APPLICATION/REQUÊTE No 17265/90

Alvaro BARAGIOLA v/SWITZERLAND

Alvaro BARACIOLA c/SUISSE

DECISION of 21 October 1993 on the admissibility of the application DECISION
du 21 octobre 1992 sur le recevabilité de la requête

Article 6, paragraph 1 of the Convention

a) A virulent press campaign can in certain circumstances adversely affect
the fairness of a trial and involve the State's responsibility particularly
if it is sparked off by one of the State's organs.

Balancing of the right to a fair trial and the public's right to information.

b) Article 6 para. 1 does not lay down rules on admissibility of evidence
which is primarily a matter for regulation under national law. The Commission
must assess fairness on the basis of an examination of the proceedings as
a whole.

In this case a conviction partly on the basis of the evidence of co accused
who have agreed to testify for the prosecution and whose sentences have
been reduced for that reason is not contrary to a fair trial in so far as
their evidence has been open to challenge and there also existed other
evidence. In addition, no indication that the conviction was based on
indirect information or on previous judgments.

c) Impartiality of a tribunal is tested on both a subjective and an
objective basis and appearances may be of importance.

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d) Limitation of access to an assize court hearing in a prison to persons
with security passes is not contrary to the requirement of publicity,
having regard to prison security and the subsequent reading out at a public
hearing of the prisoners' witness statements.

Article 6, paragraphs 1 and 3 (d) of the Convention

a) An accused should be given a proper opportunity to challenge a witness
against him, who must be heard at a public hearing with a view to adversarial
argument. However, the reading out of the records of statements made by
witnesses is not incompatible with Article 6 paras. 1 and 2 (d), provided
the use made of such statements as evidence complies with the rights of
the defence.

b) The term "witness" within the meaning of this provision must be
understood as coverting also experts. In this case, no infringement of
the principle of equality of arms, given the possibility of questioning
the experts as witnesses.

Article 6, paragraph 2 of the Convention: The presumption of innocence
requires that no representative of the State declare that a person is guilty
of having committed an offence before that guilt is established by a court.

Public remark by the President of the Cantonal Council (Switzerland), prior
to trial about the dangerous character of the applicant. In this case,
no infringement of the presumption of innocence, as the remark referred
to a previous conviction in another country.

Article 6, paragraph 3 of the Convention: The guarantees specified in
Article 6, para. 3 must be interpreted in the light of the general notion
of a fair trial contained in Article 6, para. 1. Article 6, paragraph 3
(d) of the Convention

a) This provision does not guarantee an unlimited right for an accused
to have witnesses called. b) An accused who has declared that he is not
prepared to take any further part in the proceedings cannot complain about
a violation of this provision.

Article 7, paragraph 1 of the Convention: Application of Article 6 of
the Swiss Criminal Code to a person who acquired Swiss nationality after
committing an offence is not contrary to this provision.

Article 4, paragraph 1 of the Seventh Protocol: This provision does not
guarantee respect for the principle "ne bis in idem" where a person has
been tried or punished by the courts of different States.

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(TRANSLATION)

THE FACTS

The applicant, Alvaro Baragiola, is a Swiss national, born in 1955 and
resident in Croglio (canton of Ticino). He is at present a prisoner at the
"La Stampa" prison in Lugano.

The applicant is represented before the Commission by Mr. John Noseda,
Mr. Carlo Verda and Mr. Edy Salmina, lawyers practising in Viganello Lugano.

The facts of the case, as submitted by the applicant, may be summarised
as follows.

The applicant, born of a Swiss mother and Italian father, had Italian
nationality and lived, after his parents' separation, with his mother at
Castelrotto, a few kilometres

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away from Lugano, taking the surname of his father - Lojacono. In 1969 he
went to live with his father in Rome. From 1970 onwards he was an active
member of left-wing political movements.

In a judgment dated 31 May 1980 the Rome Court of Appeal sentenced the
applicant in absentia to 16 years' imprisonment, for aiding and abetting the
murder of a Greek student, among other charges. The applicant's appeal on
points of law against this judgment was dismissed by the court of Cassation
on 20 October 1981. After leaving Rome in the summer of 1981 the applicant
went to Brazil on 31 December 1984.

Before the Court of Cassation delivered its judgment of 20 October 1981
a warrant for the applicant's arrest had been issued by the Italian
authorities. He was suspected of having been a member of a terrorist
organisation, the "Red Brigades". On 24 January 1983, at the end of the
so-called Moro 1 bis trial, the Rome Assize Court sentenced him in absentia
to life imprisonment. He was found guilty of aiding and abetting the murder
of Judge Girolamo Tartaglione, among other charges. On 14 March 1985 this
conviction was upheld by the Rome Court of Appeal. An appeal on points of
law was dismissed.

