Affidavit: Prof Bruno Nascimbene, European Union Law Lecturer at the University of Milan

LEGAL OFFICES NASCIMBENE ANDREONI

Prof. BRUNO NASCIMBENE

European Union Law lecturer at the University of Milan

ATTORNEY GIOVANNA M. ANDREONI

Legal opinion on questions posed by Vito Roberto Palazzolo

Reference is made to the conversation with Mrs Sara Palazzolo on 27 July 2009. The profile of possible violations under the regulations of the European Convention on Human Rights, which can be attributed to the Italian Authorities, are summarised as follows hereunder:

With regard to the ne bis in idem (article 4 Protocol 7 of European Convention)

1.The gravamen has already been raised by Mr Palazzolo’s Defence Counsel at various levels of Court (appeal presented against the Court of Palermo judgment 5.7.2006; appeal to Supreme Court of Appeal against the appeal judgment handed down by Court of Palermo 11.7.2007).

The appeal presented to the Supreme Court of Appeal is however missing from the documentation provided. But the reason for the appeal can be inferred from the Appeal Court judgment. The gravamen may be presented to the European Court of Human Rights in the motion of appeal that will eventually be presented within the time frame (six months) provided under the Convention.

2.In the case in point, the time period for horizontal internal appeals has expired, referred to under article 35 of the Convention, in the sense that the appeals carried out have offered the accused State the possibility of seeking a remedy (if it wanted to) for the alleged violations of the Convention (on this point, European Court case law has been constant, going back to the judgments Guzzardi v. Italy, 6.11.1980; Van Ooserwijck v. Belgium 6.11.1980).

3. On the basis of the documentation examined, the term of reference for contesting the violation of the ne bis in idem principle would be the judgment handed down by the Court of Rome on 28.3.1992, whereby Mr Palazzolo was acquitted on the crime of Mafia association (“considering that no proof whatsoever emerges from the documentation on file with regards to crime provided for under article 416 bis of the Italian Criminal Code”), and was sentenced in relation to the second charge (article 75 of Law 685/1975). Even in the absence of specific documentation (specifically, the certification or stamp verifying that the judgment has become final), it can be inferred from the documents examined that the above judgment was not contested in the Supreme Court of Appeal, and that it had become irrevocable.

The tempus commissi deliciti does not appear in the charges indicated in the Court of Rome’s judgment (at least not in the copied section provided), which was then retraced back to the date when the Court judgment was handed down (28.3.1992) by the Prosecution itself in the proceedings 573/97 R.G.N.R (namely the one relating to the conviction confirmed by the Supreme Court on 13.3.2009).

4.European Court case law has repeatedly handed down judgment relating to the right not to be tried or convicted twice in terms of article 4 of Protocol no.7, and specifically during 2009, two especially significant judgments were handed down in this regard. The requirements needed by the Court for article 4 Protocol 7 to be applicable, are very briefly the following, and these have been adhered to from the time of the Engel and others v. The Netherlands judgment dated 8.6.1976 (so-called Engel criteria):

1)the sentence must no longer be sensitive to ordinary charges;

2)the guarantee is limited to criminal proceedings, with the exclusion therefore of judgments relating to compensation for damages etc.;

3)the crime must be the same as the one in the judgment that has become definitive.

The above prerequisites must be read together with Italian criminal procedure regulations, which only allow for a new trial to be heard in favour of the accused (this reference is obviously with regard to judgments that have become definitive, with the exclusion of those that are in themselves revocable, such as orders for dismissal or in specific cases like those provided for under article 69 c.2 of the Criminal Procedure Code and 345 of the Criminal Procedure Code, or further with regard to slanderous statements made by state witnesses). The immediate consequence of this is the in peius inapplicability of the second section of article 4 under Protocol 7: “The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”

5.In the case under consideration here, the three prerequisites required by the European Court for the application of article 4 of Protocol no.7 do exist. On the identity of the crime – or of the fact, as the case law interpretation of the Court recognises (this can be seen in the Maresti v. Croatia judgment dated 25.6.2009, paragraph 62), the generalised formulation of the charges made against Mr Palazzolo undoubtedly allow us to draw a similarity between the contention in the judgment at the Court in Rome, and the one promoted by the Attorney General at the Court in Palermo, which was confirmed by the Supreme Court of Appeal judgment dated 13.3.2009.

