SUR LA RECEVABILITÉ
Application No. 18666/91
by René SALMON MENESES
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 30 November 1994, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 3 June 1991 by
René SALMON MENESES against Italy and registered on 13 August 1991
under file No. 18666/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Bolivian citizen, born in 1955 and residing
in La Paz (Bolivia). Before the Commission he is represented by
Mr. Paul Gully-Hart and Mr. Oreste Dominioni, lawyers practising
respectively in Geneva and in Milan.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 7 August 1988 the Italian police arrested at the Milan airport
customs a Panamanian citizen, C.M., with a suitcase containing in its
false bottom two kilograms of cocaine.
C.M. agreed to collaborate with the police and the prosecution
with a view to enabling them to arrest his accomplices in return for
the promise of a significant reduction of sentence. He was accordingly
authorised to continue to follow the instructions he had previously
received from the drug dealers.
In the evening of 8 August 1988 the police arrested the applicant
and two South Americans who were in his company.
The applicant, C.M. and the two South Americans were subsequently
detained on remand on charges of drug trafficking.
Before the investigating judge, the applicant stated that, before
leaving for a business trip, a friend in Panama had asked him to
collect a suitcase and money in Milan. He had contacted C.M. at the
telephone number which he had been given by his friend, and had later
met C.M. in a hotel. He claimed that he did not know that the suitcase
contained cocaine. As to the two South Americans, he stated that they
had met on the airplane and they had shared the same hotel room as they
had run out of money, and that he had wanted to help them.
On 13 December 1988 the applicant and his accomplices were
committed for trial. The agreement between C.M. and the prosecution was
fully disclosed and openly discussed with the applicant and his
counsel.
By judgment of 28 February 1989, the Milan Court found the
applicant guilty of drug trafficking, and sentenced him to twelve
years' imprisonment. The two South American accomplices were sentenced
respectively to twelve years' and twelve years' and two months'
imprisonment. C.M. was sentenced to six years' imprisonment. The Court
took into account his effective cooperation with the police.
The Milan Court held that, after having agreed to collaborate,
C.M. received two telephone calls from the applicant on 8 August 1988.
The police did not record the conversations, which were conducted in
Spanish, but C.M. repeated aloud, in the presence of the police and,
on the second occasion also in the presence of an interpreter, what the
applicant said. Thereafter, C.M. had met the applicant at a hotel where
further details of the planned transaction had been discussed. When the
applicant had left, C.M. had informed the policemen of the contents of
their conversation. The applicant had called C.M. twice again.
The applicant lodged an appeal against this judgment. While
claiming to be innocent, he challenged the credibility of C.M. alleging
that the latter had only accused him in order to obtain a reduction of
sentence and that his statements were contradictory.
On 5 December 1989 the Milan Court of Appeal confirmed the
applicant's conviction, but reduced the sentence to seven years'
imprisonment taking into account mitigating circumstances.
The Court of Appeal held that it was fully aware of the fact that
C.M.'s decision to cooperate with the police had been determined
mostly, if not entirely by the prospect of a reduction of sentence;
nevertheless, after having meticulously examined C.M.'s declarations
and proceeding from both the substantial corroboration - in particular
the statements of the co-accused and the documentary evidence assembled
- and its broad experience in dealing with drug trafficking, the Court
came to the firm conclusion that C.M.'s statements were convincing and
that the applicant was guilty.
The applicant lodged an appeal on points of law against this
judgment complaining of the failure to examine certain grounds of
appeal, the lack of reasons concerning the aggravating and mitigating
circumstances and of contradictions in evaluating the evidence.
By judgment of 3 December 1990/23 February 1991, the applicant's
appeal on points of law was dismissed by the Court of Cassation.
COMPLAINTS
The applicant complains of his conviction and sentence and claims
that he has been denied a fair trial. He also alleges an infringement
of both the principle of presumption of innocence and the principle of
equality of arms.
He complains in particular that his conviction was mainly based
on the evidence of an accomplice, who had been granted a reduction of
sentence in return for his collaboration with the judicial authorities,
and that the judges disregarded all the contradictions in the
accomplice's statements and did not deal with some of the objections
raised by the applicant's defence.
He further challenges the validity of what he considers as
telephone tapping used as evidence against him, namely that the police
did not record the conversations between him and the accomplice, but
simply asked the latter to repeat aloud to the police the statements
he had made on the telephone. In the applicant's opinion, the police
could not be sure of the contents of such conversations, which moreover
were conducted in Spanish and, on one occasion, even in the absence of
an interpreter.
The applicant raises the same complaint in connection with the
accomplice's report to the police about the contents of the
conversation he has had with him during the meeting at a hotel.
The applicant finally complains that the judges refused to hear
a witness whose testimony, although not crucial, could have provided
positive information of the applicant's character.