Having a Swiss mother, the applicant obtained a certificate of Swiss
nationality on 19 June 1986 from the office of the registrar of births,
marriages and deaths in Bellinzona (canton of Ticino). In September 1986
he returned to Switzerland. On 28 January 1987 the Ticino Cantonal Council
authorised him to substitute for the surname Lojacono that of his mother -
Baragiola. In September 1986 the applicant was taken into the employ of
the third channel of the Swiss Italian language radio service as a game
show host.

On 3 June 1988 the investigating judge attached to the Rome District Court
issued a warrant for the applicant's arrest, charging him, inter alia,
with aiding and abetting the kidnapping and murder of Aldo Moro.

The investigation proceedings

After being sought under international arrest warrants made out with the
name Lojacono, the applicant was arrested on 8 June 1988 in Lugano and
placed in detention on remand.

He was charged with committing in Rome between 16 March and 9 May 1978
crimes which included the killing of five bodyguards, the kidnapping and
murder of Aldo Moro, the attempted murder of a bystander and armed assault.

Immediately after his arrest a virulent press campaign began which aroused
strong emotions in the canton of Ticino.

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In order to prevent, as far as possible, the dissemination of incorrect
information, the Ticino cantonal prosecution service issued a press
communiqué on 20 June 1988, stating that the applicant, who proclaimed
his innocence, had been questioned on a number of occasions by the
investigating judge about the charges preferred against him and that the
criminal proceedings opened by the Lugano Public Prosecutor's Office were
pursuing their course in accordance with the procedural and constitutional
rules, regard being hat to the particularly delicate nature of the case.

On 14 July 1988 the Italian authorities requested on order authorising
the enforcement in Switzerland of the judgments given in Italy, which had
become final.

This request was rejected by the Federal Police Office on 22 July 1988
on the ground that the federal law on mutual international assistance in
criminal matters had not come into force until 1 1983 and was not applicable
retroactively. It therefore fell to the Swiss authorities themselves to
try the applicant for the crimes committed in Italy.

On 29 May 1989 the applicant was sent for trial in the Assize Court (corte
delle assise criminali) of the canton of Ticino in Lugano. The court was
composed of the vice-president of the Criminal Division of the Ticino
Cantonal Court of appeal, two judges, five jurors and two substitute jurors.

The applicant was accused of aiding and abetting the murder of Judge
Girolamo Tartaglione, committed on 10 October 1987 in Rome, aiding and
abetting the attempted murder of another judge and aiding and abetting
a number of attempted armed robberies committed during 1979 against the
National Communications Bank.

It was alleged in the indictment that the "Red Brigades" commando which
had killed Judge Girolamo Tartaglione had been composed of five persons:
Alessio Casimirri, who had shot at the judge, the applicant, who had covered
Casimirri during the attack, the driver, Massimo Cianfanelli, and two women,
one of whom had signalled the judge's arrival by riding ahead of him on a
motor scooter, while the other, armed with a handgun and a sub-machine gun,
kept watch on the outside of the judge's home.

In a decision also dated 29 of May 1989 the Ticino cantonal prosecution
service suspended the proceedings against the applicant in respect of the
kidnapping and murder of Aldo Moro for lack of sufficient evidence.

The trial proceedings

The case was set down for trial on 9 October 1989. The Assize Court held
fifteen hearings, the last of these on 6 November 1989.

At the hearing of 9 October 1989 the Assize Court dismissed the applicant's
plea that the Swiss court lacked jurisdiction. All the other requests made
by the applicant

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at the hearings of 9, 10 and 12 October 1989 concerning the taking of
evidence were rejected by the Assize Court.

The challenge for bias

On 13 October 1989, the filth day of the trial, the applicant challenged
all the members of the Assize Court.

He based this challenge on the Assize Court's presumed partiality, due to
the influence exerted by the media on public opinion, and on the members
of the court, particularly the jurors. He claimed that a whole series
of decisions taken by the Assize Court showed the prejudicial effect the
press hat on the impartiality of the judges. He alleged that the fairness
of the proceedings had been affected in particular by the attitude of the
president, criticising the way she had conducted the trial and applied
the procedural rules.

