Case of European Court of Human Rights, October 17, 2019 (case ODDONE AND PECCI v. SAN MARINO)

Defense:SAN MARINO
Resolution Date:October 17, 2019
SUMMARY

Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

 
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FIRST SECTION

CASE OF ODDONE AND PECCI v. SAN MARINO

(Applications nos. 26581/17 and 31024/17)

JUDGMENT

STRASBOURG

17 October 2019

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Oddone and Pecci v. San Marino,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Ksenija Turković, President,Krzysztof Wojtyczek,Aleš Pejchal,Armen Harutyunyan,Pauliine Koskelo,Tim Eicke, judges,Kristina Pardalos, ad hoc judge,

and Abel Campos, Section Registrar,

Having deliberated in private on 3 September 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in two applications (nos. 26581/17 and 31024/17) against the Republic of San Marino lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Italian nationals, Mr David Oddone and Mr Alessandro Pecci (“the applicants”), on 31 March 2017 and 11 April 2017, respectively.

  2. The first applicant was represented by Mr S. Pagliai, a lawyer practising in Firenze, and the second applicant was represented by Mr F. Cocco, a lawyer practising in Rimini. The Government of San Marino (“the Government”) were represented by their Agent, Mr L. Daniele and their Co‑Agent Ms M. Bovi.

  3. The applicants complained, under Article 6 §§ 1 and 3 (d) of the Convention, that they had been denied the possibility to cross-examine two co‑accused “as witnesses” who had given incriminating statements against them.

  4. On 23 January 2018 the Chamber to which the case was allocated decided to join the applications and to communicate the above‑mentioned complaint to the respondent Government.

  5. The Italian Government did not make use of their right to intervene in the proceedings (Article 36 § 1 of the Convention).

  6. In February 2019, the President of the Section gave leave, pursuant to Rule 38 § 1 of the Rules of Court, for further factual information and observations from the parties to be included in the case file for the consideration of the Court.

  7. Mr Gilberto Felici, the judge elected in respect of San Marino, withdrew from sitting in the Chamber (Rule 28). The President accordingly appointed Ms K. Pardalos to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29).

    THE FACTS

    1. THE CIRCUMSTANCES OF THE CASE

  8. The applicants were both born in 1979 and live in Rimini. At the time of the facts of the present case, the first applicant was a journalist and the second applicant a lawyer.

  9. On an unspecified date the Civil Police (Polizia Civile) instituted an investigation concerning some suspicious car accidents which had taken place in San Marino. It had emerged from an information technology check that the first applicant and his parents had been involved in three car accidents in three and a half years, on 26 May 2008, 18 October 2009 and 28 September 2011. The first applicant was always the driver and one or both of the parents were with him. The first applicant was always driving a different car and the insurance companies involved were different each time. However, the kind of accident and the injuries caused to the persons involved was always the same. All three car accidents happened in the same town and two of them in the same street.

  10. On 6 July 2012 the police questioned G. (the driver of the truck which was involved in the third accident) and on 12 July 2012, the police questioned L. (the driver of the other car which was involved in the second accident) as witnesses and therefore without the assistance of counsel. At the beginning of the respective questioning, both G. and L. tried to characterise the relevant facts as ordinary car accidents, providing some details of the accidents to the police. Later on, however, in the course of the same questioning, they retracted their statements and admitted that the first applicant had arranged the accidents and they had all together simulated them in order to claim compensation from their insurance companies.

  11. In particular, G. told the police that he and the first applicant were friends and had simulated the car accident on 28 September 2011. He stated that the first applicant had planned the fraud and had decided to simulate the accident in San Marino, thinking that it would be simpler to obtain compensation there. G. admitted that he had accepted to take part in the criminal plan since he needed money to repay some debts. He stated that he knew that the first applicant’s parents (who on that day were travelling in the first applicant’s car) were also aware of the fraud, since the first applicant himself had told him so.