The applicant alleges a violation of Article 6 paras. 1, 2 and
3 d) of the Convention.
THE LAW
1. The applicant complains of his conviction and sentence and also
of the proceedings concerned.
The Commission first recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the parties to the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention (cf. No. 13926/88, Dec. 4.10.90, D.R. 66 pp. 209, 225).
It is true that in the present case the applicant complains also
that he was denied a fair hearing and in particular that the judges
based themselves mainly on the testimony of an accomplice who had been
granted a reduction of sentence in return for his cooperation with the
judicial authorities; according to him, the judges allegedly
disregarded the discrepancies in the accomplice's statements and
ignored some points raised by his counsel. He also complains that the
evidence against him which was based on the contents of the telephone
conversations and the conversation at a meeting with C.M., was
irregular and unlawful. Finally, he complains that he was refused to
have a witness heard on his behalf who could have provided information
about his character.
Article 6 (Art. 6), insofar as relevant, reads:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a fair (...) hearing (...) by a (...)
tribunal (...).
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
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".
Even assuming that the applicant, in accordance with Article 26
(Art. 26) of the Convention, has complied with the condition as to the
exhaustion of domestic remedies, namely that he had raised his
complaints either in form or in substance before the Court of Appeal
and the Court of Cassation, the Commission recalls that the
requirements of paragraph 3 of Article 6 (Art. 6-3) represent
particular aspects of the right to a fair trial guaranteed in paragraph
1. It will therefore examine the complaints from the point of view of
these two provisions taken together (see Eur. Court H. R., Lüdi
judgment of 15 June 1992, Series A, no. 238, p. 23, para. 43).
The Commission recalls that the question of the admissibility of
evidence and of its probative value is primarily governed by the rules
of domestic law, and as a general rule it is for the national courts
and in particular the courts of first instance, to assess the evidence
before them, as well as the evidence which the accused seeks to adduce
(see Eur. Court H. R., Edwards judgment of 16 December 1992, Series A,
no. 247-B, pp. 34-35, para. 34; Windisch judgment of 27 September 1990,
Series A no. 186, p. 10, para. 25).
The Commission's task in the present case is therefore not to
express a view as to whether the evidence against the applicant - in
particular the testimony of the accomplice - was correctly admitted and
assessed by the judges, but rather to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair (see, Eur. Court H.R., Saïdi judgment of 20 September 1993,
Series A no. 261-C, p. 56 , para. 43).
In this context the Commission recalls that all the evidence must
normally be produced in the presence of the accused at a public hearing
with a view to adversarial argument. There are exceptions to this
principle, but they must not infringe the rights of the defence; as a
general rule paragraphs 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d)
require that the defendant be given an adequate and proper opportunity
to challenge and question a witness against him, either when he makes
his statements or at a later stage of the proceedings (see the above
mentioned Lüdi judgment, loc. cit. p. 21, para. 47; Eur. Court H.R.,
Isgró judgment of 19 February 1991, Series A no. 194-A, p. 12, para.
34; Eur. Court H.R., Saïdi judgment, loc. cit., p. 56, para. 43).
The Commission points out that the use at the trial of evidence
obtained from an accomplice by granting him a reduction of sentence may
put in question the fairness of the hearing granted to an accused
person, and thus raise an issue under Article 6 para. 1 (Art. 6-1) of
the Convention (No. 7306/75, Dec. 6.10.76, D.R. 7, p. 115).
However, the Commission notes that in the present case there are
numerous elements in the proceedings as a whole, and concerning C.M.'s
evidence in particular, that indicate that the applicant had a fair
hearing.
In the first place the agreement between the accomplice and the
prosecution was fully disclosed and openly discussed with the applicant
and his counsel. The applicant had every opportunity, through his
lawyer, to put questions directly to C.M. and to challenge his
statements, thus providing the judges with all information which was
capable of casting doubt on the witness' credibility. Moreover the
Italian courts had examined the evidence before them thoroughly, and
had come to the conclusion that the statements made by C.M. were
corroborated by other evidence, such as the statements of the
applicant's accomplices as well as documents found in the defendant's
possession.
As regards the refusal to hear a witness, the Commission recalls
that it is normally for the national courts to decide whether it is
necessary or advisable to call a witness (see Eur. Court H.R., Bricmont
judgment of 7 July 1989, Series A no. 158, p. 31, para. 89). There are
exceptional circumstances which could prompt the Commission to conclude
that the failure to hear a witness was contrary to Article 6 (Art. 6)
of the Convention. However, the Commission considers that in the
present case such circumstances do not exist.
The Commission finds therefore no appearance that the criminal
proceedings against the applicant in respect of the administration of
evidence or in any other aspect were unfair.
Finally, the Commission does not consider that any issue arises
under Article 6 para. 2 (Art. 6-2) of the Convention.
It follows that the application is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy