Last Updated on November 10, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 26581/17
DavidODDONE against San Marino
and 3 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on23 January 2018 as a Chamber composed of:
Linos-Alexandre Sicilianos, President,
Kristina Pardalos,
Aleš Pejchal,
Krzysztof Wojtyczek,
Armen Harutyunyan,
PauliineKoskelo,
Tim Eicke, judges,
and Renata Degener, DeputySection Registrar,
Having regard to the above applications lodged on 31 March 2017 and 11 April 2017,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The police investigation
3. On an unspecified date the Civil Police (PoliziaCivile) instituted an investigation concerning some suspicious car accidents which had taken place in San Marino. It had emerged from an information technology check that the first applicant and his parents (the second and third applicants) had been involved in three car accidents in just over three years, on 26 May 2008, 18 October 2009 and 28 September 2011. The first applicant was always the driver and one or both of the parents were being accompanied by him. The first applicant was always driving a different car and the insurance companies involved had always been different. However, the kind of accident and the injuries caused to the applicants had always been the same. All three car accidents had happened in the same town and two of them in the same street.
4. On 12 June 2012 the police requested information from the insurance companies concerned.
5. On 6 July 2012 the police questioned G. (the driver of the truck which had caused the third accident) and on 12 July 2012, the police questioned L. (the driver of the car which had caused the second accident) as witnesses and therefore without the assistance of their lawyers. At the beginning of the respective questioning, both G. and L. tried to characterise the relevant facts as ordinary car accidents, providing some details of the accidents to the police. Later on, however, in the course of the same questioning, they retracted their statements and admitted that the first applicant had arranged the accidents and that they had all together simulated them in order to receive compensation by insurance companies.
6. In particular, G. told the police that he and the first applicant, who were friends, had simulated a car accident on 28 September 2011. He stated that the first applicant had planned the fraud and had decided to simulate the accident in San Marino, opining that it would be simpler to obtain compensation there. G. admitted that he had accepted to take part in the criminal plan since he needed money to repay some debts. He stated that he knew that the second and third applicants (who on that day were travelling in the first applicant’s car) had also been aware of the fraud, since the first applicant himself had told him so.
7. L. told the police that the first and the fourth applicant (a lawyer who was L.’s boyfriend at that time and was travelling in her car on the day of the second accident) were old friends and they had attended the same high school. She further stated that on an unspecified date the fourth applicant had informed her that he and the first applicant had planned to simulate a car accident and the former had asked her whether she wished to take part in the fraud. She said that at the beginning she had tried to refuse but after a while the fourth applicant had managed to convince her. Finally, she had consented to participate in the plan since she needed money in order to repay some debts, and later added that she also needed it to pay for medical treatment in connection with the multiple sclerosis from which she suffered. She admitted that on 18 October 2009, while accompanied by the fourth applicant, she had intentionally “rear-ended” the first applicant’s car. She recalled that the first applicant had been accompanied by his mother (the third applicant) and that after the accident he had pretended to be upset and had called the police in order to make the whole thing more credible. She told the police that in the afternoon or the day after, the fourth applicant had gone to the hospital and that almost one year later, the first applicant had given her approximately 5,000 euros (EUR).
8. On 13 July 2012 G. appeared voluntarily before the police. He added to his statement that a few days after the accident of 28 September 2011 the first applicant had given him EUR 2,000 in cash, as agreed previously.
2. The criminal investigation No. 564/RNR/2012
9. By a report of 31 July 2012, signed by a police officer, P., the police informed the investigating judge (CommissariodellaLeggeInquirente) about the results of the investigation and on an unspecified date the judge opened a criminal investigation for fraud.
10. On 6 August 2012 the investigating judge classified the case file. No reasons were provided.
11. By a letter of request of 22 August 2012 the investigating judge requested the Italian judicial authorities to supply the phone records (tabulatitelefonici) showing the list of the phone numbers called by the persons involved in the investigation, for the period of a month prior to the car accidents.
12. On 31 August 2012 the investigating judge questioned both G. and L., without the presence of the other accused persons but, this time, with the assistance of their lawyer. The judge informed G. and L. in person of the charges against them (judicial notice). They confirmed their previous incriminating statements and added some other details. In particular, G. added that when he had been summoned for questioning by the police, he had sent an email to the first applicant asking him what was going on and that on that same day the first applicant had called him saying that it was a matter of little importance and that he could even not show up at the questioning, but that in any case he [G.] had to deny any connection with the first applicant and had to confirm that the accident had been real.
13. L. added to her previous statement that approximately two weeks previously [namely, mid-August] the fourth applicant had showed up at her work place in Italy. He had told her that he had been informed by the first applicant about the investigation ongoing in San Marino and requested her to retract her previous statements and to claim that the accidents had been real (confermare la dinamicadelsinistro). L. stated that she had replied that changing her version of the facts would have made her nervous and she had therefore cut him short.
14. On 20 November 2012 C., S. and F., three persons involved in the first car accident, testified before the investigating judge that it had been a real accident and that they did not know the first and second applicants.
15. In consequence, on an unspecified date the charge in connection with the first car accident was dropped.
16. On 17 July 2013, in execution of the above-mentioned letter of request, the Italian judicial authorities sent the requested phone records.
17. On 29 November 2013 the investigating judge declassified the case file.
18. On 5 December 2013 judicial notices were sent to all the applicants by registered mail to their personal addresses which were known to the authorities (given that no legal counsel had yet been appointed). By means of the same judicial notices, the judge also summoned the applicants to appear for questioning on 20 February 2014.
19. By a handwritten submission of 11 December 2013 submitted to the investigating judge, R.F., a lawyer, informed the investigating judge that he was acting as counsel for the first applicant and that the latter had chosen the address of R.F.’s law firm as the address for service of notifications.
20. On an unspecified date the judicial notices sent to the second and third applicants were returned to the sender by the postal service with a notification that delivery had failed since the intended recipients could not be found (irreperibilitàdeldestinatario).
21. By a joint written submission of 20 February 2014, R.F., the lawyer of the first applicant and that of the lawyer representing the fourth applicant, the former also in the name of the second and third applicant, requested that the investigation be renewed in order for them to cross‑examine the witnesses already heard and L. and G.
22. In addition, R.F. informed the judge that the police investigation had been directed by a police officer, J.B., who held a grudge against the first applicant and could not be considered impartial. In particular, at the time of the police investigation, criminal proceedings on the basis of a complaint by the first applicant for defamation had been ongoing in Italy against J.B. and three other named officers of the Civil Police, for acts allegedly committed to the detriment of the first applicant. Furthermore, the fourth applicant had been the legal counsel of the first applicant in those proceedings.
23. As to the questioning scheduled for that day, the two lawyers stated in the written submission that all the accused persons availed themselves of their right to remain silent but that they were willing to be questioned once the above-mentioned investigative activities had been repeated.
24. By a decision of 26 February 2014 the investigating judge rejected the request put forward by counsel. The judge, inter alia, specified that (i) G. and L. had made their accusations not only to the police but also before her and only the latter statements had been used; (ii) as to the alleged animosity of J.B., the first applicant had not complained about any specific shortcomings in the investigation able to show that it had been carried out irregularly; (iii) co-accused (generally speaking) were not allowed to take part in the questioning of other accused persons at the investigation stage; (iv) it was not necessary to re-examine C., S. and F., since they had testified about the car accident of 26 May 2008, which had not been included in the judicial notice, the charges having been dropped; (v) all the accused persons had been repeatedly summoned for questioning but they had never shown up; and (vi) the accused persons had just applied for a generic repetition of the whole investigation, without submitting any specific request.
25. On the same day the investigating judge indicted all the applicants, as well as L. and G., for the offence of fraud to the detriment of insurance companies, under Articles 73 and 204 § 3 (2) of the Criminal Code. In particular, the first and third applicants were charged in respect of both the car accidents; L. and the fourth applicant were charged in respect of the accident which had taken place on 18 October 2009; and G. and the second applicant were charged in respect of the one that had taken place on 28 September 2011.
3. The trial
26. At a hearing of 17 November 2014 the first-instance judge (CommissariodellaLeggeDecidente) declared the second, third and fourth applicants to be wilfully seeking to evade trial (contumaci), given the regularity of the notifications and the lack of any justifications for their absence. The judge also noted, inter alia, that counsel for the second and third applicants (R.F.), as well as counsel for the fourth applicant, were present.
27. During the hearing R.F. submitted a state certificate of residence of the second and third applicants with addresses different from those to which the judicial notices had been sent. He further claimed that the judicial notices in respect of the second and third applicants had to be declared invalid since they had been sent to the address of his law firm and not to the home address of the second and third applicants, who at that time had not yet indicated an address for service (elezione di domicilio).
28. At the same hearing the first applicant’s legal counsel submitted two sheets of paper containing messages which he had found on the windscreen of his car. In particular, the first sheet of paper, which was signed “a friend”, read: “They have duped (lavorato) G. already, now it is your turn. Watch out they want to make you pay for this”, while the second one read: “We have convinced both him and the judge, he will say what we want him to say. You are finished”. The first applicant reiterated that the police investigation had been irregular, given that some police officers (inter alia, the above‑mentioned J.B.) held a grudge against him.
29. By a decision of 28 November 2014 the first-instance judge acknowledged that, in the light of the submitted certificates of residence, the second and third applicants had moved their residence to a different address (in a different town) on 9 August 2013. Indeed, the judicial notice had been sent to both the address of R.F.’s law firm and the second and third applicants’ old home address. Nevertheless, the judge rejected the request to declare the judicial notice invalid, noting that it had been sent to the second and third applicants’ known residential address (residenza nota) on the basis of what had emerged from the acts of the proceedings. According to the judge, in the absence of any element showing that the second and third applicants had changed their address, it was not the responsibility of the investigating judge to carry out unnecessary checks. Moreover, the relevant law provided only that the judicial notice be dispatched, without requiring verification of the actual receipt thereof.
30. As to the alleged animosity between the first applicant and the named police officers (including J.B.), the judge considered that, even if it were true, all the reports made by the police in the course of their investigation had been signed by a certain officer, P., and not by any of the officers indicated by the first applicant. It was true that J.B. had taken part in G.’s questioning but he had done so in the presence of another named officer. In any case, G. had been heard also by the investigating judge, thus the applicant’s request was unfounded and dilatory.
31. On the same day, by means of a written submission, R.F., again identifying himself as counsel for the first, second and third applicants, requested that sixteen witnesses (including J.B.) be heard.
32. On 13 February 2015 officer P. testified that it had been him who had instructed the officers (who had carried out the investigation) to question L. and G. but not the applicants, since the former were the only persons involved in the case who had not had repeated car accidents (recidivaamministrativa).
33. On 11 March 2015 S.P. (the other police officer who had questioned G. during the police investigation) testified that J.B. had also taken part (with her) in the questioning of G. and he had also put to him some questions, although he had not been on duty that day. S.P. added that it had been her who had convinced G. to confess.
34. At the same hearing officer P.G. testified that he had tasked J.B. with the questioning of L., since he (P.G.) had had some urgent tasks to carry out on that day. However, while J.B. had been carrying out the questioning, P.G. had been present in a connecting room.
35. On the same day legal counsel reiterated their request to cross‑examine J.B. The judge rejected their request, considering it irrelevant to the proceedings.
36. By a judgment filed in the relevant registry on 19 August 2015 the first‑instance judge (CommissariodellaLeggeDecidente) found all the accused persons guilty of the offence charged. The judge sentenced the second and fourth applicants to two years’ imprisonment and one year’s prohibition from holding public office and exercising political rights; the third applicant to two years and two months’ imprisonment and one year and two months’ prohibition from holding public office and exercising political rights; and the first applicant to two years and five months’ imprisonment and one year and five months’ prohibition from holding public office and exercising political rights.
37. The judge did not apply (to L. and G.) the domestic law provision whereby, if an accused had made a “useful and spontaneous confession”, this could serve as a mitigating circumstance (see relevant domestic law). In the judge’s view the application of such provision to the position of L. and G. would have caused a substantial injustice to the detriment of the other accused persons. According to the judge, the reduced penalty deriving from the mitigating circumstance would not have been determined by a personal initiative on the part of L. and G., but by the decision of the police to summon for questioning only some of the accused persons (L. and G.), and not the others (all the applicants). This had made it impossible for the persons who had not been summoned to have an opportunity to deliver a useful confession equal to that provided to L. and G.
38. On an unspecified date an information notice that the first-instance judgment had been delivered (avviso di deposito) was sent by post to the second and third applicants at the address of R.F.’s law firm.
4. The appeal proceedings
39. The first and fourth applicants, as well as G. and L., appealed.
40. The first and fourth applicants complained that the investigating judge had not provided any reasons for her decision to classify the case file, thus contravening the relevant law. Moreover, the maximum duration of the classification regime had been exceeded, since the file had not been disclosed to the applicants for eighteen months. According to the first and fourth applicants, the secrecy of the investigation had breached their right to defence, in particular in the light of the fact that they could not participate in the hearings of witnesses before the investigating judge. In addition, they complained that the investigating judge had discriminated against them since, unlike L. and G., they had been unable to take part in the investigation and to have access to the case file, which had been classified. They also complained that, after the declassification of the file and prior to the indictment, they had had only one month and a half to prepare their defence. Moreover, at the trial the judge had rejected their request to cross‑examine L. and G., the questioning of whom was essential since their accusations were the only evidence against the applicants. For all those reasons they requested that the investigation (in particular the part which had been carried out under the classification regime) be declared null and void and that it be restarted.
41. The first and fourth applicants also claimed that the acquisition of the phone records (list of phone calls) concerning their mobile phones had been illegitimate given that the European Court of Justice, by a judgment of 8 April 2014, had declared Directive No. 2006/24/EC on the retention of data, invalid. In their opinion, the acquisition of their personal data had also been in breach of Article 8 of the Convention. In particular, the fourth applicant emphasised that the data collected from the Italian authorities regarded phone calls between him and the first applicant in 2011, during a period in which the former had been legal counsel for the latter in the above‑mentioned criminal proceedings against J.B. and in other proceedings. Thus, those phone calls had been made two years after the car accident of which the fourth applicant was charged (which dated back to 2009), and for this reason they were not relevant to his case.
42. Lastly, the first and fourth applicants reiterated their request to hear J.B. for the reasons mentioned previously.
43. L. requested the application of the provision of domestic law whereby a “useful and spontaneous confession” could serve as a mitigating circumstance and, consequently, in the light of the applicable reduced penalty, that the offence be declared time-barred. She specified that her statements before the police (made without the presence of her legal counsel) had been made exclusively for the purpose of obtaining a reduced sentence, an opportunity which had been proposed to her [by the police].
44. At an oral hearing of 19 September 2016 R.F. stated that the second and third applicants had never indicated the address of his law firm as their address for service.
45. By a judgment of 10 October 2016, published on 12 October 2016, the Judge of Criminal Appeals upheld the first-instance judgment concerning all the applicants, but modified it in respect of L. by dismissing her case as it had become time-barred. The judge further declared G.’s appeal inadmissible given that after having submitted his appeal, he had expressly withdrawn it.
46. The judge declared the first-instance judgment enforceable with respect to the second and third applicants, who had been tried in absentia and had not appealed.
