SECOND SECTION
DECISION
Application no. 32328/09
Vito Roberto PALAZZOLO
against Italy
The European Court of Human Rights (Second Section), sitting on 24 September 2013 as a Chamber composed of:
Danutė Jočienė, President,
Guido Raimondi,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 15 June 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Vito Roberto Palazzolo, is an Italian national, born in Terrasini (Palermo) on 31 July 1947. He is currently being detained in Thailand (Bangkok), awaiting extradition to Italy. He is represented before the Court by Mr B. Lauria and Mr G. Guiso, lawyers practising in Trapani and Milan respectively.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings instituted against the applicant in Switzerland
3. In 1984 the applicant was served with an Italian arrest warrant in Switzerland on suspicion of participating in the mafia organisation Cosa Nostra (Article 416 bis of the Italian Criminal Code, “the CP”), and of belonging to an organisation involved in international drug trafficking between Rome, Palermo, Milan, New York and Switzerland. Pending his extradition to Italy, the applicant confessed to the Swiss authorities that he had committed several drug-related offences on Swiss territory. His extradition to Italy was then suspended and he stood trial on charges of aggravated violation of the Swiss Federal Law on narcotics between 1981 and 1983.
4. In 1985 the Ticino Canton Criminal Assize Court found the applicant guilty of financing international drug trafficking between Switzerland and the United States from October 1982 to March 1983, and sentenced him to three years’ imprisonment. After a complex set of appeals, revisions and re‑trials, the initial sentence – later raised to three years and nine months’ imprisonment – became final with the Swiss Federal Tribunal’s judgment of 3 May 1994.
5. The applicant finished serving his prison sentence in Switzerland on 1 October 1989.
2. Criminal proceedings instituted against the applicant before the Rome Tribunal
6. Following a disagreement between the Rome and Palermo Tribunals concerning the issue of competence in the criminal proceedings against the applicant, on 19 January 1990 the Court of Cassation decided that the Rome Tribunal would have jurisdiction over all the offences relating to the applicant’s participation in criminal organisations, while the Palermo Tribunal would have jurisdiction over his individual offences.
7. Hence, the applicant stood trial before the Rome Tribunal on charges of participation in Cosa Nostra, as well as of being a member of an organisation involved in international drug trafficking between Rome, Palermo, Milan, New York and Switzerland. Both criminal offences were considered as having been committed prior to 1984.
8. By two judgments delivered on 28 March 1992, the tribunal acquitted the applicant of the first criminal offence and sentenced him to two years’ imprisonment for the second one.
9. The applicant then lodged a claim with the same tribunal, requesting that, as he had already served a longer sentence in Switzerland for the same offence, the aforementioned two-year sentence be considered as already served abroad.
10. The tribunal granted his request on 1 April 1993.
3. First set of proceedings instituted against the applicant before the Palermo Tribunal
11. On 3 March 2001 the Palermo Tribunal dismissed an objection lodged by the defence that the applicant had already been sentenced in Switzerland for the same offence, and sentenced him to twelve years’ imprisonment for several individual offences of international drug trafficking perpetrated in collusion with members of the mafia between 1977 and 11 June 1985.
12. However, on 22 July 2003 the Palermo Court of Appeal held that the two judgments did indeed concern the same offences, for which the applicant had been sentenced in Switzerland, and ruled that the proceedings against the applicant should be terminated (non doversi procedere).
4. Second set of proceedings before the Palermo Tribunal
(a) Pre-trial detention proceedings
13. On an unspecified date the Palermo preliminary investigations judge ordered that the applicant be remanded in custody on grounds of “substantial evidence” that he was guilty of being a full member of Cosa Nostra.
14. On 18 March 2002 that ruling was upheld by the division of the Palermo District Court responsible for reviewing precautionary measures (“the Specialised Division”).
15. Pending the main trial, on 9 January 2004 the aforementioned decision was quashed by the Court of Cassation for lack of “substantial evidence” that the applicant was guilty of the offences during the period of time following the acquittal judgment of 28 March 1992, and the case was remitted to the Specialised Division. The Court of Cassation indicated the legal principles to which the latter should adhere, namely that, in view of the Rome Tribunal’s judgment of 28 March 1992 acquitting the applicant of the same offence, none of the facts and elements relating to the period of time covered by the acquittal, or the evidence brought before the Rome Tribunal, could be used against the applicant in order to prove his membership of the criminal organisation. Such elements could constitute only a “general reference framework” that could be used to corroborate other evidence, which should relate specifically to the period not covered by the acquittal judgment.