On the same day the vice president of the Court of Appeal appointed an
ad hoc Assize Court to rule on the applicant's challenge for bias. The
challenge to the president was referred to the Criminal Appeals Division
of the Court of Appeal.

On 17 October 1989 the challenge for bias was dismissed by the two courts
mentioned.

The applicant then dodged a public law appeal against these decisions:

The Federal Court's judgment of 15 February 1990 on the challenge for bias.

In a judgment dated 15 February 1990 the Federal Court dismissed the
applicant's appeal.

It held that there was no objective evidence in the Assize Court's
partiality.

The Federal Court observed that, as a general rule procedural measures,
irrespective of their merits, did not constitute sufficient foundation for
an objective suspicion of bias on the part of the judge who had adopted
them. There was no objective evidence to support the applicant's claim,
based on an alleged breach of procedural rules, that the president and
all the members of the Assize Court, without exception, were biased.

With regard to a humorous remark made by the president, with the intention,
State Counsel submitted, of lowering the tension artificially created by
the defence the Federal Court held that humorous remarks were not sufficient
evidence of partiality.

With regard to the press campaign, the Federal Court observed that
circumstances extraneous to the trial could influence a judgment, either
in favour of or to the detriment of one of the parties. However, it could
not seriously be maintained

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that the influences judges were exposed to every day were all likely to
compromise their impartiality. If any outside influence might lead to a
judge being challenged, the State would no longer be able to guarantee
the normal administration of justice during politically troubled periods.

The Federal Court recognised that non professional judges were particularly
exposed to the risk of being influenced by media hostile to the defendant. It
also considered that judges, as ordinary citizens, needed to keep themselves
informed about current affairs and also, in so far as their activity
allowed them, to form a political opinion, on condition, nevertheless,
that their impartiality was not compromised.

While it was true that the members of the Assize Court had been able to
read the daily newspapers during the intervals between hearings, there
was no objective evidence that they had been influenced by the articles
which appeared in the press during the period from 9 to 13 October
1989. Admittedly, the information campaign had been very vigorous before
the beginning o the trial, but it had not been one sided and had not
appeared to be designed solely to convince the public of the defendant's
guilt. Various journalists had drawn attention to the power of the press
and the danger of hasty judgment. In this case it was also impossible to
ignore the political turn the case had taken on account of the fact that
the cantonal authorities had granted the applicant Swiss citizenship and
had authorised him to change his surname although he had been convicted by
the Italian courts In a final judgment for offences committed as a member
of the "Red Brigades".

The Federal Court further observed that, in describing the applicant
as a cruel terrorist in a debate broadcast by radio and television
the president of the cantonal council had been referring to the final
convictions pronounced by the Italian courts, not to the trial due to take
place in Lugano.

The Federal Court also held that, regard being had to the importance of
the oath or solemn affirmation made by jurors to the president when the
Assize Court was constituted, the president's omission to warn them about
the dangers of media influence over the way they reached their verdict
was not particularly serious and had not affected the impartiality of the
court. This danger was even more remote because, in a assize court in the
canton of Ticino judgment was given y both judges and jurors, rather than
by the jurors alone, as in a normal assize court.

In publishing a press communiqué on 20 June 1988, with the agreement of the
defence, the public prosecution service's intention had been to urge the
media to meet the requirements of justice and to respect the defendant's
rights, including the principle of the presumption of innocence, with a
view to the impartial conduct of the judicial proceedings.

Having regard to the press communiqué, the Federal Court took the view
that the president of the Assize Court was not required to urge the media,
even before the opening of the trial to respect the presumption of innocence.

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However, as a general rule, and in order to avoid the need for any
restrictions of the freedom of the press, journalists should in future
not only be more disciplined and self-critical but also adhere more
strictly to the code of ethics of their profession, exercising caution and
objectivity. The freedom of the press should never lead the information
media to convict a defendant before the competent court had given judgment.

The subsequent course of the trial

After the applicant's challenge for bias had been dismissed by the
cantonal courts, on 17 October 1989, the Assize Court, sitting in its
initial composition, held a further hearing on the very same day.

At that hearing and the next on 18 October 1989, a number of persons were
heard, four of whom had been in prison in Italy and had been transferred
to Lugano under Italian police escort. These prisoners included Massimo
Cianfanelli, who had participated in the murder of Judge Tartaglione but
had been prevailed upon to give evidence for the prosecution.

The other persons whose evidence was due to be heard either refused to
leave the prisons where they were being held or, in the case of those
already released, refused to appear before the Assize Court.