47. According to the judge, notices (avvisi) had been duly served, since they had correctly been served on R.F. Indeed, they had been sent to the second and third applicants’ address for service, namely that of their legal counsel, R.F. In reply to what R.F. had stated at the appeal hearing (see paragraph 29 above), the judge observed that R.F. had been served with multiple documents addressed to the second and third applicants, namely the summons in order to be questioned on 11 February 2014, the bill of indictment and the information notice that the first-instance judgment had been delivered. Nevertheless, R.F. had never submitted any observations on the matter. The judge noted that it had been only at the trial hearing of 17 November 2014 that R.F. had argued that the judicial notice had been invalid since it had been served at his law firm’s address and not at the home address of the second and third applicants. In the opinion of the judge, in San Marino the rules concerning the communication and notification of judicial documents were based on the principle of informality (principio di libertàdelleforme – namely, no specific formalities were required in order for a notification to be valid) and the principle of fairness and correctness. During the first-instance proceedings R.F. had acted as if he had been authorised to accept service (domiciliatario), causing the bailiffs to legitimately believe that he was acting in such role. For this reason, the statement that R.F. had made at the appeal hearing was unfounded and had contravened professional ethics.
48. As to the fact that the investigating judge had not given any reasons in order to justify her decision to classify the file, the appeal judge acknowledged the breach of the relevant law but explained that the law did not provide that such a violation determined the nullity of the ensuing acts. In addition, the decision to declassify the investigation only for some of the accused persons and not for the applicants had to be considered fully legitimate, since reasons for a classification regime could exist for some of the accused persons and not for others. Moreover, the relevant law expressly afforded the investigating judge the power to classify only some specific acts of the proceedings (partial classification).
49. As to the fact that neither the applicants nor their defence had taken part in the questioning of L. and G. during the investigation and that the latter had not been cross-examined at the trial, the appeal judge considered that (i) the investigating judge had legitimately questioned L. and G. without the presence of the applicants, since for the latter the investigation had been classified at that time; and (ii) the statements of G. and L. before the investigating judge by which they had accused the applicants had been correctly admitted as evidence and used in the judgment, given that the Code of Criminal Procedure did not contain any rule on the admissibility of the evidence to be used. In the domestic system the admissibility of evidence depended solely on the free opinion (libero convincimento) of the judge as to its reliability. In order to assess the reliability of evidence, a judge had solely to take into account the ways in which the evidence in question had been acquired (modalità di formazionedellaprova); however, he was not obliged to disregard it, irrespective of how it had been obtained.
50. As to the admissibility as evidence of the phone records sent by the Italian judicial authorities, the appeal judge considered that the judgment cited by the applicants, even though of great interest, did not have any influence on the rules of admissibility of evidence in San Marino, since the domestic system did not provide for any restrictions or regulations on the point. A direct application of that judgment in the domestic system of each Member State – in the sense of forbidding the acquisition of data concerning phone calls – was neither evident (concesso) nor obligatory. In any case, the Italian judicial authorities – who had supplied the information ‑ had not conformed to that judgment either. Thus, such plea was manifestly unfounded.
51. On the merits, the judge considered that it was not true that the only evidence against the applicants had been the accusations (chiamata in correità) of L. and G. On the contrary, those accusations had just confirmed a series of unequivocal elements which had been listed in the indictment and which would have been sufficient on their own to consider the commission of the fraud plausible on a logical level. The phone calls between the first applicant and G. on the days prior to the car accident of 28 September 2011 had not only confirmed, beyond reasonable doubt, G.’s accusation against the first applicant, but had also shown that the car accident that had occurred two years earlier (on 18 October 2009) between the first and fourth applicants had not been a matter of pure chance. This was true, a fortiori, in the light of the fact that an alternative explanation (which not even the first applicant had attempted to provide) would have been completely implausible. It was not credible that the first applicant had been involved in two car accidents with people with whom he was already acquainted, involving his relatives and causing the same injuries, always while he was in the same street in San Marino. Moreover, the numerous phone calls between the first and fourth applicants in 2011 surely did not concern the car accident of two years earlier. In any case, it had confirmed the existence of a well-established relationship, albeit also a professional one, between the two accused. Therefore, the accusations of G. and L. had not represented unexpected and decisive revelations but had just confirmed that the first applicant could not be considered so unlucky as to have had two such peculiar car accidents.
