FIRST SECTION

DECISION

Application no. 22147/20
Pierino ISOLDI
against Italy

The European Court of Human Rights (First Section), sitting on 14 November 2024 as a Committee composed of:

 Erik Wennerström, President,
 Raffaele Sabato,
 Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 22147/20) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 May 2020 by an Italian national, Mr Pierino Isoldi, who was born in 1957 and lives in Bertinoro (FC) (“the applicant”) and was represented by Mr F. Murgia, a lawyer practising in Treviso;

the withdrawal of Mr Gilberto Felici, the judge elected in respect of the Republic of San Marino, from sitting in the case (Rule 28 § 3 of the Rules of Court);

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the alleged unfairness of revision proceedings and, in particular, the refusal of the domestic authorities to hear a witness, whom the defence considered essential.

2.  On 28 May 2014 (final judgment of the Court of Cassation), the applicant was sentenced to twelve years of imprisonment for aggravated robbery, induced abortion, and multiple aggravated injuries. He was found guilty of simulating a robbery with the specific aim of terminating the pregnancy of his mistress.

3.  The domestic courts found him guilty on the grounds of several pieces of corroborating evidence, also taking into account the false alibi he had provided to the authorities, the records of his internet searches and the fact that during the investigation traces of chloroform had been found in his car.

4.  On 28 February 2018, the applicant lodged a request for an extraordinary revision of the final judgment (“revisione”) with the Court of Appeal of Ancona, pursuant to Article 630 § 1 (c) of the Code of Criminal Procedure (hereinafter “the CCP”), on the grounds that new evidence had come to light. His request was declared admissible, and the new witnesses were duly heard. Under Article 507 of the CCP the applicant made a new request for admission of further – allegedly decisive – evidence, which was dismissed. The Court of Appeal considered that the statements of the witnesses already heard were untrustworthy since they had come forward twelve years after the relevant events and the testimonies were based on a conversation one of the witnesses had had with a third person (de relato), deceased in the meantime. Therefore, the new request for admission of a further witness on the same dubious line of defence was considered “absolutely unnecessary”.

5.  Upon appeal, the Court of Cassation upheld the appellate court’s decision, finding that the applicant had filed his request under Article 507 of the CCP which allows the merit court to reopen the time of hearing witnesses, even if expired, only if the witness’ examination is considered “absolutely necessary”.

6.  Under Article 6 §§ 1 and 3 (d) of the Convention, the applicant complained about the unfairness of the revision proceedings. He argued that the domestic courts had refused to admit decisive evidence and had not motivated the refusal adequately.

THE COURT’S ASSESSMENT

7.  According to long-standing and established case-law (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015; Mihalache v. Romania [GC], no. 54012/10, § 133, 8 July 2019; and Ryabyk v. Russia, no. 52854/99, §§ 51-52, ECHR 2003‑IX), the Convention does not guarantee a right to have a terminated case reopened.

8.  As regards criminal proceedings, the Court refers to the principles set out in Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, §§ 60-67, 11 July 2017, with the case-law cited therein) where the Court recalled its principles on the applicability of Article 6 in the context of extraordinary remedies. In particular, it transpires from the general principles that Article 6 of the Convention is applicable, in its criminal aspect, to criminal proceedings concerning remedies classified as extraordinary in domestic law where the domestic court is called upon to determine the charge. The Court therefore examines the issue of the applicability of Article 6 to extraordinary remedies by seeking to establish whether, during the consideration of the remedy in question, the domestic court was required to determine the criminal charge (ibid., § 65.)

9.  In the present case, the Court observes that, in the domestic system, the reviewing mechanism is an ordinary procedural instrument aimed to ensure that, in mandatory cases listed in Article 630 of the CCP, new pieces of evidence or any other unexpected elements, becoming known after the judgment is final, but extraneous and different from those on which the final decision was focused, could be taken into account, leading to a full reconsideration of the case. The essential aim of this rule is to remove any judicial errors that have caused damage to the personal freedom or in any event to the legal sphere of a convicted person.

10.  In the context of this judicial re-examination, the domestic court’s task is to consider the outcome of the domestic proceedings and to weigh the alleged new evidence, so as to provide, if necessary, a new judgment on the person’s guilt.

11.  Given the scope of the domestic court’s scrutiny in the present case, the Court considers that the revision proceedings should be regarded as an extension of the criminal proceedings against the applicant. Consequently, in the instant case, the safeguards of Article 6 of the Convention were applicable to the proceedings before the domestic courts.