At the hearing of 19 October 1989 the parties were informed of this
situation. The Assize Court then decided to take the evidence of these
persons in Italy. The applicant who had not been given a safe conduct by the
Italian authorities, informed the Assize Court that he would not take part
in the taking of evidence in Italy. The Assize Court then invited him to
submit a list in writing of the questions he wanted the witnesses to answer.

On 20 October 1989 the applicant informed the Assize Court that he considered
a direct confrontation with the witnesses in Italy essential and that he
had no intention of drawing up a list of questions in writing.

At the hearing of 23 October 1989 the defence lawyers announced that they
would not accompany the court to Italy. At the same hearing the Assize
Court informed the parties that the next hearing would take place on 25
October 1989 in Paliano prison, near Rome. The defence unsuccessfully
objected. It also rejected the court's proposal that the applicant should
be assisted by a lawyer appointed under the legal aid scheme during the
taking of evidence in Italy.

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On 25 October 1989 the hearing was held, as planned in Paliano prison. Three
persons were heard. The prison governor refused to allow a number of Swiss
journalists to enter the prison because they did not have security passes.

At the next hearing, on 27 October 1989 which was once more held in Lugano
the Assize Court gave the defence the telegram received on 20 October
1989. It justified the delay in passing on the telegram by the need to
check its source. In spite of protests by the defence, the Assize Court
read out the statements taken down during the taking of evidence in Italy.

The Assize Court's judgment of 6 November 1989

In a judgment dated 6 November 1989 the Assize Court of the Canton of
Ticino sentenced the applicant to life imprisonment, finding him guilty
of aiding and abetting the murder of Judge Girolamo Tartaglione in Rome on
10 October 1978 and two armed attempts to rob the National Communications
Bank in June and July 1979 in Rome. The court held that the applicant had
conspired to commit murder and hat participated in the murder itself by
covering Casimirri, armed with a light machine gun while the latter shot
at the victim with a Glisenti automatic pistol.

On the other hand the Assize Court acquitted the applicant of the attempted
murder of another judge and of a third attempted armed robbery of the
National Communications Bank in September 1979.

The Assize Court based its decision in the main on the testimony of Massimo
Cianfanelli and Walter de Cera.

During the murder of Judge Girolamo Tartaglione Cianfanelli had remained at
the wheel of a stolen car armed with a pistol, waiting to drive the other
members of the commando away from the scene. After his arrest on 20 May 1981
he had decided to co-operate with the Italian judicial authorities and had
given them the names of his accomplices and other "Red Brigades" militants.

Walter de Cera had explained in detail how he, the applicant and other
persons had been involved in the attempted robberies of the National
Communications Bank. He had asserted that he had decided to co-operate with
the judicial authorities out of his own desire for reconciliation and that
this had been a moral choice not influenced in any way by the inducements
provided for in the legislation concerning "pentiti" (i.e. self confessed
criminals who had agreed to co-operate with the authorities).

The Assize Court held that Cianfanelli and de Cera had each independently
stated that the applicant had been an active member of the "Red Brigades" and
had then committed the offences charged against him in the indictment. Their
statements had

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Been corroborated by those of other co-defendants and a large body of
persuasive circumstantial evidence. Furthermore, the court had found no
reason to doubt the truth of the testimony it had heard.

The Ticino Cantonal Court of Cassation's judgment of 6 April 1990

The applicant and the prosecution appealed to the Federal Court, asking
it to quash the above judgment.

The applicant contested in particular the jurisdiction of the Swiss
courts and pleaded the unlawfulness of the retroactive application of the
Criminal Code.

State Counsel asked for the case to be remitted to the cantonal authorities
and for the applicant to be sentenced to life imprisonment in accordance
with the prosecution submissions.

On 5 June 1990 the applican5t also lodged a public law appeal, claiming that
he had not had a fair trial before the cantonal authorities. He asserted
that the Assize Court had assessed the evidence in an arbitrary manner,
particularly with regard to the following points:

the statements of his co-defendants who had agreed to co-operate (the
"pentiti"), the expert reports and statements of two Italian experts about
the weapon used to kill Judge Girolamo Tartaglione, the judgments delivered
in Italy in the trial concerning the kidnapping and murder of Aldo Moro,
the hearing of two Swiss police officers and two Italian police officers,
the statements of persons questioned in Italy in his absence and at a non
public hearing, the witnesses he had wanted to call

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In two judgments dated 9 April 1991, served on the applicant together with
the reasons on 26 March 1992, the Federal Court dismissed the applicant's
appeals.