16. As a consequence, on 2 February 2004 the Specialised Division annulled the order to remand the applicant in custody.
17. Despite the order to remand the applicant in custody, he was never arrested and remained at large throughout the course of the criminal proceedings instituted against him. He was consequently treated as a fugitive (latitante) until the Court of Cassation’s decision of 9 January 2004 and then as absent (contumace) and tried in absentia. He was represented before the domestic courts by four lawyers of his own choosing.
(b) First-instance proceedings
18. In the meantime, the case was remitted for trial before the Palermo Tribunal. The applicant was accused of being a full member of Cosa Nostra, together with S.R., G.B. and G.G., from 29 March 1992 “up to the present day” (namely, the day of his committal for trial).
19. On 5 July 2006 the tribunal, classifying the offence as aggravated involvement in a mafia organisation (concorso esterno in associazione di stampo mafioso) in contravention of Articles 110 and 416 bis of the CP, sentenced the applicant to nine years’ imprisonment.
20. The tribunal based its decision on several testimonies, documents, evidence collected from telephone and other electronic surveillance, as well as the statements of several pentiti (former members of the mafia who were cooperating with the authorities), including A.G., who, as a former high‑ranking member of Cosa Nostra, had been in close contact with the head of the organisation.
21. All the pentiti, including A.G., had themselves been convicted of involvement in Cosa Nostra and many of them had also been convicted of other offences, such as drug trafficking, extortion and murder.
22. According to the tribunal, the evidence taken at the main trial had proven that over the years, despite living in South Africa for a certain period, the applicant had been in contact with several high-ranking mafia members, directly or through his relatives living in Italy. It was proven that such relationships had continued after his acquittal.
23. In particular, in spring 1996 the applicant – who, according to several pentiti and witnesses, was a longstanding member of Cosa Nostra – had hosted two mafia members, G.B. and G.G., in South Africa. Such hospitality had been offered well after 29 May 1996 when the two men were officially fugitives. It had also been proven that until recently before the trial, the applicant had made investments as well as carried out money-laundering activities on behalf of several high-ranking members of the criminal organisation, including the head of Cosa Nostra.
24. The above-mentioned facts were attested to by three South African witnesses, one of whom, the manager of a farm where the two fugitives were hosted in South Africa, staunchly declared during the trial that the guests had suddenly left the place on 14 June 1996, the day before the South African police had searched the premises. His testimony appeared to be consistent with the investigation’s findings and was further corroborated by the testimonies of two South African police officers, as well as by the transcript of an intercepted telephone conversation. According to the tribunal, such evidence had not been contradicted by the documents of the border police, which showed that the two men had apparently left South Africa and entered Namibia on 21 May 1996. From the testimonies of the aforementioned South African investigators, which were corroborated by several documents as well as by the statements of two other witnesses, it appeared that, at the time, the border between South Africa and Namibia was not effectively controlled and it was possible to cross it in both directions without leaving any trace.
25. With regard to the latter circumstances, the tribunal held that several pentiti, especially A.G., had asserted that the applicant had made investments and carried out money-laundering activities for several high-ranking members of the criminal organisation, including its head. Such testimonies, which were coherent in themselves, were also consistent with evidence collected from telephone and other electronic surveillance.
26. The tribunal considered all pentiti, including A.G., as credible. Their statements had already been used as evidence in bringing many criminal proceedings to a conclusion. Their assertions regarding the applicant were accurate, consistent and corroborated by other evidence such as testimonies, documents, telephone and other electronic surveillance, as well as the applicant’s previous convictions in Italy and Switzerland for drug-related offences committed with mafia members.
27. In its reasoning, the tribunal endorsed the principles enunciated by the Court of Cassation on 9 January 2004 (see paragraph 15 above).
28. Many pentiti and witnesses had repeatedly asserted that in the 1970s and 1980s the applicant had been a member of Cosa Nostra and had for many years worked for key mafia leaders, carrying out international financial transactions and investments for the purpose of money-laundering as well as other favours, such as assisting with murders and helping fugitives. It was therefore considered that their assertions constituted a useful “reference framework” for the new offences with which he was charged.