The highly generalised nature of the charge could in fact constitute a “sore point” in confirming the violation of article 4 under Protocol no.7. A Court judgment that was handed down against Italy, in fact, excluded that the violation could exist in a case where the generalised nature of the charge (unlawful possession and carrying of firearms) in the acquittal judgment that had become definitive, did not effectively represent a bis in idem violation in relation to the second conviction judgment (unlawful possession and carrying of firearms used to carry out a specific murder, only discovered after the acquittal of the first judgment).

In the case that we are concerned with, the problem is solved at the outset by the change made by the Attorney General at the Court in Palermo to the charge in relation to the tempus commissi delicti, recognising the charge in relation to the Roman Court’s judgment, thus eliminating all doubt on this point from the outset.

6.A further prerequisite to check on whether article 4 of Protocol no.7 has been violated, was explained in the Zigarella v. Italy decision on 3.10.2002, where the Court clarified (even though this was in relation to a bis in idem that had not led to damages for the accused), that the violation can be claimed only in cases where the second proceedings for the same facts had been initiated on the assumption that they knew of the existence of the first proceedings: this prerequisite is also superseded in the case in hand by the Attorney General’s intervention changing the charge.

7.A noteworthy feature of this case relates to the statements made by the state witnesses, which took place after the Roman Court judgment had become irrevocable, but in fact related to a period of time covered by the Roman Court’s judgment (separate reference hereunder will be made to the state witness Giuffrè’s statements).

During the proceedings, this problem was resolved by the first instance judgment that considered the state witnesses’ statements not as a direct source of proof, but rather as a “framework of reference, in which the facts subsequent to the 1992 judgment could be inserted and assessed”. The Court of Palermo continued”…”Besides which, it would be inadmissible and contrary to the principle of the Judge’s free conviction, for any new proof that had never been examined previously in any prior proceedings and that had been legitimately acquired, not to have any consideration on the new judgement.”

 

With regard to article 649 of the Criminal Procedure Code which obstructs a second judgment in relation to an accused that has been convicted or acquitted under an irrevocable judgment, we read similarly that “the abovementioned article establishes a typical preclusion of judgment, but does not set specific limitations on the Judge’s free persuasion”.

The Supreme Court of Appeal in its motivation for rejecting the second motion for the appeal presented by Mr Palazzolo’s Defence (relating to the violation of the ne bis in idem principle), stated that: “judgment… crystallises and renders the “legal truth” undisputable, with reference to a specific charge and a specific person, but it does not cancel or impact on the historical facts, nor does it forbid the Judge from knowing the historical facts, albeit for different reasons, where the existence of a judgment would preclude a new assessment being made of the “legal truth”… the preclusion of the judgment only forbids a criminal action being exercised with regard to the fact-crime that formed the subject of that judgment, but has nothing to do with the possibility of a renewed assessment of the probatory elements acquired in the proceedings that have been concluded, once it has been established that these probatory elements could be relevant in ascertaining crimes that differ from the one already judged…”.

8.The premise for applying the European Convention, repeatedly reiterated by the European Court in its own jurisdiction, is that the Convention does not protect hypothetical or illusory rights, but rather practical and effective rights, and this is the sense that the Convention must be interpreted in.

In the case law we examined, we did not come across European Court judgments that specifically relate to the ne bis in idem principle on the subject of a permanent crime (such as the association in a Mafia type organisation to commit a crime), because the judgments handed down by the Court have thus far, largely focused their attention on identifying the fact, and the existence of further Engel criteria that we made reference to above.

 

However, in the recent Grand Chamber judgment, Sergey Zolotukhin v. Russia (cit., paragraphs 82 – 84), we read: “The guarantee enshrined in Article 4 of Protocol no. 7 becomes relevant on commencement of a new prosecution, where a prior acquittal or conviction has already acquired the force of res judicata, At this juncture, the available material will necessarily comprise the decision by which the first “penal procedure” was concluded and the list of charges levelled against the applicant in the proceedings. Normally these documents would contain a statement of facts concerning both the offence for which the applicant has already been tried, and the offence of which he or she stands accused. In the Court’s view, such statements of fact are an appropriate starting points for its determination of the issue whether the facts in both proceedings were identical or substantially the same. The Court emphasises that it is irrelevant which part of the new charges are eventually upheld or dismissed in the subsequent proceedings, because Article 4 of Protocol no.7 contains a safeguard against being tried or being liable to be tried again in new proceedings rather than a prohibition on a second conviction or acquittal… The Court’s inquiry should therefore focus on those facts which constitute a set of concrete factual circumstances involving the same defendant and inextricably linked together in time and space, the existence of which must be demonstrated in order a secure a conviction or institute criminal proceedings”. (Author’s bold print; English copy provided – not translated).

