The ECHR ruling of July 08, 2021 in the case "Maestri and Others v. Italy" (Complaint No. 20903/15 and 3 other complaints).
In 2015, the applicants were assisted in the preparation of complaints. Subsequently, the complaints were combined and communicated to Italy.
The case successfully examined complaints about the inability of the Court of Appeal to appoint a new hearing in the case of the accused before canceling the earlier acquittal by the court of first instance. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention.
CIRCUMSTANCES OF THE CASE
The Court of Appeal did not hold a new hearing for the applicants and prosecution witnesses before (1) leaving unchanged the applicants' guilty plea of aggravated fraud and criminal conspiracy and (2) quashing the acquittal of the first instance court against the applicant Maestri.
LEGAL ISSUES
Regarding compliance with paragraph 1 of article 6 of the Convention.
(a) Regarding complaints NN 20973/15, 20980/15 and 24505/15. The Court of First Instance found the six applicants guilty of aggravated fraud after questioning a number of witnesses and collecting other evidence, and acquitted these applicants on the count of criminal conspiracy. The Court of Appeal upheld the verdict, and also found the applicants guilty of criminal conspiracy, changing the verdict of the court of first instance in this part.
Having found the applicants guilty of criminal conspiracy for the first time, the Court of Appeal, without re-establishing the factual circumstances of the case and without interpreting the testimony of witnesses, assessed the composition of the crime differently.
The actual circumstances of the acts allegedly committed by the applicants were established by the court of first instance on the basis of written evidence and witness testimony, and this led to the recognition of the applicants guilty of fraud. The fact that the Court of Appeal applied a different legal qualification of the circumstances already established by the lower court, and came to a different conclusion about the presence of elements of the corpus delicti in the form of criminal conspiracy in addition to fraud, could not invalidate the conclusion of the court of first instance.
In this regard, according to the European Court, it could not be argued that, without conducting new interrogations of prosecution witnesses, the Court of Appeal restricted the applicants' right to defense. In addition, the applicants did not present any evidence that would suggest that a new hearing with the participation of the mentioned witnesses would be important for the assessment of the issues under consideration.
Further, the European Court had to make sure whether the issues referred to the Court of Appeal could be considered during a fair trial without a direct assessment of the testimony given personally by the applicants.
Firstly, with regard to the role of the Court of Appeal and the nature of the disputes before it, the said court, according to the Italian Code of Criminal Procedure, had the authority to issue a new verdict on the merits of the case, having considered the issues of facts and law and carried out a comprehensive assessment of the question of the guilt or innocence of the applicants. Within the framework of the complaint filed by the parties, the court could either decide to leave unchanged or cancel the verdict of the lower court by collecting new evidence, if it was appropriate. In addition, the Court of Appeal could change the legal qualification of the facts and apply a more severe degree of punishment or another type of punishment. Thus, the ordinary proceedings in the Court of Appeal were governed by the same rules as the consideration of the case on the merits, and were conducted by a court with full powers.
In addition, by changing the verdict of the lower court and resolving on the merits the issue of the applicants' guilt in criminal conspiracy, the Court of Appeal also considered the applicants' intentions and for the first time ruled on subjective circumstances, ruling, in particular, that despite the lack of legal education, the applicants could not fail to realize that the companies' actions were illegal. In the opinion of the European Court, such an assessment, due to its characteristics, implied a certain position regarding the facts that were decisive for determining the applicants' guilt. In cases where the conclusion of the lower court concerns subjective elements, it is impossible to carry out a legal assessment of the actions of the accused without first having to prove that the act actually took place, which necessarily entailed clarifying the intent on the part of the accused in relation to the alleged acts.
Taking into account the limits of the consideration carried out by the Court of Appeal and the significance of the outcome of the proceedings for the applicants, the issues resolved by the Court of Appeal required a direct assessment of the defendants' testimony.
In this regard, the European Court had to establish whether in the present case the applicants had a proper opportunity to be heard and to personally voice arguments in their defense in the Court of Appeal.
The applicants, who were present during the court sessions in the court of first instance and used the help of their chosen lawyers, decided not to attend the court session in the Court of Appeal, despite the fact that they were summoned there as defendants by summons in accordance with procedural requirements. Consequently, it can be considered that the applicants have unconditionally waived their right to take a personal part in the proceedings before the Court of Appeal.
As for the question of whether the absence of the applicants at the Court of Appeal session, in addition to the refusal of the right to be present at the court session, was also a refusal of the right to be heard by the Court of Appeal, the fact that the defendant refused the right to be present at the court session in itself did not exempt the Court of Appeal, which conducted a comprehensive assessment of the issue on the guilt or innocence of the defendant, from the obligation to directly evaluate the evidence presented by the defendant personally, if he insisted on his innocence and did not explicitly waive the right to appeal to the court in person. In such circumstances, the judicial authorities had to take all necessary positive measures to guarantee the interrogation of the defendant, even if he was not present at the hearing, did not apply for permission to appeal to the Court of Appeal and did not object through his lawyer to the court ruling on the merits of his case.