29. The tribunal argued that there was no bar to examining such pentiti and witnesses in the trial, since the Rome Tribunal had been unaware of their statements when it had acquitted the applicant in 1992 (they had all started to cooperate with the authorities after that date). Furthermore, their statements about facts that had occurred in the 1970s and 1980s could be used to clarify the context of the relationships in which the applicant had operated for decades. The fact that on 28 March 1992 the same Rome Tribunal had convicted the applicant for belonging to an international drug-trafficking organisation, as well as his conviction for drug-related offences in Switzerland, also had to be taken into consideration.
(c) Second-instance proceedings
30. The applicant lodged an appeal against the first-instance judgment, relying on four main arguments.
31. Firstly, he claimed that he had been convicted for a different offence from the one for which he had been indicted (see paragraph 19 above). Furthermore, although the court’s reasoning showed that the conviction was based to a decisive extent on the pentito A.G.’s assertion that the applicant had been laundering illicit profits for the head of Cosa Nostra, that new fact had not been specifically included in the indictment.
32. Secondly, the applicant complained that during the main trial he had staunchly objected to the examination of A.G. The applicant had requested the tribunal to declare A.G.’s testimony inadmissible under Section 16 quater paragraphs 1 and 9 of Law No. 8 of 1991, as he had never mentioned the applicant’s name in the statements given during the statutory six‑month‑period (see “Relevant domestic law below”). The tribunal, however, had unlawfully dismissed his objection.
33. Thirdly, the applicant argued that he had been charged without any proof and on the basis of facts that had been covered by the acquittal judgment of 28 March 1992, in breach of the ne bis in idem principle and of the Court of Cassation’s decision of 9 January 2004. He also complained that the tribunal had failed to establish the credibility of the pentiti, and that their statements, especially those of A.G., had been insufficiently corroborated. He further complained that the tribunal had misinterpreted the evidence concerning his allegedly assisting two fugitives. The impugned event, which had not been proven from the outset, would have taken place before the two men had been formally declared fugitives, since it appeared from official documents that they had both crossed the border between South Africa and Namibia on 21 May 1996, whereas the arrest warrants had been issued on 29 May 1996. The tribunal had also misrepresented the evidence concerning the applicant’s alleged involvement in investments and money laundering for the head of Cosa Nostra. It had not considered the assertions of the pentito G.B., who considered that the applicant had severed his relationship with Cosa Nostra, owing to his judicial problems and to disagreements with some of its members. Moreover, the tribunal had attached importance to irrelevant facts, such as the applicant’s life in South Africa, and had misinterpreted the meaning of several intercepted telephone calls and other electronic surveillance.
34. Fourthly, the applicant complained about his sentence and the tribunal’s refusal to take the mitigating circumstances into account, given his long absence from Italy which he claimed had inevitably led to his detachment from the organisation.
35. The applicant requested the Court of Appeal to acquire further evidence in his defence, namely a new witness and some documents.
36. On 11 July 2007 the Palermo Court of Appeal, having reclassified the offence – following a request by the prosecutor – as full membership of Cosa Nostra (in contravention of Article 416 bis of the CP), upheld the first-instance judgment.
37. As regards the first ground of appeal, the Court of Appeal held that the tribunal’s legal classification of the offence was lawful as it did not entail a radical transformation of the offence in such a way as to compromise the applicant’s defence rights. Furthermore, the tribunal had stressed that the money-laundering activities carried out for B.P. in the 1990s and early 2000s should be considered as included in the general charge under Article 416 bis, as indicated in the indictment.
38. Concerning the second reason of appeal, the court observed that the prohibition provided for in Section 16 quater paragraph 9 of Law No. 8 of 1991 applied only to statements given to “the public prosecutor and the police” and not when a pentito was testifying at an adversarial hearing during a main trial, as happened in the instant case.
39. As to the third and fourth grounds of appeal, the court observed that the tribunal had established the credibility of all the pentiti and examined all the evidence corroborating their testimonies. Furthermore, the tribunal’s use of their statements in connection with events that occurred in the 1970s and 1980s was in conformity with the legal principle indicated by the Court of Cassation in its decision of 9 January 2004, which quashed the order to remand the applicant in custody (see paragraph 15 above).