52. As to the alleged animosity between the first applicant and the police officer, J.B., even accepting that such circumstance was true, in the judge’s view it did not undermine the credibility of the accusers G. and L. In particular, it was not credible that J.B. had made up the offence notice, since the car accidents (with all their above-mentioned particularities) had really happened and the insurance companies had actually paid compensation. Nor was it credible that L. and G., who did not hold any personal resentment against the first applicant, had confessed to an offence for the sole purpose of backing officer J.B. in his alleged “revenge”.
53. As to the position of the fourth applicant, who had been involved in the accident of 18 October 2009 while travelling in the car which had caused it, irrespective of his material contribution to the sham (messinscena), he had acted as an intermediary between L. and the first applicant. He had dragged L. into the criminal plan to avoid directly taking part in it, given his friendship with the first applicant and his parents. Despite those strong indications, the fourth applicant had not even bothered to attend trial to offer a different version of the facts.
54. Lastly, the judge took L.’s confession into account as a mitigating circumstance, as a result of which, due to the less severe punishment, the offence became time‑barred.
B. Relevant domestic law
1. Criminal Code
55. Article 90 § 2 and Article 204 of the Criminal Code, read, in so far as relevant, as follows:
Article 90 (mitigating and aggravating circumstances)
“(2) The judge may apply a penalty reduced by one degree (la pena di gradoinferiore) … if a useful and spontaneous confession has been given (quando la confessionesiastataspontaneamenteedutilmenteresa)”.
Article 204 (fraud)
“Whosoever secures an unfair profit for themselves or for others, by misleading another through deception or misrepresentation, shall be punished by imprisonment of the second degree as well as by a daily fine or prohibition of the second degree …
The above-mentioned penalty is increased by one degree:
…
if the offence was committed in order to obtain compensation from an insurance company …”
56. In a judgment of 9 September 2010 (in criminal proceedings no. 350/2007) the Judge of Criminal Appeals stated that the usefulness of a confession had to be assessed in the light of its evidentiary value (capacitàprobatoria) as to the constitutive elements of the offence. The usefulness of the confession had to be substantial, in the sense that through the confession the judge had to be able to obtain evidence of a fact that otherwise would have been impossible or difficult to prove.
2. Code of Criminal Procedure
57. Articles 212, 213, 214 of the Code of Criminal Procedure concerning the resetting of expired time-limits, make up Chapter XXVI of the Code of Criminal Procedure. Those articles and Article 229 of the Code of Criminal procedure, concerning the nullity of acts, in so far as relevant, read as follows:
Article 212
“The Attorney General, the private parties and their counsel, for whom a peremptory procedural time-limit has expired, may request the resetting of that time‑limit (rimessioneneltermine), if they demonstrate that it was impossible to comply with it for unforeseeable circumstances or owing to force majeure.
The resetting of the time-limit shall be conceded also if the parties demonstrate that they have not had knowledge of an act from which the time-limit started to run, owing to an irregularity in the notification procedure (per irregolaritàdellanotificazione).
The same time-limit cannot be reset more than once.”
Article 213
“The application for the resetting of the time-limit shall be peremptorily lodged with the CommissariodellaLegge within five days from the day on which the impediment ended or the party had knowledge of the act … The decision of theCommissariodellalegge shall be final …The resetting of the time-limit determines the renewal of the acts carried out after the expiry of the time‑limit.”
Article 214
“If the accused who was absent (contumace) during his first questioning declares that he had not had knowledge of the judgment against him, the judge shall read the judgment to him before putting any specific question to him. Subsequently the procedure should be in accordance with the preceding articles”.
Article 229
“On pain of nullity, compliance with Article 17 and the provisions set out below are mandatory:…
(c) the intervention and the defence of parties …
The nullity of an act is extended to the acts arising from it. Such nullity must be pleaded by the Attorney General or by the parties, or raised by the judge of his own motion, prior to the conclusion of the instance during which it had occurred.
…”
3. Law No. 93/2008
58. Law no. 93/2008 concerning criminal procedure rules and the confidentiality of criminal investigations reads, in so far as relevant, as follows:
Section 3 (Right to defence)
“(1) Except in the cases set out in section 5 below, the investigating judge carries out all the investigative activity in general, including that related to the collection of evidence, particularly its acquisition (formazione), while safeguarding the rights of the accused, the prerogatives of the Attorney General and the rights of private parties as protected by criminal law.
(2) The accused, assisted by a legal representative, and the Attorney General have the right to present their own defence, submissions and applications. They may also examine and make copies of all the acts in the proceedings, including the report of the crime. The investigating judge must ensure that the parties can participate or be represented at each stage of the investigation.
(5) The judicial police are tasked with searching for elements useful to the investigation, on their own motion, in compliance with the guarantees provided by law, unless a judge has given different and specific orders (salvo diverse e specificheindicazioniimpartite dal giudice). In any case, the offence notice and all the elements useful to the ongoing investigation must be communicated to a judge within the shortest possible time.”
Section 4 (Judicial notice)
“(1) Within thirty days of the reporting of a crime … save for the exceptions set out in section 5 below, the investigating judge must personally inform the accused and the Attorney General of the legal and factual elements of the crime in respect of which proceedings are being carried out …”
(2) The judicial notice must be served at the seat of the courts, in the presence of the accused … the accused must sign a special report (appositoverbale).
(3) If the judge has not been able to summon the accused, or the accused has not appeared or not signed the report mentioned in the paragraph above within thirty days, the judge, within the next thirty days, must by means of a registered letter … communicate to the accused and the Attorney General, concisely but clearly, the legal and factual elements of the crime in respect of which proceedings are being carried out …”
Section 5 (Investigation and investigative acts under temporary classification or as an urgent matter)
“(1) Where there are specific reasons of an exceptional nature which lead to a consideration that the investigation as a whole can only be carried out successfully if classified, the investigating judge may by means of a reasoned decision order classification on a temporary basis, thus derogating from the provisions of sections 3 and 4 above.
(2) The same procedure applies when only some of the acts should be subject to temporary classification, or when the necessity for such an order emerges subsequently.
(3) The application of temporary classification to an investigation and investigative acts … may last only as long as is strictly necessary for the performance of the relevant acts; it may not in any event exceed six months from the registration of the report of the crime and may be extended only once, for a period of another three months at maximum, if there exist serious reasons for so doing.
(4) In cases where an investigation has been classified, the time‑limits for the judicial notice start to run again after that regime has come to an end.
(5) When classification applies only in part, the judge, through the registrar, provides for the separate custody of such documents and the order providing for such a regime in a separate file, until they have been completed (completamentodegliatti).
(6) In the event of the acquisition of evidence as a matter of urgency, to which classification does not apply and in respect of which notification to the parties is mandatory, the investigating judge must communicate the judicial notice to the accused and the Attorney General if that has not already been done … .
(7) In the event of an investigation being classified where the investigating judge has called for judicial assistance from foreign authorities, the time‑limit for a regime of the kind mentioned in subsection (3) above is suspended from the day the letter of request is sent until a reply has been received.”[1]
COMPLAINT
59. The four applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that their right of defence was violated since they did not have the possibility to cross-examine their accusers (and co-accused) L. and G. either during the investigation or at the trial.
60. The first applicant complains under Article 6 § 1 that the Attorney General in the instant case already had the role of judge on the merits in civil proceedings which the applicant claimed concerned the same facts and which were ongoing between the applicant (as defendant) and a third person.
61. Invoking Article 6 § 1 and Article 2 of Protocol No. 7, the second and third applicants complain of a violation of their right to defence since they were never notified of the criminal proceedings against them. They did not receive a judicial notice, nor did they appoint a lawyer or indicate an address for service. According to them, they were not even served with the first-instance judgment, therefore the appeal judge declared enforceable a judgment they were not aware of and against which they did not have the possibility to lodge an appeal. They also complain that the right to appeal against their conviction was not granted to them since they had no knowledge of the first-instance judgment.