  12. L. told the police that the second applicant (her boyfriend at the time, who had been travelling in her car on the day of the second accident) and the first applicant were old friends and that they had attended the same high school. In her opinion, the first applicant was “an arrogant guy, full of himself, a so‑called know‑it‑all”. She further stated that on an unspecified date the second applicant had informed her that he and the first applicant had planned to simulate a car accident and the former had asked her whether she wished to take part in the fraud. She said that at the beginning she had tried to refuse but after a while the second applicant had managed to convince her. Finally, she had consented to participate in the plan since she had needed money in order to repay some debts. She later added that she also needed it to pay for medical treatment in connection with the multiple sclerosis from which she suffered. She admitted that on 18 October 2009, while accompanied by the second applicant, she had intentionally “rear‑ended” the first applicant’s car. She recalled that the first applicant had been accompanied by his mother and that after the accident he had pretended to be upset and had called the police in order to make the accident appear more credible. She told the police that in the afternoon or the day after, the second applicant had gone to the hospital and that almost one year later, the first applicant had given her approximately 5,000 euros (EUR). L. specified that she had deposited the sum of money in her current account.

  13. On 13 July 2012 G. appeared voluntarily before the police. He added to his statement that a few days after the accident of 28 September 2011 the first applicant had given him EUR 2,000 in cash, as previously agreed.

  14. By a report of 31 July 2012, signed by a police officer, P., the police informed the investigating judge (Commissario della Legge Inquirente) about the results of the police investigation and on an unspecified date the judge opened a criminal investigation (istruttoria) for fraud.

  15. On 6 August 2012 the investigating judge classified the case file (i.e. it could not be disclosed). No reasons were provided.

  16. By a letter of request of 22 August 2012 the investigating judge asked the Italian judicial authorities to supply the phone records (tabulati telefonici) showing the list of phone numbers called by the persons involved in the investigation, for the period of a month prior to each of the car accidents.

  17. On 31 August 2012 the investigating judge questioned both G. and L., with the assistance of their counsel but without the presence of the other accused persons. The judge, in person, informed G. and L. of the charges against them. G. and L. confirmed their previous statements and added some other details. In particular, G. added that when he had been summoned for questioning by the police, he had sent an email to the first applicant asking him what was going on and that on that same day the first applicant had called him saying that it was a matter of little importance and that he could even not show up at the questioning, but that in any case he [G.] had to deny any connection with the first applicant and had to confirm that the accident had been real. L. added to her previous statement that approximately two weeks previously [mid‑August], the second applicant had shown up at her work place in Italy. He had told her that he had been informed by the first applicant about the ongoing investigation in San Marino and asked her to withdraw her previous statements and to claim that the accidents had been real (confermare la dinamica del sinistro). L. stated that she had replied that changing her version of the facts would have made her nervous and she had therefore cut him short.

  18. On 20 November 2012 C., S. and F., three persons involved in the first car accident, testified before the investigating judge that it had been a real accident and that they did not know the first and second applicants.

  19. In consequence, on an unspecified date the charge in connection with the first car accident was dropped.

  20. On 17 July 2013, in response to the above‑mentioned letter of request, the Italian judicial authorities sent the requested phone records (list of phone calls).

  21. On 29 November 2013 the investigating judge declassified the case file.

  22. By a decision of 2 December 2013 the judge informed the applicants, in writing, of the charges against them and summoned them to appear for questioning on 20 February 2014.

  23. By a joint written submission of 20 February 2014, counsel for the first and second applicants requested that the investigation be reopened in order for their clients to cross‑examine the witnesses already heard, including L. and G. As to the questioning scheduled for that day, counsel stated that the first and second applicants had availed themselves of their right to remain silent but that they were willing to be questioned once the above-mentioned investigative activities had been repeated.

  24. In addition, counsel for the first applicant informed the judge that the police investigation had been directed by a police officer, J.B., who held a grudge against the first applicant and...

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