40. The Court of Appeal not only agreed with the tribunal’s overall assessment of the evidence, but stressed that it was clear that the applicant was a full member of the organisation. In fact, in reply to a specific question, the pentito G.B. denied that the applicant had been expelled from the organisation in 1995. On the contrary, from the large quantity of evidence taken at the main trial, it was clear that the applicant, although living in South Africa, had continued his relationship with the organisation. In particular, it had been proven that he had provided assistance to two fugitives in spring 1996, that he had been aware of their status and that he had assisted them even after the formal issuing of an arrest warrant against them, as demonstrated – among other evidence – by the testimony of his former employee. The latter testimony, together with the other evidence (findings of the search, other witnesses’ testimonies, and telephone surveillance) diminished the probative value of the official documents mentioned by the applicant. It had also been proved beyond reasonable doubt that until recent years he had been investing and laundering the profits of some members of the organisation, including those of the head of Cosa Nostra, as testified by A.G., whose statements were consistent with those of other pentiti, as well as corroborated by the content of several telephone and other electronic surveillance recordings.
41. The applicant’s sentence, as well as the decision not to take mitigating circumstances into account, appeared therefore to be fair.
42. Lastly, the Court of Appeal rejected the applicant’s request to collect further evidence, as neither a new witness nor further documents were necessary to enable the court to decide the case.
(d) Proceedings before the Court of Cassation
43. The applicant lodged an appeal on points of law against the Court of Appeal’s decision, relying on four main arguments.
44. Firstly, he contested the admissibility of A.G.’s statements.
45. Secondly, he reiterated his various complaints concerning the alleged surreptitious violation of the ne bis in idem principle as his membership of the criminal organisation after 28 March 1992 had not been proved during the trial.
46. Thirdly, he argued that the court’s reasoning had been manifestly illogical and wrong. He challenged the court’s overall assessment of the evidence which, in his opinion, had been misrepresented and misinterpreted, especially with regard to the statements given by A.G., G.B. and some witnesses, and the content of several telephone and other electronic surveillance recordings. The court had not provided appropriate reasoning as regards the reliability of A.G. or the compatibility of the applicant’s absence from Sicily for over thirty years with his belonging to the organisation.
47. Lastly, the applicant complained about the Appeal Court’s refusal to admit the new evidence requested by him, which, in his opinion, would have been decisive in his favour.
48. On 23 March 2009 the Court of Cassation upheld the Court of Appeal’s judgment, endorsing its reasoning with regard to the first ground of appeal, which was consistent with its case-law and with the latest plenary decision on the matter (Court of Cassation’s judgment no. 1149/2009).
49. Concerning the second ground of appeal, the Court of Cassation considered that the applicant had not been judged twice for the same offence, since the period of time taken into consideration had been different and new evidence had been heard.
50. As for the third and fourth grounds of appeal, the Court of Cassation held that they did not concern points of law but a mere reinterpretation of the evidence which was inadmissible before itself, given that the Court of Appeal had provided thorough and detailed reasoning on each point challenged by the applicant, including those concerning the refusal to admit further evidence.
5. Proceedings before the Palermo Tribunal concerning the preventive measure
51. On 13 October 1994 the Palermo Tribunal placed the applicant under special police supervision and ordered, as a preventive measure, the seizure of a number of his assets with a view to their possible confiscation.
52. The applicant did not provide any further information on the outcome of these proceedings.
B. Relevant domestic law and practice
1. Article 273 of the Italian Code of Criminal Procedure (the “CCP)
53. Under this Article, “substantial evidence of guilt” means any evidence against the suspect which, even if not proving beyond reasonable doubt his or her responsibility, suggests that it will be possible, at a later stage of the proceedings, to establish his or her responsibility, thereby creating a heightened probability of guilt at the investigation stage.
2. Section 16 quater paragraph 1 of Law No. 8 of 1991
54. Under this provision, a person willing to cooperate with the authorities must declare in detail, within 180 days, all the information in his or her possession concerning criminal offences, co-perpetrators and proceeds of crimes.
3. Section 16 quater paragraph 9 of Law No. 8 of 1991
55. Under this provision, statements given to the public prosecutor or the police after the time-limit provided for in § 1 of the same article cannot be used as evidence against others, unless it is impossible for the evidence to be given again at a later date.
4. Article 192 §§ 3 and 4 of the CCP
56. Under this provision, the statements of former accomplices do not constitute reliable evidence unless they are corroborated by other evidence endorsing their credibility.
5. Article 296 § 1 of the CCP
57. Under this Article, a fugitive (latitante) is a person who wilfully evades the execution of a warrant issued by a court.
6. Article 165 of the CCP
58. This Article provides that a defendant officially declared a fugitive is represented for all legal purposes during the criminal proceedings by a lawyer (of his own choosing or assigned to him), to whom any documents pertaining to the investigation are notified.