Ruling on the applicant's appeal in cassation, the Federal Court affirmed
the jurisdiction of the Swiss courts, considering the Article 6 of the
Swiss Criminal Code was applicable to the case. That Article provided. The
present Code shall be applicable to any Swiss national who has committed
abroad a crime or offence in respect of which Swiss law permits extradition,
provided that the act concerned is also a criminal act in the State where
it has been committed and that the person responsible is in Switzerland
or is extradited to Switzerland on account of his offence. The Federal
Court held that the extension of Swiss jurisdiction to offences committed
by Swiss nationals abroad was based on the principle of solidarity with
other States and the need to ensure that criminals who, because of their
Swiss nationality, could not be extradited did not go unpunished.

Under that interpretation, the conditions of applicability of Article 6
of the Swiss Criminal Code were fulfilled if the person alleged to have
committed the offence was a Swiss citizen at the time when it was committed
or at the time of his arrest with a view to his extradition to Switzerland
and prosecution there.

Ruling on the applicant's public law appeal, the Federal Court noted that
under the Italian legislation on "pentiti" the applicant's co-defendants in
the Italian proceedings, who were questioned by the Assize Court in Lugano
and Rome not as witnesses but merely as persons providing information,
had been given extremely light sentences and considerable advantages,
such as conditional release, as a reward for their co-operation with the
Italian authorities.

However, the Ticino criminal authorities had not made use of any practice
similar to that whereby a defendant is allowed to turn Queen's evidence,
which the practice introduced by the Italian regulations on terrorists
co-operating with the authorities resembled.

The Federal Court ruled that it would be contrary to the principle of
unfettered discretion to assess evidence, which was enunciated in federal
law, to consider generally inadmissible all statements given in the form of
"Queen's evidence by foreign nationals".

The Federal Court held in that connection that the judges and jurors were
aware that the credibility of the "pentiti" was an important issue. That is
why they had not been heard as witnesses, but as co-defendants and had not
been asked to take the oath. Their statements had been considered credible
because they were corroborated by a large body of circumstantial evidence
and because no important aspect of their precise and consistent statements
had been shown to be false.

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The Federal Court concluded that the use of the statements of the "pentiti"
had not infringed the applicant's right to a fair trial.

With regard to the weapon used to kill Judge Girolamo Tartaglione, the
Federal Court pointed out that the Assize Court had appointed a Swiss
expert to produce a new report. It considered that the applicant had not
explained in what way the Assize Court had acted arbitrarily, as he alleged,
in regarding the previous reports, submitted by two Italian experts, merely
as documents, and these experts' statements merely as witness statements.

With regard to the judgments delivered in Italy, the Federal Court stated
that these had been read out during the first instance trial proceedings,
apart from passages concerning the acts of which the applicant stood
accused. At the end of autonomous proceedings the Assize Court had given
its own judgment. There had thus been no infringement of the principles
of direct evidence, viva voce testimony or the presumption of innocence.

With regard to the hearings held by the Assize Court in Italy, the Federal
Court held that in this case the applicant's absence from a limited part
of the proceedings was not contrary to the principle of a fair trial. The
applicant's absence from the hearings at which evidence was taken in Italy
was not imputable to the Assize Court but was the indirect consequence of
proceedings previously brought against him in Italy. The records of the
hearings held in Italy had been read out in his presence when the trial
resumed at the Assize Court in Lugano. The applicant had not established
that through his absence from the hearings held in Italy he had been
prevented from questioning those who had made statements incriminating
him. He could, in particular, have asked the court to arrange for such
questions to be put during a second visit to Italy.

With regard to the absence of the applicant's counsel from the hearings held
in Italy the Federal Court noted that they had refused to go there without
a valid reason and had thus waived the right to conduct the applicant's
defence in his absence. The applicant knew that his counsel would not be
participating in the taking of evidence in Italy. Nevertheless, he had not
availed himself of the possibility of having a lawyer appointed under the
legal aid scheme for that stage of the proceedings.

With regard to respect for the principle of public hearings, the Federal
Court observed that the public had not been excluded except in so far as
a security pass was required for access to Paliano prison.

The Federal Court also observed that the Assize Court could not have
resolved the problem concerning the taking of evidence in any other wax. The
principle of

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proportionality had been respected , and all the conditions for an
exceptional and partial derogation from the public proceedings principle
for a small portion of the trial had been satisfied.

The Federal Court held that the records of the taking of evidence had been
read out with the aim of attenuating, as far as possible, the disadvantage
the applicant was at as a result of the fact that neither he nor his
counsel had attended the hearings in Italy.