12.  Turning to the complaint raised by the applicant, it must be observed that the general principles relating to the right to a fair trial and the examination of defence witnesses have been summarised in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 139-68, 18 December 2018), which has provided criteria aiming to determine:

(1)  whether the request to examine a witness was sufficiently reasoned and relevant to the subject matter of the accusation;

(2)  whether the domestic courts considered the relevance of that testimony and provided sufficient reasons for their decision not to examine a witness at trial; and

(3)  whether the domestic courts’ decision not to examine a witness undermined the overall fairness of the proceedings.

13.  In the present case, it appears that the applicant submitted sufficient and relevant reasons to hear the alleged witness. Even though the Court of Appeal of Ancona held that the applicant had failed to give reasons for his request, it shall be observed that he stated that the invoked witness could be one of the perpetrators of the offence for which the applicant had been convicted. Therefore, it appears that the request was motivated and relevant to the case, as the confession of the witness, if considered trustworthy, obviously could have a potential impact on the outcome of the proceedings. According to the defence lawyer, the witness somehow took part in the robbery with another person, the main perpetrator of the attack on the woman.

14.  Therefore, steps (2) and (3) of the Murtazaliyeva test are central in the case at hand. At the outset, it shall be noted that, in filing the request, the applicant’s lawyer stated that the witness was present at the final hearing and ready to testify in the presence of his own lawyer in the special role of “assisted” witness (“testimone assistito”), a witness investigated by the authorities but whose charge had been discontinued. However, the applicant did not submit a copy of the decree of discontinuance. In the Italian procedural system, the legal value of the statements of such a witness is lighter, as they must be compared with other elements to form complete evidence and thus, without corroboration, these statements are not sufficient for revision. Moreover, in the present case, the statements of the witness had to be considered in the light of the general protection from self-incrimination (Article 63 of the CCP).

15.  As to the domestic courts assessment and reasoning, the Court of Appeal stated that the applicant had not sufficiently motivated his request and that, in any event, the examination of the witness was not “absolutely necessary” pursuant to Article 507 of the CCP. In fact, the domestic court, offering adequate reasons, justified the refusal by saying that the statements of the other witnesses already heard were not trustworthy (mainly based on statements de relato from a third person deceased in the meantime, see paragraph 4 above). It appears that the Court of Appeal examined funditus the relevance of witnesses, offering essential but sufficient reasons of the refusal, and that the new witness could not add any positive elements.

16.  The Court of Cassation then dismissed the appeal from a procedural point of view, holding that the applicant had filed his request under Article 507 of the CCP, which allows the domestic court to reopen the timeframe of hearing witnesses, even if it has expired, only when it is considered “absolutely necessary”. The Court of Cassation held that the Court of Appeal had made use of its discretionary power and assessed that the new witness was not “absolutely necessary” for the decision on the revision.

17.  Lastly, from an overall perspective about the fairness of the proceedings, having regard to the weaker value of a testimony by the requested new witness (see paragraph 14 above) in relation to the solid evidence of guilt previously gathered by the investigating authorities and presented during trial, no breach of Article 6 of the Convention is apparent in the contested decision of the Court of Appeal. As a matter of fact, the requested new witness, whose statements had been gathered by a private investigator and were submitted to the domestic court, had a weaker legal value and on the merits consisted of pointing out the presence of a third person who had committed the crime. It must be noted that this lead had already been explored during preliminary investigations and discarded by the First Instance Court.

18.  Having regard to the foregoing, the Court concludes that the complaint is manifestly ill-founded under Article 35 § 3 (a) of the Convention.

19.  As regards the other complaint of lack of impartiality of the domestic courts, the Court notes that the applicant neither raised a complaint before the domestic courts, notwithstanding the specific procedure to decide upon challenges for bias (“ricusazione”), nor did he lodge a specific claim on the issue before the Court of Cassation. The result is that the Court is called to examine the nature of the grounds on which the challenge for bias was based for the first time (see Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 84-89, 9 July 2015, and Juričić v. Croatia, no. 58222/09, §§ 61-64, 26 July 2011). Accordingly, this part of the application is inadmissible for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention.

20.  It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 December 2024.

 Liv Tigerstedt Erik Wennerström
 Deputy Registrar President