For those interested, here is another class in the Remedial ECHR Case Law Course.
How about what rock'n'roll radio DJs would call a Golden Oldie.....
And it's a relevant case in several ways:
1) It relates to a person convicted on the basis of statements from someone who legally refuses to be cross-examined
2) It deals with apparent conflicts between several of a nation's laws
3) It deals with conflict between a nation's laws and the ECHR
4) It mentions unfavorably how a nation's courts defy the ECHR
CASE OF LUCÀ v. ITALY 33354/96 27/02/2001 {excerpts; emphasis added}
8. The applicant, who was born in 1955, is currently detained in Cosenza Prison.
9. On 25 October 1992 N. and C. were arrested by carabinieri from Roccella Jonica (Reggio di Calabria) and found to be in possession of cocaine.
10. On 25 and 26 October 1992 N. was questioned, initially by the carabinieri, and subsequently by the Locri public prosecutor (Reggio di Calabria). He said that he had obtained part of the drugs from C. for his own use; the remainder belonged solely to C. He added that on the day of their arrest, C. had accompanied him to certain people’s homes to try to buy drugs. After the evening meal they had gone to the applicant’s home. The applicant had said that he was prepared to supply them with five hundred grams of cocaine to be delivered a few days later, as he was not willing to accept deferred payment and could not go out after 8 p.m. to get the drugs.
11. N. was questioned by the carabinieri as someone who was helping them with their inquiries (“persona che puó riferire circostanze utili ai fini delle indagini”), not as an accused. For that reason, he was not assisted by a lawyer. However, the Locri public prosecutor subsequently decided that N. should be regarded as a “suspect” (“indagato”), and therefore questioned him in that capacity.
12. By an order of 12 February 1993 the Locri investigating judge committed the applicant, C. and two other suspects, Mr A. and Mr T., for trial before Locri Criminal Court for drug trafficking. A. was also accused of unlawful possession of an offensive weapon. Separate proceedings were instituted against N. for possession of drugs.
13. At the hearing on 17 July 1993, N. was called to give evidence as a person accused in connected proceedings (“imputato in procedimento connesso”). However, he chose to remain silent as he was entitled to do by virtue of Article 210 of the Code of Criminal Procedure (hereafter, “the CCP”).
...
THE LAW
I. alleged violation of Article 6 §§ 1 and 3 (d) of the Convention
31. The applicant complained that the criminal proceedings against him had been unfair and alleged that he had been convicted on the basis of statements made to the public prosecutor, without being given an opportunity to examine the maker of the statements, N., or to have him examined. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him ...
...”
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
46. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
47. The applicant said that his conviction and imprisonment had been unjust. He had thereby been prevented from working and his private and family life had suffered. He alleged that as a result of the violation of the Convention he had sustained substantial pecuniary and non-pecuniary damage, which he put at 500,000,000 Italian lire (ITL).
48. The Court finds no causal link between the violation of Article 6 of the Convention and the pecuniary damage alleged by the applicant. The Court cannot speculate on what the outcome of the proceedings would have been if they had complied with Article 6 §§ 1 and 3 (d). Consequently, it dismisses the applicant’s claims under this head (see Cöeme and Others v. Belgium [GC], nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 155, ECHR 2000-VII).
On the other hand, it finds that the applicant sustained some non-pecuniary damage, which cannot be compensated for simply by a finding of a violation. Ruling on an equitable basis, in accordance with Article 41 of the Convention, the Court decides to award the sum of ITL 15,000,000.
...
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
2. Holds by six votes to one
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, ITL 15,000,000 (fifteen million Italian lire) in respect of non-pecuniary damage and ITL 3,000,000 (three million Italian lire) for costs and expenses;
...
Edited by LashL:
Snipped for compliance with Rule 4. Please, do not copy and paste lengthy tracts of text from elsewhere. Instead, cite a short quote and provide the source.