With regard to the failure to hear the defence witnesses, the Federal Court
observed that the Court of Cassation's finding that the defence had waived
their request that these witnesses be heard had not been arbitrary.

The Federal Court also dismissed the applicant's complaint that the Assize
Court had not done what was necessary to remove the obstacles preventing the
transfer of the Italian prisoners called by the defence. It further held
that these prisoners, contrary to the claims they made in their telegram,
had never intended to participate in the proceedings in the Lugano Assize
Court. As regards the alleged delay in passing on their telegram, the Federal
Court observed that the applicant could have retracted his decision not to
call the defence witnesses even after the Assize Court's return from Italy.

With regard to the Assize Court's to hear witness evidence from two officers
of the cantonal police on the subject of the pressure allegedly brought to
bear on the "pentiti" by Italian police officers present at the hearing,
the Federal Court observed that the applicant himself did not have any
material evidence to back up his allegations. Even if the Italian police
officers had brought pressure to bear on the "pentiti", the cantonal police
officers would probably not have been aware of this.

With regard to the applicant's allegation that the Glisenti pistol had
been arbitrarily presumed to be the weapon used to kill the judge, the
Federal Court noted that this weapon had been found to be the weapon used
to commit the crime not merely on the basis of a Swiss expert's report but
also on the basis of other evidence, including in particular the testimony
of Cianfanelli.

Lastly, with regard to the other complaints, the Federal Court observed
that the applicant had done no more than submit other possible conclusions
in place of the Assize Court's conclusions. Having regard to the cautious
assessment of the credibility of the "pentiti", and taking into account
weighty evidence corroborating relevant aspects of their statements,
there was no reason to believe that the cantonal judges had assessed the
evidence in a manifestly untenable way.

COMPLAINTS

1. The applicant complains of the retroactive application of the criminal
law. He alleges that he was convicted by a court that did not have
jurisdiction and that he is the victim of unlawful imprisonment.

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He asserts in particular that Article 6 of the Swiss Criminal Code cannot
be applied retroactively. He maintains that this provision clearly states,
and has always been interpreted so to state, that the Criminal Code is
applicable to any Swiss national who has committed a crime. At the time when
the offence was committed he was incontestably not a Swiss national. The
Federal Court interpreted Article 6 of the Swiss Criminal Code in an unusual
and unforeseeable way. According to the Commission's case-law however,
the manner in which the courts will define the constituent elements of an
offence must be foreseeable for any person with appropriate legal advice
(No. 8710/79, Dec. 7.5.81, D.R. 28 p. 77).

The applicant alleges a violation of Article 5 para. 1 (a) and Article 7
of the Convention.

2. The applicant further complains that he did not have a fair trial
before the Swiss courts. He alleges violation of paragraphs 1, 2, 3 (b)
and 3 (d) of Article 6 of the Convention.

a. He asserts in the first place that the trial was conducted in an
atmosphere of intimidation for which the press bore responsibility.

He submits in particular that immediately after his arrest he was the victim
of a press campaign that had no precedent in its intensity, persistence or
impact in a small canton like Ticino. More than seven hundred articles,
allegedly, were published on the Baragiola case up until the date of his
conviction, and it is submitted that this campaign influenced both public
opinion and the members of the Assize Court, particularly the jurors,
against him.

Even before the opening of the trial the press, radio and television had
established his guilt and described him as a terrorist and member of the
"Red Brigades". The members of the Assize Court had also been influenced
by the president of the cantonal council's reference to him as a cruel
terrorist (efferato terrorista). These remarks were made during a debate
in the cantonal council broadcast on radio and television on 19 September
1988. In addition, Swiss Italian language television broadcast a programme
on terrorism on 6 October 1989, i.e. three days before the opening of the
trial. Lastly, the negative influence of the media had been manifested
through acts of vandalism, insults and telephone threats against members
of his family and his lawyers.

The applicant complains in particular that during the intervals between
hearings the judges and jurors were able to read the newspapers. Although
the Federal Court had found that jurors needed to keep abreast of
current affairs, application of that argument to the present case was
not appropriate, given the sheer scale of the press campaign when seen in
relation to the geographical, political and cultural characteristics of
the canton of Ticino, particularly its low population and the tendency of
its inhabitants to believe everything printed in the press.

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That being the case, access to the media seriously compromised the
objectivity of the judges and jurors. The vast majority of the articles in
question made him out to be guilty, on the basis of information allegedly
leaked by the Ticino authorities, particularly the police and the cantonal
prosecution service, and by the Italian authorities.

