Recently the CSC delivered a final judgment denying Raffaele Sollecito compensation for unfair detention; acquitted persons are generally entitled to such compensation under CPP Article 314. According to a media report quoting his lawyer, Raffaele may bring a case before the ECHR claiming that this denial of compensation was a violation of his Convention rights by Italy.
This post gives some information on ECHR case-law that may apply to that potential case.
A first consideration is that the final judgment denying the compensation may be arbitrary and insufficiently reasoned. Arbitrary reasoning in a judgment which denies someone a deserved benefit or results in a criminal conviction is a violation of Convention Article 6.1 (case law includes, for example, Grădinar v. Moldova 7170/02 and Genov v. Bulgaria 7202/09). Another aspect of this approach is whether the CSC used "judicial facts" that were not supported by real facts, or were based on statements generated in an interrogation of a suspect who was denied a lawyer or subjected to coercion.
But a second approach relies on claiming a violation of Convention Article 6.2, the presumption of innocence. After an acquittal, the former accused continues to be considered innocent of the charges for which he was acquitted, and compensation hearings are tied to the acquittal decision under Italian law and are thus considered an extension of the criminal trial by the ECHR, and the presumption of innocence must therefore be preserved. This approach is outlined in the following excerpt from Allen v. the United Kingdom 25424/09 12/07/2013 (inline references deleted); of particular interest are paragraphs 98 b, c, and d, 100, and 102 - 107. As a further point, the scope of "presumption of innocence" may be of interest to some (paragraphs 93 and 94):
(i) Introduction
92. The object and purpose of the Convention, as an instrument for the protection of human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. The Court has expressly stated that this applies to the right enshrined in Article 6 § 2.
93. Article 6 § 2 safeguards the right to be “presumed innocent until proved guilty according to law”. Viewed as a procedural guarantee in the context of a criminal trial itself, the presumption of innocence imposes requirements in respect of, inter alia, the burden of proof; legal presumptions of fact and law; the privilege against self-incrimination; pre-trial publicity; and premature expressions, by the trial court or by other public officials, of a defendant’s guilt.
94. However, in keeping with the need to ensure that the right guaranteed by Article 6 § 2 is practical and effective, the presumption of innocence also has another aspect. Its general aim, in this second aspect, is to protect individuals who have been acquitted of a criminal charge, or in respect of whom criminal proceedings have been discontinued, from being treated by public officials and authorities as though they are in fact guilty of the offence charged. In these cases, the presumption of innocence has already operated, through the application at trial of the various requirements inherent in the procedural guarantee it affords, to prevent an unfair criminal conviction being imposed. Without protection to ensure respect for the acquittal or the discontinuation decision in any other proceedings, the fair-trial guarantees of Article 6 § 2 could risk becoming theoretical and illusory. What is also at stake once the criminal proceedings have concluded is the person’s reputation and the way in which that person is perceived by the public. To a certain extent, the protection afforded under Article 6 § 2 in this respect may overlap with the protection afforded by Article 8.
(ii) Applicability of Article 6 § 2
95. As expressly stated in the terms of the Article itself, Article 6 § 2 applies where a person is “charged with a criminal offence”. The Court has repeatedly emphasised that this is an autonomous concept and must be interpreted according to the three criteria set out in its case-law, namely the classification of the proceedings in domestic law, their essential nature, and the degree of severity of the potential penalty. To evaluate any complaint under Article 6 § 2 arising in the context of judicial proceedings, it is first of all necessary to ascertain whether the impugned proceedings involved the determination of a criminal charge, within the meaning of the Court’s case-law.
96. However, in cases involving the second aspect of the protection afforded by Article 6 § 2, which arises when criminal proceedings have terminated, it is clear that the application of the foregoing test is inappropriate. In these cases, the criminal proceedings have, by necessity, been concluded and unless the subsequent judicial proceedings give rise to a new criminal charge within the Convention’s autonomous meaning, if Article 6 § 2 is engaged, it must be engaged on different grounds.