9.Once again, the Court’s observations relate to determining whether one of the Engel criteria exists, specifically, examining the charge to establish the identity of the facts that form the subject of the second proceedings, which prevails over its formally attributed judicial definition.

Nonetheless, the reference made by the Court to a set of factual circumstances that are “inextricably linked together in time and space” regarding the same defendant, underlines the need to anchor each of the verifications to purely practical parameters regarding the existence of the violation. In the light of an interpretation given by the European Convention, which renders the rights that it safeguards effective, this principle, which initially referred to the formulation of the charge being contested, must also be extended to the probatory material available to the Judge, given the prevailing nature of the factual evaluation over the judicial definition. In the case that we are examining, reference is made in particular to the same crime (association in a Mafia type organisation to commit a crime), described as being permanent in nature, but split over two different contentions, whereby the probatory material referring to the first period (covered by the acquittal judgment) is nonetheless used by the Italian Judge to motivate the conviction referred to in the second period under contention.

In this way, however, in the name of the “free persuasion” principle, the safeguard given by the Convention looses its value, thus making the formal evaluation of the judgment prevail over the factual assessment of those circumstances that are “inextricably linked together in time and space”, which would prevent the review of a contra reum judgment.

We therefore believe that a violation of article 4 under Protocol no.7 of the European Convention on Human Rights is applicable in relation to Italy.

Other profiles

10.The other profiles that could be examined in depth in the case of an appeal submission being made to the European Court are the following:

a) On the subject of violating due process, one could examine the reformatio in peius following the Appeal Court judgment, with regard to the definition of the crime. In fact, from the initial conviction established by the Court for external association in a Mafia association, the subsequent levels of Court hearings re-qualified the conduct to participation in a Mafia type association, without any request being made in this regard by the Attorney General.

b) Again, on the subject of violating due process, one could look at whether the statements made by the state witnesses’ are usable (statement of state witness Giuffrè indicated above), given the absence of a deposition, which would be necessary in the case of statements made for the first time during the hearing stage of a trial: the absence of a prior deposition during the preliminary hearing stage would benefit the Prosecution on the subject of usability, and therefore besides eliminating the guarantees provided for by law to avoid “carefully measured out” statements on the part of state witnesses, would favour a conscious choice not to make use of depositions, which would violate the fundamental principles of discovery in the proceedings.

Milan, 31 July 2009

Signed: Prof Bruno Nascimbene

Signed: Attorney Maria Silvia Mori


No further examination of the ne bis in idem principle will be made in this forum, as it had already been taken into account by the Italian judicial system with judgment handed down by the Appeal Court of Palermo on 22.7.2003, which amended the Court of Palermo judgment dated 12.10.2000, where it stated that they could not proceed regarding the facts committed by Mr Palazzolo up until the 20.4.1984 due to the obstruction of the previous judgment (the appellant was sentenced at the first instance to twelve years imprisonment and a fine of Lire 100 000 000, for the continued nature of the crime of association, plea bargained with the judgment handed down by the Court of Rome). The charge related to the allegation of having committed a criminal act directed at the trafficking of narcotics, and the obstructive judgment was constituted by the judgment handed down by the Criminal Appeal Court in Lugano and the judgment of the Criminal Supreme Court of Appeal in the Canton of Ticino on 11.4.1986. The documentation relating to this second ne bis in idem (in actual fact the first, in terms of time) can be used to show the Italian Government’s persistence in relation to the accused.

In the unofficial translation, the above article provides as follows: “1) No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. 2) The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. 3) No derogation from this Article shall be made under Article 15 of the Convention”.

 

Reference is made here to the cases of Sergey Zolotukhin v. Russia [GC] dated 10.2.2009 and Maresti v. Croatia dated 25.6.2009, which will be discussed in further detail hereunder.

Case of the accused being declared dead in error, with the subsequent statement in terms of article 129 of the Criminal Procedure Code.

Criminal case that can be re-proposed in the case of intervening conditions that make it possible to proceed.

Marcello Viola v. Italy, 5.10.2006, paragraphs 81 – 90.

Zigarella v. Italy, decision 3.10.2002.

Judgment Court of Palermo, 5.7.2002, page 11.

Above judgment, page 12.

Appeal Court of Palermo, judgment 11.7.2007, page 34.

Supreme Court of Appeal judgment 13.3.2009, pages 18-19, with quote from Supreme Court judgment no. 2110/1995.

The above paragraphs are also quoted in full in the subsequent judgment of Maresti, cit.