The prejudicial influence of the media over the Assize Court was also
manifested in the conduct of the president during the trial and in the
categorical rejection of all his applications aimed at preserving the
rights of the defence.

Lastly, the applicant considers that, contrary to the opinion expressed
by the Federal Court, the oath sworn by the jurors at the beginning of the
trial did not constitute an appropriate and sufficient guarantee of their
impartiality and did not eliminate the need to make them aware of the danger
of a trial by media. However, they were given no warning nor was nay measure
taken by the Assize Court to bring the influence of the media under control,
even though the defence had requested this several times. The applicant
considers that it was incumbent upon the Swiss judicial authorities to
take the necessary measures to ensure that his right to a fair trial was
respected, to prohibit the disclosure of confidential information and to
guarantee the authority and impartiality of the judiciary.

He alleges violation of the right to a fair trial before an impartial
tribunal and of the presumption of innocence, as guaranteed by Article 6
paras. 1 and 2 of the Convention.

b. Relying on Article 6 para. 1 of the Convention, the applicant complains
that his conviction was essentially based on the statements of persons
whose sentences had been substantially reduced, pursuant to the Italian
legislation on "pentiti". He asserts that this legislation creates the
risk of false accusations, and is contrary to Swiss procedure, under which
recourse to inducements, threats or other means of coercion in order to
obtain statements is prohibited. But his co-defendants in the Italian
proceedings were hear by the Assize Court omitted to warn the jurors about
the danger of the truth being obscured by such statements. Moreover, it
wrongly refused to carry out any investigation to verify whether pressure
had been brought to bear on the "pentiti".

In its judgment of 9 April 1991 the Federal Court did not take into account
either the criticisms expressed by legal writers in connection with the
judgment in the Schenk case given by the European Court of Human Rights
on 12 July 1988 or the reservations expressed by the Court itself in that
judgment. Furthermore, contrary to the assertions of the Federal Court,
the Assize Court did not take into account the special situation in which
the "pentiti" found themselves, even though it had questioned them not as
witnesses but as co-defendants. In fact, no distinction had been made

115

between the "pentiti" and the other persons questioned. In addition, the
Court of Cassation's judgment of 6 November 1989 gave the figure for the
co-defendant's expenses under the heading witnesses.

c. The applicant further complains that by refusing to call two cantonal
police officers to give evidence as witnesses on the subject of the pressure
brought to bear on the "pentiti" by the Italian police the Assize Court
assessed the evidence without hearing it, in breach of Article 6 of the
Convention.

d. The applicant further complains that the Assize Court questioned four
persons in Italy in his absence, although he had expressly requested the
opportunity to confront them. He never unequivocally waived his right to
be present at the hearings for the taking of evidence held in Rome. Both
the investigating authorities and the president of the Assize Court had
declared in writing that he would have that right. However, when the
Assize Court learned that the Italian authorities would not grant him a
safe conduct it did not call off the hearings in Italy, as it should have
done. Without even mentioning its earlier promise to hold the hearing in
Italy in the applicant's presence, it merely asked him whether he intended
to accompany the court to Rome. Thus the Assize Court broke faith with
the applicant and infringed the principle of a fair trial.

His counsel did not participate in the hearings in Italy because, in his
absence they would not have been able to defend his rights properly. No
other measure, such as the theoretical possibility of asking for a second
set of hearings to be held in Italy or the presence of his lawyers at those
actually held there, could have taken the place of a direct confrontation
between the applicant and the persons questioned, or compensated for the
unfairness of the trial. Nor can the possibility of asking those concerned
questions in writing be held to be equivalent to the right to question
witnesses for the prosecution oneself in open court. There was accordingly
also a violation of Article 6 paras. 1 and 3 (d) of the Convention.

e. In addition, at the hearings held in Rome, the principle of public trial,
as guaranteed by Article 6 para. 1 of the Convention, was infringed. Secrecy
of the proceedings was the principle applied, while publicity was the
exception. Access to the room in which the hearing was held was reserved
for those in possession of a security pass issued by the Ministry of
Justice. It was thus not the court itself which decided to what extent
the trial should be public, but the Ministry of Justice. Moreover, in
view of the importance of what was at stake, it was not just a question
of a partial and exceptional lack of publicity during a short stage of
the trial, as the Federal Court held.

