The testimony of the victim in the pre-trial is not enough to convict the accused. His presence in the audience is required.
JUDGMENT
Cafagna v. Italy 12/10/2017 (no. 26073/13)
SUMMARY
Robbery on the street. The victim testified before the police and identified the accused by photographers. In the audience, the witness never appeared, despite the accused’s wish to examine him. The witness was of unknown residence and could not be found. Thus neither the Court nor the applicant had the opportunity to examine him during the trial in order to assess the credibility of his statements. Although there was a thorough examination by the court, this was not enough to provide the information that could be gathered from a confrontation in a public hearing between the accused and his addressee. Infringement of the right to a fair trial.
PRINCIPAL FACTS
Article 6 par. 1 and 3
PRINCIPAL FACTS
The applicant, Gaetano Cafagna, is an Italian national who was born in 1970 and lives in Barletta (Italy).
On 3 June 1996 an Italian national, C.C., lodged a criminal complaint against Mr Cafagna, alleging that the latter and an accomplice had attempted to rob him in the street. C.C. claimed that when he had tried to run after them, he had been punched in the face by Mr Cafagna. When he made his statement of complaint, which was taken by L.R., a member of the carabinieri, C.C. formally identified Mr Cafagna and his accomplice from photographs.
On 13 September 1996 the public prosecutor requested that evidence be heard from C.C. and that an identification parade be held. Despite being summoned and compelled to appear on several occasions, C.C., who according to his parents no longer lived with them, could not be traced and never confirmed before a court his allegations concerning his assailant’s identity.
In a judgment of 11 April 2005 the District Court sentenced Mr Cafagna to one year and four months’ imprisonment. It found that the precise and detailed statement made by C.C. to the carabinieri was sufficient to establish Mr Cafagna’s guilt. In the court’s view, the fact that a witness’s whereabouts were unknown made it “objectively impossible” to examine him at the hearing; the court was therefore entitled, in determining the charges, to use any statements made in advance of the trial. The District Court also found that Mr Cafagna’s conviction rested on other evidence arising out of the testimony given by L.R., the member of the carabinieri who had taken C.C.’s statement.
Mr Cafagna appealed against the judgment, which was upheld by the Court of Appeal. He then lodged an appeal on points of law. In a judgment of 17 October 2012 the Court of Cassation dismissed his appeal, finding that C.C., who had been convicted in absentia in another set of criminal proceedings, could not be traced, that this fact could not have been foreseen at the time of his statement to the carabinieri, and that the District Court had therefore been entitled to admit C.C.’s statements in evidence.
THE DECISION OF THE COURT
Article 6 §§ 1 and 3 (d)
The Court observed that C.C. had been questioned by the carabinieri but had never appeared before the trial court. Therefore, neither the latter nor the applicant had been able to observe him during questioning in order to assess his credibility and the reliability of his statements.
The Court also noted that the domestic courts had based their decisions not just on C.C.’s statements but also on the testimony of the carabiniere L.R. It observed that the Court of Appeal had examined C.C.’s credibility with care before concluding that his statements were sufficiently reliable.
Nevertheless, the Court considered that the examination by the domestic courts of the evidence of the applicant’s guilt had not been sufficient, by itself, to compensate for the fact that the witness had not been questioned by the defence. However thorough the examination conducted by the trial court, it was not capable of providing the information that could be gleaned from a confrontation at a public hearing between the accused and his or her accuser, and hence of testing the reliability of the evidence. The Court therefore concluded that Mr Cafagna’s defence rights had been restricted in a manner incompatible with the requirements of a fair trial, and found a violation of his right to a fair trial.
Just satisfaction (Article 41)
The Court held that Italy was to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.
Separate opinion
Judge Wojtyczek expressed a separate opinion which is annexed to the judgment(echrcaselaw.com editing).