7. Article 420 quater and Article 484 § 2 bis of the CCP
59. Under the above-mentioned provisions, a fugitive (latitante) or a defendant who, although having being duly summoned, remains absent (contumace), is represented for all legal purposes and defended during the criminal proceedings by a lawyer and tried in absentia.
8. Article 416 bis of the CP
60. Under this Article, in the version into force at time of the facts, any person belonging to a mafia type organisation composed of three or more persons shall be liable to imprisonment for a term of not less than three and not more than six years. The promoters, leaders or organisers of the organisation were liable on that account alone to imprisonment for a term of not less than four and not more than nine years. An organisation is of mafia type when its members use the intimidatory power of allegiance to the organisation and the resulting state of subjection and enforced silence to commit crimes, to acquire, directly or indirectly, management or at any rate control of economic activities concessions, licenses, public works contracts or public services or to obtain unfair gains or advantages for themselves or others or to hamper and hinder the free exercising of voting or procure votes for themselves or others in electoral consultations. The provision also foresees several aggravating circumstances and cases of mandatory confiscation. It also extends the punishment to other organisations of the same type, irrespective of their local names.
9. Article 110 of the CP
61. The above-mentioned Article is the general provision of the CP which extends the punishment to co-perpetrators with regards to all criminal offences.
10. Constitutional Court’s judgment no. 283 of 14 July 2000
62. The above-mentioned judgment declared Article 37 § 1 (b) of the CCP unconstitutional to the extent that it does not provide for the removal of a judge from hearing a case when, in other proceedings against the same defendant (such as proceedings for the application of preventive measures), the latter had stated his opinion on the facts of the case.
11. Court of Cassation’s judgment no. 1149 of 13 January 2009
63. In the above-mentioned judgment the Court of Cassation, sitting as a full court (Sezioni Unite), held that the prohibition provided for in Article 16 quater paragraph 9 of Law No. 8 of 1991 applies only to statements given to “the public prosecutor and the police”, and not when a pentito is heard at an adversarial hearing during a main trial.
COMPLAINTS
1. Alleged violation of the ne bis in idem principle
64. Invoking Article 4 § 1 of Protocol No. 7 to the Convention, the applicant alleged that the facts judged during the second set of proceedings before the Palermo Tribunal, which were concluded with the Court of Cassation’s final judgment of 29 April 2009, were the same as those already examined by the Rome Tribunal, which had acquitted him on 28 March 1992 of the offence of participation in Cosa Nostra (see paragraph 8 above).
65. The applicant also alleged that, despite formally deciding on a continuous criminal offence (Article 416 bis of the CP) concerning a different period of time, the domestic courts surreptitiously used evidence relating to offences committed during the previous period of time, which had been covered by the aforementioned acquittal or by the Swiss Federal Tribunal’s judgment of 3 May 1994 convicting him of drug-related crimes (see paragraph 4 above).
66. According to the applicant, the facts that had allegedly taken place after 28 March 1992, which the courts claimed proved his affiliation to the criminal organisation, such as the assistance given to the two fugitives in South Africa in 1996 and the investment and money-laundering activities for the head of Cosa Nostra, were inconsistent and uncorroborated.
2. Alleged unlawful reclassification of the offence by the Palermo Court of Appeal
67. The applicant alleged that the Palermo Court of Appeal had unlawfully charged him with the offence of “membership of a criminal organisation” under Article 416 bis of the CP, despite the fact that, at the conclusion of the first-instance proceedings, the Palermo Tribunal had reclassified the offence to the less serious one of “aggravated external involvement in a mafia organisation” under Articles 110 and 416 bis of the CP. In so doing, the Court of Appeal had violated the principle of establishing a link between the charge and the conviction, the right to be informed of the accusation, the prohibition of reformatio in peius enshrined in Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention, and the right to appeal under Article 2 of Protocol no. 7 thereto.
3. Alleged violation of the applicant’s right to be informed of the accusation against him
68. Invoking Article 6 §§ 1 and 3 (a) of the Convention, the applicant contended that the indictment filed against him by the Palermo prosecutor was vague and generic, and that his defence rights had therefore been hampered during the criminal proceedings.
4. Alleged unfairness of the proceedings and unlawful interference in the applicant’s private life
69. The applicant further complained that the domestic courts had charged him with facts – offering hospitality to G.B. and G.G. in South Africa – which, apart from being unsubstantiated in violation of Article 6 of the Convention, amounted to an unlawful interference in his private life, contrary to Article 8 § 2 of the Convention.