97. The parties did not suggest that the compensation proceedings brought by the applicant gave rise to a “criminal charge”, within the autonomous meaning of the Convention. It is therefore the second aspect of the protection afforded by Article 6 § 2 which is in play in the present case; and the Court will accordingly examine how it has approached the applicability of Article 6 § 2 to subsequent judicial proceedings in such cases.
98. The Court has in the past been called upon to consider the application of Article 6 § 2 to judicial decisions taken following the conclusion of criminal proceedings, either by way of discontinuation or after an acquittal, in proceedings concerning, inter alia:(a) a former accused’s obligation to bear court costs and prosecution costs;
(b) a former accused’s request for compensation for detention on remand or other inconvenience caused by the criminal proceedings;
(c) a former accused’s request for defence costs;
(d) a former accused’s request for compensation for damage caused by an unlawful or wrongful investigation or prosecution;(e) the imposition of civil liability to pay compensation to the victim;
(f) the refusal of civil claims lodged by the applicant against insurers;
(g) the maintenance in force of a child care order, after the prosecution decided not to bring charges against the parent for child abuse;
(h) disciplinary or dismissal issues; and
(i) the revocation of the applicant’s right to social housing.
99. In a number of these cases, the Court found in favour of the applicability of Article 6 § 2. Explaining why Article 6 § 2 applied despite the absence of a pending criminal charge in a trio of early cases, the Court said that the rulings on the applicants’ entitlement to costs and compensation were “consequences and necessary concomitants of”, or “a direct sequel to”, the conclusion of the criminal proceedings. Similarly, in a later series of cases, the Court concluded that Austrian legislation and practice “link[ed] the two questions – the criminal responsibility of the accused and the right to compensation – to such a degree that the decision on the latter issue could be regarded as a consequence and, to some extent, the concomitant of the decision on the former”, resulting in the applicability of Article 6 § 2 to the compensation proceedings.
100. Developing this idea in subsequent cases, the Court found that the applicants’ compensation claim “not only followed the criminal proceedings in time, but was also tied to those proceedings in legislation and practice, with regard to both jurisdiction and subject matter”, creating a link between the two sets of proceedings with the result that Article 6 § 2 was applicable.
101. In cases concerning the victim’s right to compensation from the applicant, who had previously been found not guilty of the criminal charge, the Court held that where the decision on civil compensation contained a statement imputing criminal liability, this would create a link between the two proceedings such as to engage Article 6 § 2 in respect of the judgment on the compensation claim.
102. More recently, the Court has expressed the view that following discontinuation of criminal proceedings the presumption of innocence requires that the lack of a person’s criminal conviction be preserved in any other proceedings of whatever nature. It has also indicated that the operative part of an acquittal judgment must be respected by any authority referring directly or indirectly to the criminal responsibility of the interested party.
(iii) Conclusion
103. ... the Court would formulate the principle of the presumption of innocence in this context as follows: the presumption of innocence means that where there has been a criminal charge and criminal proceedings have ended in an acquittal, the person who was the subject of the criminal proceedings is innocent in the eyes of the law and must be treated in a manner consistent with that innocence. To this extent, therefore, the presumption of innocence will remain after the conclusion of criminal proceedings in order to ensure that, as regards any charge which was not proven, the innocence of the person in question is respected. This overriding concern lies at the root of the Court’s approach to the applicability of Article 6 § 2 in these cases.
104. Whenever the question of the applicability of Article 6 § 2 arises in the context of subsequent proceedings, the applicant must demonstrate the existence of a link, as referred to above, between the concluded criminal proceedings and the subsequent proceedings. Such a link is likely to be present, for example, where the subsequent proceedings require examination of the outcome of the prior criminal proceedings and, in particular, where they oblige the court to analyse the criminal judgment, to engage in a review or evaluation of the evidence in the criminal file, to assess the applicant’s participation in some or all of the events leading to the criminal charge, or to comment on the subsisting indications of the applicant’s possible guilt.….
(b) Application of the general principles to the facts of the case
….
107. The Court’s task at this stage of its analysis is therefore to examine whether there was a link between the concluded criminal proceedings and the compensation proceedings, having regard to the relevant considerations set out above (see paragraph 104 above). ….
