Sofri and Others v. Italy (dec.)

Information Note on the Court’s case-law 53

May 2003

Sofri and Others v. Italy (dec.) - 37235/97

Decision 4.3.2003 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Loss and destruction of evidence: inadmissible

Article 6-3-d

Examination of witnesses

Witness exercising the right to remain silent: inadmissible

(translation – text taken from the press release)

Adriano Sofri, Ovidio Bompressi and Giorgio Pietrostefani are Italian nationals who were born in 1942, 1947 and 1943 respectively. Mr Sofri was sentenced to 22 years’ imprisonment for murder and is in Pisa Prison. Enforcement of Mr Bompressi’s sentence has been stayed on health grounds. Mr Pietrostefani cannot currently be found.

On 17 May 1972 a police officer, Superintendent Calabresi, was shot dead in Milan by a man who made his getaway in a stolen car. Mr Calabresi had first come into the public eye in 1969 when he was accused of pushing an anarchist out of a window after questioning him during the extreme left-wing demonstrations of that year. Investigators into Superintendent Calabresi’s murder failed to find the culprit. On 20 July 1988 a certain Mr Leonardo Marino gave himself up at the police station. He stated that he had taken part in Superintendent Calabresi’s murder on the orders of Mr Sofri and Mr Pietrostefani following a decision of the Executive Committee of the left-wing political movement, Lotta continua, of which they were the leaders. He also accused Mr Bompressi of carrying out the killing. On 28 July 1988 the applicants were arrested. They were released on 18 October 1988 and committed for trial at Milan Assize Court on 5 August 1989 on a charge of premeditated murder. At their request, the time allowed for preparing their defence and consulting the 12,000-page prosecution file was extended from 10 days to 26. During the trial it emerged that certain evidence (such as Superintendent Calabresi’s clothes, the car used by the killers and bullets that had been removed from the body) was unavailable because it had been lost or destroyed. On 2 May 1990 the Assize Court sentenced the applicants to 22 years’ imprisonment and Mr Marino to the lesser term of 11 years because he had cooperated with the judicial authorities. It found that Mr Marino was a reliable witness and that his statements had been confirmed by a substantial amount of other evidence. Giving judgment after a rehearing pursuant to a decision of the Court of Cassation, the Assize Court of Appeal acquitted the applicants and Mr Marino on 21 December 1993. The judgment, which was drafted by Judge Pincione, found that Mr Marino’s statements had been accurate and consistent, but expressed doubts about some factual circumstances which were insufficiently corroborated by other evidence and which were “obscure points” in Mr Marino’s version. Mr Sofri lodged a criminal complaint against the judge but the public prosecutor’s office decided not to prosecute. On an appeal by the Principal Public Prosecutor, the Court of Cassation quashed the Assize Court of Appeal’s judgment on 27 October 1994 on the ground that it was illogical, contradictory and inadequate. It remitted the case to another division of the Milan Assize Court of Appeal, which gave judgment on 11 November 1995 sentencing the applicants to 22 years’ imprisonment and acquitting Mr Marino on the ground that prosecution of the offence had since become time-barred. The applicants appealed to the Court of Cassation, which dismissed their appeal on 22 January 1997. Having learned that, according to two members of the jury, the President of the Assize Court of Appeal, Mr Della Torre, had encouraged the jurors to change their vote so as to secure the applicants’ conviction, Mr Sofri lodged a criminal complaint against him for misuse of his powers. No action was taken further to that complaint. Alleging that fresh evidence showed that Mr Marino was not a reliable witness and that they should have been acquitted, the applicants sought leave to apply for a retrial. Their application was granted by the Court of Appeal after a rehearing pursuant to a decision of the Court of Cassation. During the hearing of their application the applicants requested evidence to be heard from Ms Bistolfi, who was Mr Marino’s girlfriend. She chose to exercise her right to silence. In a judgment of 24 January 2000 the court dismissed the application for a retrial on the ground that the evidence submitted did not justify acquitting the appellants. Mr Sofri and Mr Pietrostefani unsuccessfully appealed to the Court of Cassation.