5. Alleged lack of impartiality of the domestic courts
70. Invoking Article 6 § 1 of the Convention, the applicant argued that the domestic courts had discriminated against him. In particular, before the trial, the presiding judge of the Palermo Court of Appeal had been put in charge of the proceedings against him in order to place him under special police supervision and to order the preventive seizure of a number of his assets with a view to their possible confiscation. In this connection, the applicant pointed out that he had not submitted a request to the Court of Cassation for the removal of the presiding judge from the hearing (ricusazione), since the consistent Constitutional case-law on the matter, as confirmed by judgment no. 178 of 18 May 1999, had shown that he had no realistic chance of obtaining redress.
71. The applicant further alleged that during the trial an unlawful meeting between the tribunal and a delegation of the South African Justice Department had taken place concerning the organisation of international legal assistance requested by the Italian authorities. On 25 March 2003, during a meeting initially attended by all the parties, including the prosecutor and the applicant’s lawyers, the South African delegation asked the tribunal to discuss some issues in private. The parties were consequently excluded from the room. The outcome of the meeting was that the tribunal, complying with the South African authorities’ request, excluded three people from the list of witnesses to be heard at the main trial (two of whom had been requested by the prosecution and one by the defence). The decision, taken at the request of the South African delegation and in the absence of the applicant’s lawyers, was another example of the Palermo Tribunal’s lack of independence and impartiality.
6. Alleged unlawful use of testimonies given by pentiti
72. Invoking Article 6 § 1 of the Convention, the applicant complained that statements given by pentiti had been used against him. In his opinion, the latter were not trustworthy, as they were interested in accusing him in order to obtain prison benefits and remuneration. He further argued that they had unlawfully testified concerning facts that had happened during the period of time covered by the judgment of acquittal. Lastly, he complained about A.G.’s assertions against him, which were vague and generic, as well as lacking first-hand knowledge of the events. Moreover, they were given only at the main trial, well after the statutory six-month period, in violation of section 16 quater paragraph 9 of Law No. 8 of 1991.
7. Alleged violation of domestic rules concerning admissibility of evidence
73. The applicant complained, under Article 6 of the Convention, that the domestic courts had used documentary evidence which had been unlawfully acquired by the Italian investigators from two compliant South African police officers instead of through official channels. The police officers were later examined as witnesses at the main trial, despite having had disciplinary proceedings instituted against them in their own country. Nevertheless, the courts had believed their wholly unreliable testimonies.
8. Alleged violation of the applicant’s right to bring evidence in his defence following the meeting with the South African authorities
74. The applicant complained, under Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention, that the unlawful exclusion of some witnesses from the main trial as a consequence of the tribunal’s meeting with the South African authorities (see paragraph 71 above) constituted a violation of his right “to obtain the attendance and examination of witnesses on his behalf” and, accordingly, his right to prove his innocence.
9. Alleged violation of the applicant’s right to bring new evidence in his defence at the appeal stage
75. The applicant argued that the unlawful rejection of his request for new evidence (a witness and documents) at the appeal stage and before the Court of Cassation had violated his defence rights under Article 6 § 3 (d) of the Convention.
10. Alleged violation of the applicant’s right to participate in the criminal proceedings
76. Invoking Article 6 § 1 of the Convention, the applicant complained that he had been tried in absentia, on the assumption that he could not be found, although his domicile abroad had been well known. In particular, he contended that he had not been aware of the proceedings instituted against him and had therefore been unable to defend himself in a practical and effective manner.
THE LAW
1. Alleged violation of the ne bis in idem principle
77. The applicant complained of having been judged twice for the same facts, in violation of the ne bis in idem principle (see paragraphs 64-66). He invoked Article 4 § 1 of Protocol no. 7 to the Convention, which reads as follows:
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”
78. The Court considers from the outset that the applicant had the opportunity to lodge this complaint before the domestic courts. In any event, the Court notes that the criminal charge brought against the applicant by the Rome Tribunal, which concluded with his acquittal, concerns an offence committed before 28 March 1992, whereas the second set of proceedings before the Palermo Tribunal concluded with the Court of Cassation’s final judgment of 29 April 2009 concerning an offence related to the period of time from 29 March 1992 until the date on which the applicant was re‑committed for trial. Furthermore, in the second set of proceedings before the Palermo Tribunal, the domestic courts assessed facts and evaluated evidence relating specifically to that different period of time (statements by witnesses and pentiti, telephone and other electronic surveillance recordings, and documents) and which had not been known to the Rome Tribunal.
79. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
2. Alleged unlawful reclassification of the offence by the Palermo Court of Appeal
80. Invoking Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention and Article 2 of Protocol No. 7 thereto, the applicant complained of the unlawful reclassification of the offence by the Palermo Court of Appeal (see paragraph 67 above). The relevant provisions read as follows:
Article 6 of the Convention
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(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; ”
Article 2 of Protocol No. 7
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
81. The Court notes that the applicant did not raise this complaint before the Court of Cassation. Accordingly, this part of the application is inadmissible for failure to exhaust domestic remedies and must be rejected in accordance with Article 35 § §1 and 4 of the Convention.
3. Alleged violation of the applicant’s right to be informed of the accusation against him
82. The applicant complained that his right to be informed of the accusation against him had been violated (see paragraph 68 above). He invoked Article 6 §§ 1 and 3 (a) of the Convention, the text of which is cited above.
83. The Court notes that the applicant did not raise this complaint before the Court of Cassation. Accordingly, this part of the application must be declared inadmissible for failure to exhaust domestic remedies, in accordance with Article 35 §§1 and 4 of the Convention.
4. Alleged unfairness of the proceedings and unlawful interference in the applicant’s private life
84. The applicant contended that the domestic courts had charged him with offences that, apart from being unsubstantiated, in violation of Article 6 of the Convention, amounted to unlawful interference in his private life, contrary to Article 8 § 2 of the Convention (see paragraph 69 above).
85. The text of Article 6 is cited above and the relevant parts of Article 8 of the Convention read as follows:
“1. Everyone has the right to respect for his private ... life ....
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
86. In accordance with Article 6 of the Convention and in so far as this complaint may be understood to concern the assessment of the evidence and the result of the proceedings before the domestic courts, the Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I). In particular, the Court cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action (see, mutatis mutandis, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296-C). The Court’s sole task in connection with Article 6 of the Convention is to examine applications alleging that the domestic courts have failed to observe specific procedural safeguards laid down in that Article or that the conduct of the proceedings as a whole did not guarantee the applicant a fair hearing. Moreover, it is for the national courts to assess the relevance of proposed evidence (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §§ 197-98, ECHR 2012).
87. In the instant case, the applicant had ample opportunity to contest the admissibility and reliability of evidence before the domestic courts at two levels of unlimited jurisdiction and before the Court of Cassation on points of law. Both the Palermo Tribunal and the Court of Appeal addressed the matter of the assistance provided to the two fugitives in decisions that appear duly motivated and not arbitrary. In particular, they explained why the official documents showing that the two men had left South Africa before the issuing of the arrest warrants had to be dismissed (see paragraphs 24 and 40 above). Therefore, the Court sees no reason to challenge the domestic courts’ assessment of the evidence in that regard.
88. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
89. With regard to Article 8 of the Convention, the Court observes that the applicant has failed to substantiate his complaint. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
5. Alleged lack of impartiality of the domestic courts
90. The applicant complained of the lack of impartiality of the courts in various respects (see paragraphs 70-71 above). He invoked Article 6 § 1 of the Convention, the text of which is cited above.
91. The Court notes that the applicant did not raise these complaints before the domestic courts. Concerning his allegation that it would have been impossible to obtain any effective redress had he submitted a request for disqualification (ricusazione) of the presiding judge (see in particular paragraph 70 above), the Court observes that following the Constitutional Court’s judgment no. 283 of 14 July 2000 (see paragraph 62 above), such a domestic remedy was accessible and potentially effective, not only in theory but also in practice, as a means of providing redress.
92. Accordingly, this part of the application is inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
6. Alleged unlawful use of testimonies given by pentiti
93. The applicant complained of the unlawful use of testimonies given by pentiti, as well as the violation of the domestic rules on the admissibility of evidence, namely section 16 quater paragraph 9 of Law No. 8 of 1991 (see paragraph 72). He invoked Article 6 § 1 of the Convention, the text of which is cited above.
94. The Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court, unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000‑V, and, mutatis mutandis, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, ECHR 2011).
95. The Court notes that the applicant had ample opportunity to bring the aforementioned complaints before the domestic courts at two levels of jurisdiction and before the Court of Cassation on points of law.
96. With regard to the first part of the complaint, the Court notes that the domestic courts provided thorough and detailed reasoning in respect of the credibility of all the pentiti, as well as the other evidence corroborating their testimonies. They pointed out in particular that all of them, including A.G., had first-hand knowledge of the criminal organisation, having been convicted themselves of involvement in Cosa Nostra and, in many cases, other related offences. Their statements had already been used as evidence in many criminal proceedings that had concluded with final judgments. Their assertions concerning the applicant appeared accurate, were consistent with each other and were corroborated by other evidence, such as several testimonies, documents, telephone and other electronic surveillance recordings, as well as the applicant’s previous convictions in Italy and Switzerland for drug-related offences committed with mafia members (see paragraphs 21, 26 and 39 above).
97. Accordingly, this part of the application must be dismissed as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.
98. With regard to the second part of the complaint, the Court notes that the domestic courts implemented the legal principles enunciated by the Court of Cassation in its decision of 9 January 2004 (see paragraph 15 above). Accordingly, the statements given by pentiti about events that had occurred during the period of time covered by the Rome Tribunal’s final judgment of acquittal served only to describe the general context of the applicant’s relationships and did not constitute direct evidence of his guilt (see paragraphs 27, 28, 29 and 50 above).
99. The Court sees no reason to challenge the domestic courts’ reasoning in that regard. Accordingly, this part of the application must be dismissed as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.
100. Lastly, concerning the alleged violation of Article 16 quater paragraph 9 of Law No. 8 of 1991, the Court notes that the domestic courts addressed the matter with internal decisions which appear duly motivated, not arbitrary, and consistent with domestic case-law, namely with the Court of Cassation’s judgment no. 1149 of 13 January 2009 (see paragraph 63 above).
101. Hence, this part of the application must be declared manifestly ill‑founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
7. Alleged violation of the domestic rules concerning admissibility of evidence
102. The applicant further complained about the use of evidence obtained from South Africa and about the court’s assessment of the reliability of testimonies given by police officers of that country, who were examined as witnesses at the main trial (see paragraph 73 above). He relied once again on Article 6 of the Convention, the text of which is cited above.
103. In so far as the applicant complained about the alleged inadmissibility of the evidence obtained from South Africa, the Court notes that such a complaint was not raised before the domestic courts.
104. Hence, this part of the application is inadmissible for failure to exhaust domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.
105. With regard to the complaint that the two South African witnesses had provided unreliable testimonies, the Court observes that the applicant had the opportunity to contest the credibility of such evidence before the domestic courts. The domestic courts’ finding that the statements had been corroborated by several documents as well as by the testimonies of other witnesses (see paragraph 24 above) appears duly reasoned and not arbitrary. The Court sees no reason to challenge the domestic courts’ assessment of the evidence in that regard.
106. Therefore this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
8. Alleged violation of the applicant’s right to bring evidence in his defence following the meeting with the South African authorities
107. The applicant further complained that his right to bring evidence in his defence had been violated as a result of the meeting of the Palermo Tribunal with the South African authorities (see paragraph 74). He invoked Article 6 §§ 1 and 3 (a), (b), (c) and (d) of the Convention, the text of which is cited above.
108. The Court notes that the applicant did not raise this complaint before the domestic courts. Hence, this part of the application is inadmissible for failure to exhaust domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
9. Alleged violation of the applicant’s right to bring new evidence in his defence at the appeal stage
109. Invoking Article 6 § 3 (d) of the Convention, the text of which is cited above, the applicant complained that his request to bring new evidence before the Court of Appeal had been rejected (see paragraph 75 above).
110. The Court reiterates that it cannot itself assess the facts which have led a national court to adopt one decision rather than another; otherwise, it would be acting as a court of fourth instance and would disregard the limits imposed on its action. The Court further reiterates that it is for the national courts to assess the relevance of proposed evidence.
111. In the instant case, the Court of Cassation dismissed the applicant’s complaint, holding that it did not concern points of law and that the Palermo Court of Appeal had provided thorough and detailed reasoning for the refusal to admit further evidence (see paragraph 50 above). The Court sees no reason to challenge the domestic courts’ assessments in that regard.
112. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.
10. Alleged violation of the applicant’s right to participate in the criminal proceedings
113. Lastly, the applicant complained that he had been tried in absentia (paragraph 76). He invoked Article 6 § 1 of the Convention, the text of which is cited above.
114. The Court notes that the applicant, who during the whole course of the proceedings was represented by several lawyers of his choosing, did not raise this complaint before the domestic courts.
115. Hence, this part of the application is inadmissible for failure to exhaust domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously,
Declares the application inadmissible.
Stanley NaismithDanutė Jočienė
RegistrarPresident
Full & Egal Universal Law Academy