62. The first, second and third applicants complain under Article 6 § 1 of the Convention and the fourth applicant complains under Article 6 § 3 (a) and (b) of the Convention that the proceedings against them were not fair, for various reasons:
(i) The applicants complain that the investigating judge kept the investigation classified only for the applicants until 2 December 2013, without giving any reasons and exceeding the maximum time-limit of the classification regime, so contravening domestic law. Thus they argue that any evidence collected should have been discarded. As a result they also did not have adequate time for the preparation of their defence (namely two months), unlike their co-accused.
(ii) The applicants also complain that the police investigation was directed by a police officer (J.B.) holding a grudge against the first applicant, casting doubt as to his impartiality. Nevertheless, the domestic courts denied them the possibility to cross-examine J.B. at the trial. According to the applicants, J.B.’s testimony would have been essential since many issues on the regularity of the investigation had emerged and their conviction was based uniquely on the accusation made by L. before J.B.
(iii) The first, second and third applicants seem to complain, albeit in an unclear manner, that G. and L. were treated more favourably when they had been induced to make the statements incriminating themselves as well as the applicants (during questioning before the police and in the absence of legal counsel) on the basis of the promise of a reduced sentence. The same opportunity was not granted to the first, second and third applicant. At the same time, they also seem to indicate that there were irregularities in the way those witnesses’ statements were taken.
63. The fourth applicant also complains under Article 8 of the Convention of a violation of his private life. According to the fourth applicant, the acquisition of his phone records was illegitimate since such records corresponded to a period of time subsequent to that of the impugned events, and therefore they did not regard the facts of which he had been accused. In addition, in the opinion of the fourth applicant, the acquisition of his phone records was invalid in the light of a Court of Justice of the European Union (CJEU) judgment of 8 April 2014, which invalidated Directive No. 2006/24/EC.
THE LAW
A. Joinder of the applications
64. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications given their similar factual and legal background.
B. Article 6 §§ 1 and 3 (d)
65. The four applicants complain under Article 6 §§ 1 and 3 (d) of the Convention that their right of defence was violated since they did not have the possibility to cross-examine their accusers (and co-accused) L. and G., either during the investigation or at the trial. The relevant provisions read as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time by an independent and impartial tribunal established by 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;”
66. In so far as this complaint concerns the first and fourth applicants who participated in the trial, either in person or through legal counsel, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of it to the respondent Government.
67. In so far as the complaint concerns the second and third applicants, the Court notes that these applicants were not present in person at the trial and claim that they did not participate in the proceedings through counsel since they had given no such mandate. In consequence, unlike the first and fourth applicant, they did not ask to have L. and G. heard, nor did they appeal against that judgment. Nor have these two applicants pursued relevant remedies concerning the fact that they were tried in absentia.
68. It follows that their complaints must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
C. Other alleged violations of the Convention
69. The second and third applicants further complain under various provisions of the Convention and its Protocols (see paragraphs 60-63 above).
70. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the applications must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to adjourn the examination of the complaints concerning the possibility to cross-examine the co-accused in respect of applications nos. 26581/17 and 31024/17, concerning the first and fourth applicants;
Decides to disjoin applications nos. 26582/17 and 26583/17 from the others and declares them inadmissible.
Done in English and notified in writing on 15 February 2018.
Renata Degener Linos-Alexandre Sicilianos
Deputy Section Registrar President
______________
APPENDIX
| No. | Application no. | Lodged on | Applicant
Date of birth Place of residence Nationality |
Represented by |
| 1. | 26581/17 | 31/03/2017 | David ODDONE
23/09/1979 Rimini Italian |
Stefano PAGLIAI |
| 2. | 26582/17 | 31/03/2017 | Maurizio ODDONE
15/04/1946 Pesaro e Urbino Italian |
Stefano PAGLIAI |
| 3. | 26583/17 | 31/03/2017 | Anna LOMBARDOZZI
01/04/1948 Pesaro e Urbino Italian |
Stefano PAGLIAI |
| 4. | 31024/17 | 11/04/2017 | Alessandro PECCI
26/11/1979 San Clemente Italian |
Filippo COCCO |
[1]. Amendment introduced by means of Law no. 104 of 30 July 2009
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