicants guilty, having interpreted the overall evidence differently, including all the witness statements, and deeming it sufficient justification for a conviction.
Law – Article 6 § 1
(a) Failure to hear three witnesses:
Summary proceedings provide defendants with some undeniable advantages: a large reduction of sentence in the event of conviction and the fact that the prosecution cannot appeal against convictions which do not modify the legal characterisation of the offence. On the other hand, it weakens the procedural guarantees provided under domestic law: publicity of hearings, and the possibility of requesting the presentation of evidence not included in the prosecution file, and to summon witnesses.
The ability of a defendant to engage in plea bargaining or to obtain a reduction of sentence by pleading guilty, or to unequivocally waive the right to challenge the facts before the proceedings or fully cooperate with the investigating authorities, is commonplace in European criminal justice systems.
By applying for summary proceedings, the applicants, who had been assisted by lawyers, had agreed to base their defence on the evidence gathered during the preliminary investigations, of which they had taken cognisance, and had thus unequivocally waived their right to secure the summoning and questioning of witnesses at the hearing, in a conscious and informed manner. They had further agreed that the judges could use transcriptions of the statements of “criminals turned informers” included in the prosecution file. Moreover, they knew, or ought to have known, that in the event of acquittal at first instance the court of appeal had the option of re-trying the case on the basis of that same evidence. Thus their request for a trial under summary proceedings had implied a waiver of oral evidence and had had the consequence that their trial was based on the documentary evidence included in the case file. Therefore, the present case was different from other previous cases before the Court where the court of appeal had not complied with the requirement to directly question the witnesses who had been heard at first instance and whose statements that court was to interpret in a radically different manner unfavourable to the accused, and convict him for the first time.
The applicants had not been arbitrarily deprived of the advantages attaching to the principles of a fair trial, having benefited from a reduction of sentence consequent upon the adoption of summary procedure. Nor had the case raised any public-interest issues inimical to the waiver in question.
Furthermore, the Court of Cassation recently adopted an extensive interpretation of the CPP, requiring appellate courts to order ex officio the hearing of witnesses who are decisively important for the conviction, in both ordinary and summary criminal proceedings.
In conclusion, the applicants could not complain of any breach of their right to a fair trial on account of the court of appeal’s failure to hear witnesses.
b) Failure to hear one witness:
The witness in question had been summoned ex officio by the GUP, and had therefore been questioned in a hearing by the latter, unlike the other prosecution witnesses.
The right of the judge to derogate from the ordinary conditions governing summary proceedings and thus obtain, even ex officio, the requisite evidence for his decision is explicitly laid down in the CPP and does not amount per se to an infringement of the principles of a fair trial.
The applicants’ conviction had been based on several pieces of evidence. The statement by the witness in question had thus only confirmed the statements given by the other witnesses and corroborated the whole body of prosecution evidence presented. Indeed, neither the GUP nor the court of appeal had attached any decisive weight to this witness statement. Furthermore, the GUP had summoned this witness in order to assess the position of one of the applicants’ co-defendants.
Having regard to the foregoing considerations, and in particular to the evidentiary value of the witness statement in question, and bearing in mind that it is, in principle, incumbent on the domestic courts to assess the evidence which they have gathered, it could not be held that by failing to hold a further hearing of the witness the court of appeal had restricted the applicants’ defence rights.
Conclusion: no violation (unanimous).
(See also Hermi v. Italy [GC], 18114/02, 18 October 2006, Legal summary; Hany v. Italy (dec.), 17543/05, 6 November 2007, Legal summary; Scoppol [GC], 10249/03, 17 September 2009, Legal summary; Lazu v. Republic of Moldova, 46182/08, 5 July 2016, Legal summary; Murtazaliyeva v. Russia [GC], 36658/05, 18 December 2018, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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