Yet another post on the topic of conviction after acquittal; my post #2255 on Cont. 11.
Excerpts:
ECHR Case: HANU v. ROMANIA 10890/04 04/06/2013
32. The Court has held that where an appellate court {including a Supreme Court of Appeal or Cassation} is called upon to examine a case as to the facts and the law and to make a full assessment of the question of the applicant’s guilt or innocence, it cannot, as a matter of fair trial, properly determine those issues without a direct assessment of the evidence given in person by the accused who claims that he has not committed the act alleged to constitute a criminal offence (see Ekbatani v. Sweden, 26 May 1988, § 32, Series A no. 134, Constantinescu, cited above, § 55, and Lacadena Calero v. Spain, no. 23002/07, § 36, 22 November 2011).
37. In the instant case, the Supreme Court did not avail itself of these possibilities but judged the case on the basis of the evidence given before the prosecutor and the County Court. Moreover, the matters that the Supreme Court examined in order to declare the applicant guilty were of a factual nature.... Contrary to the Government’s arguments... the Court notes that the Supreme Court gave its own interpretation of the factual situation in the case. Its decision was not therefore limited to matters of law.
39. It therefore appears that when they convicted the applicant neither the Court of Appeal nor the Supreme Court relied on any new evidence. Instead, they based their decisions on the evidence given by the applicant and the witnesses before the prosecutor and the County Court. However, the latter, after having heard the witnesses in person, had held that none of the evidence was conclusive proof as to the applicant’s guilt, and acquitted him (see paragraph 12 above). Even if the appellate courts could, in principle, have given their own interpretation of the evidence adduced before them, in the instant case the applicant was found guilty on the basis of witness testimony that had been found insufficient by the County Court and had justified his acquittal.
40. In these circumstances, the omission of the Court of Appeal to hear the witnesses in person, and the failure of the Supreme Court to redress the situation by referring the case back to the Court of Appeal for a fresh examination of the evidence, substantially reduced the applicant’s defence rights (Destrehem v. France, no. 56651/00, § 45, 18 May 2004 and Găitănaru, cited above, § 32). The Court reiterates that its case-law underlines that one of the requirements of a fair trial is the possibility for the accused to confront the witnesses in the presence of a judge who must ultimately decide the case, because the judge’s observations on the demeanour and credibility of a certain witness may have consequences for the accused (see P.K. v. Finland (dec.), no. 37442/97, 9 July 2002; mutatis mutandis, Pitkänen v. Finland, no. 30508/96, §§ 62-65, 9 March 2004; and Milan v. Italy (dec.), no. 32219/02, 4 December 2003).
41. The foregoing considerations are sufficient to enable the Court to conclude that in the instant case, the domestic courts failed to comply in the applicant’s case with the requirements of a fair trial.
42. Since that requirement was not satisfied, the Court considers that there has been a violation of Article 6 § 1 of the Convention.
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Once an acquittal is given that demolishes the case, as has happened for the AK - RS case in the Hellmann court trial, conviction by an appeal court or CSC without new evidence establishing guilt BARD is a violation of the Convention right to a fair trial. The CSC would have to overcome the contradiction between the acquittal by Hellmann and the conviction by Nencini, and there would be no new evidence to justify the conviction, nor would there be the presence of the defendants before the CSC. The CSC, to convict in a way consistent with ECHR case-law, would have needed to annul Nencini and refer the case back to retrial to gather new evidence supporting a conviction (which of course, was in reality not available; the only additional evidence was that suppressed by the prosecution, which must be assumed to be exculpatory - otherwise it would not have been suppressed). Thus, the CSC finally acquitted, acknowledging defects in the investigation and the absence of reliable DNA evidence against Knox and Sollecito, and maintained some consistency with ECHR case-law.