In this regard, the Italian Court of Cassation followed these principles when it ruled that the fact of the case being considered in absentia could not be considered as a waiver of the defendant's right to be heard by the Court of Appeal, if the court did not decide to interrogate the defendant, and appointed a hearing for this purpose. According to Italian law, a summons to the first court hearing is not equivalent to an order to testify in court. In this connection, with regard to complaint No. 20903/15, the applicant Maestri, although present at the meeting, was not questioned by the Court of Appeal.
Consequently, it cannot be admitted that the applicants explicitly waived their right to appear before the Court of Appeal in the present case, given that under Italian law such a waiver was possible only if the applicants had been ordered to give evidence, and they did not do so, or if they had not appeared at the court appointed for this purpose. the meeting.
In addition, it followed from the comments of the Italian authorities that the applicants could make arbitrary comments on any issues they chose, since they had the right to speak freely at any time without waiting for questions from the court or other participants in the proceedings, in accordance with the right of the accused to remain silent and the right not to testify against themselves. However, the European Court was not convinced that the defendants' opportunity to make the aforementioned statements could satisfy the requirement that the court had to interrogate the defendants personally about the facts and other points that were decisive for determining the guilt of the defendants. It could not reasonably be argued that in order to defend themselves, the defendants had to go to court on their own initiative and decide to discuss the facts in connection with which they were acquitted by the court of first instance. The defendants were not interested in asking the Court of Appeal to re-evaluate the evidence on the basis of which they were acquitted by the court of first instance. It was the Court of Appeal that had to take positive measures in this regard.
In this regard, the Italian Court of Cassation ruled that the Court of Appeal, which was preparing to overturn the acquittal and for this purpose decided to resume the judicial investigation and interrogation of witnesses (according to the esame procedure (Esame (it.) - interrogation of witnesses, examination, investigation), was also obliged to appoint a hearing of the personal testimony of the defendants, if they were crucial to the case. The Court of Appeal had every right to resume the judicial investigation and to appoint an interrogation of the applicants in order to give them an appropriate opportunity to state their position on such aspects as intent to commit a criminal conspiracy - a key point in determining whether the applicants were guilty of this crime.
On the other hand, with regard to the Italian Court of Cassation's argument that the fact that the defendant was the last to address the court was sufficient, the Court noted that, although the defendant's right to address the court last in turn undoubtedly mattered, it could not be compared with the right to be heard in person during the trial proceedings.
Taking into account the entire proceedings in the case as a whole, the role of the Court of Appeal and the nature of the issues to be resolved, the fact that the applicants were convicted of criminal conspiracy, not being able to present their arguments during the consideration of the case (esame) by the Court of Appeal regarding the facts that were decisive for establishing their guilt or innocence, in the absence of The applicants' denial of the relevant right cannot be considered consistent with the principle of fair trial within the meaning of article 6, paragraph 1, of the Convention.
(b) With regard to complaint No. 20903/15. The applicant Maestri was acquitted by the court of first instance on all counts of the charge against her. The court ruled that the testimony of witnesses and other evidence from the case materials confirmed that she only kept company accounts, following the instructions of her management, and therefore did not play an active role in the activities of the companies.
The Court of Appeal overturned the verdict of the court of first instance and did not agree with its interpretation of the testimony of witnesses. The Court of Appeal found the applicant guilty, having made sure that the testimony, in particular, of M. and S., who described in detail the tasks performed by the applicant Maestri, testified that the applicant played an active role in the management of the companies. In the opinion of the European Court, there was no doubt that the issues that the Court of Appeal had to clarify before deciding to overturn the acquittal and find the applicant guilty could not - in the course of a fair trial - be properly considered without a direct assessment of the testimony of the prosecution witnesses M. and S., especially in view of their evidentiary value.
In addition, although the applicant Maestri was present at the hearing, the Court of Appeal did not question her and, like the other applicants, she was thus deprived of the opportunity to present her arguments to the court on issues of facts that were crucial to establishing her guilt or innocence.
Consequently, by not conducting a new interrogation of the prosecution's witnesses and the applicant personally, before quashing the acquittal of the court of first instance, the Court of Appeal significantly restricted the rights of the applicant Maestri to defense.
The foregoing was sufficient for the European Court to conclude that the judicial proceedings against the applicant Maestri were unfair.
RESOLUTION
There was a violation of paragraph 1 of article 6 of the Convention in the case (adopted unanimously).
COMPENSATION
In the application of article 41 of the Convention. The European Court awarded the applicants 6,500 euros each as compensation for moral damage.