Inadmissible under Article 6 § 1: The Court found that the Government’s preliminary objections of failure to exhaust domestic remedies had to be dismissed. With regard to the applicants’ allegations concerning the proceedings at first instance, the Court noted that the applicants had already obtained reparation for their complaints in the domestic courts, as the Court of Cassation had quashed the judgment of the Milan Assize Court of Appeal. Since they could no longer claim to be “victims” within the meaning of Article 34 of the Convention, the Court decided to dismiss the complaints. As regards equality of arms, the applicants complained that they had not been provided with access to the record of Mr Marino’s statements to the carabinieri. They contested the truth of his assertions and complained that the evidence of the defence witnesses had been rejected. The Court reiterated that it was not its role to review the domestic courts’ findings of fact, but to determine whether the procedure as a whole was fair. In the case before it, the applicants had been convicted and sentenced after adversarial proceedings on the basis of evidence on which the parties had been able to make representations at the trial. Further, the applicants, who alleged a violation of their right to be presumed innocent, had not pointed to any decision delivered prior to their conviction from which a finding of guilt could be inferred. Accordingly, that complaint was ill-founded and had to be dismissed. With reference to the destruction and loss of certain items of evidence, the Court considered that it was highly regrettable that evidence in a homicide trial should have been destroyed shortly after the suspects were charged. However, it noted that that situation had not put the applicants at a disadvantage compared to the prosecution, as the public prosecutor had likewise been unable to use the evidence that had been lost or destroyed; the parties had thus been on an equal footing. Furthermore, some of the items had been examined, described and photographed prior to destruction, so that the applicants had been able to exercise their defence rights with regard to that evidence. In the circumstances, the destruction of the evidence had not impaired the fairness of the proceedings and the Court declared that complaint ill-founded.

The applicants also complained that they had not been tried by an independent and impartial court, as Judges Pincioni and Della Torre had not been impartial. The Court considered that there was no evidence to cast doubt on Mr Pincioni’s subjective impartiality and nothing to establish that the applicants’ fears concerning his impartiality were objectively justified. Furthermore, even if Mr Pincioni had disagreed with the acquittal, that could not of itself give rise to an issue under Article 6 of the Convention; in any event, there was no evidence to support the the applicants’ allegation that he had dissented. As for Mr Della Torre, it noted that there was nothing in the case file to suggest that his assessment of the facts had been arbitrary. It could not accept that the applicants had made out their allegation that he had put pressure on the members of the jury or that his conduct was such as to give rise to objectively justified concerns as to his impartiality. Consequently, it declared that complaint ill-founded.

As to the allegations by witnesses that Mr Della Torre had not been sufficiently reserved about the matters he was required to try, the Court noted that, even assuming that the complaint had been made in time, the applicants had not made use of their right to ask him to stand down. It accordingly declared that complaint inadmissible for failure to exhaust domestic remedies.

In a written pleading that was sent to the Court in February 2002, the applicants stated for the first time that one of the members of the jury was the daughter of a police officer and had a conflict of interest with one of the people on trial. The Court dismissed that complaint as being out of time, since it had been made more than six months after the final decision of the domestic courts.

The applicants had also complained that the proceedings on the application for a retrial were unfair, since the evidence of the defence witnesses had been rejected as unreliable and Ms Bistolfi had been allowed to remain silent. The Court noted, however, that the applicants had been given an opportunity to question her before they made their application for a retrial. Moreover, her statement had only been used as corroboration for the main prosecution evidence, namely the statement of Mr Marino, whom the applicants had been given repeated opportunities to cross-examine. In the circumstances, the Court found that the rights of the defence in those proceedings had not been infringed to the point of constituting a violation of the Convention. Lastly, as to the credibility of certain witnesses, it reiterated that it could not substitute its own assessment of the evidence for that of the domestic courts.

With regard to Mr Bompressi’s complaint that he had not been informed promptly of the reasons for his arrest, the Court rejected it as being out of time.

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

Click here for the Case-Law Information Notes

Full & Egal Universal Law Academy