The applicant maintains that the violation of the principle of public trial
was all the more serious because, when the proceedings resumed in Lugano,
the Assize Court read out the records of the hearings for the taking of
evidence in Italy. His conviction was based in part on those records,
but the persons questioned in Italy did not confirm the truth of their
statements reported in these records.

116

f. Relying on Article 6 para. 3 (d) of the Convention, the applicant
complains that the Assize Court omitted to take the necessary measures
to ensure that the witnesses for the defence in prison in Italy were
heard. These witnesses had protested only about the arrangements made for
their transfer, not against the principle of giving evidence as such. The
defence had never waived its request that they be heard.

The applicant further complains that the telegram of 20 October 1989 in
which the defence witnesses gave the reasons why they had not appeared
before the Assize Court was not communicated to the parties until 27
October 1989, i.e. after the Assize Court's return to Lugano. The need
to check the source of the telegram should not have prevented it being
passed on immediately to the defence. It would have been an important
factor to be taken into consideration in connection with the question of
participation by the defence in the hearings due to take place in Rome,
and the defence was compelled to reach a decision on this question without
having all the necessary information.

h. In addition, the applicant complains that the Assize Court questioned two
Italian police officers and two Swiss police officers about the statements
they had made in his absence during the investigation stage. He alleges that
in so doing the Assize Court based his conviction on indirect testimony,
without giving him sufficient opportunity to challenge these witnesses
and infringing the principles established by the European Court of Human
Rights in the Kostovski judgment of 20 November 1989 (Series A no. 166).

i. The applicant further complains that the Italian judgments decisively
influenced his conviction in Switzerland, in breach of the principles of
viva voce testimony, direct evidence and the presumption of innocence. He
alleges that the Assize Court merely repeated the conclusions reached in
these judgments and neglected to form its own autonomous opinion as to
his guilt.

Moreover, the Assize Court's judgment was based on arbitrary assessment of
the facts and the evidence. With regard to the murder weapon, the Assize
Court held to be scientifically established facts which, according to the
Swiss expert's report, were merely possible. Nor did it take into account
contradictions between the statements

117

made by a "pentito" and those of certain eye-witnesses concerning the
clothes and appearance of the murderers. Lastly, the Assize Court did not
take into account the fact that the applicant's car, which, according
to the prosecution, had been used as a means of transport for shooting
practice sessions, was at the material time in England in the possession
of another person.

3. Lastly, the applicant complains that he was convicted twice in respect
of the same acts, and that the Swiss authorities did not take any measure
capable of protecting him from the risk that both judgments, the Italian
and the Swiss, might be enforced. The applicant alleges violation of
Article 4 of Protocol No. 7.

THE LAW

1. Relying on Article 7 of the Convention, the applicant complains that,
through the retroactive application of the criminal law he was convicted
by courts which lacked jurisdiction, since the Swiss Criminal Code, under
Article 6 thereof, is applicable to any Swiss national "who has committed
abroad a crime or offence". But at the time of the acts he stood accused of
he was an Italian national, not a Swiss national. He complains in particular
of the Federal Court's unforeseeable interpretation of that provision.

Article 7 para. 1 of the Convention is worded as follows: "No one shall
be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence under national of international
law at the time when it was committed ?"

The Commission points out that Article 7 para. 1 of the Convention enshrines
the principle that only the law can define a crime and prescribe a penalty
(nullum crimen, nulla peona sine lege) and the principle that the criminal
law must not be extensively construed to an accused's detriment, for instance
by analogy; it follows from this that an offence must be clearly defined
in law. This condition is satisfied where the individual can know from the
wording of the relevant provision and, if need be, with the assistance of
the court's interpretation of it, what acts and omissions will make him
liable (cf. Eur. Court H.R., Kokkinakis v. Greece judgment of 25 May 1993,
Series A no. 260-A, p. 22, para. 52).

The Commission notes that, according to the Federal Court, the applicability
of Article 6 of the Swiss Criminal Code to cases in which an offender
has acquired Swiss nationality after committing an offence is not barred
by the principle "nullum crimen sine lege certa", applicable to the
interpretation of criminal statutes. The Commission recalls that it is,
in the first instance, for the national authorities, and in particular the
courts, to interpret and apply domestic law (cf. Eur. Court H.R., previously
cited Kokkinakis v. Greece judgment, p. 19, para. 40, and Hadjianastassiou
v. Greece judgment of 16 December 1992, Series A no. 252, p. 18 para. 42).

118

The Commission notes in the first place that Article 6 of the Swiss Criminal
Code does not specify the constituent elements of an offence. That provision
does not in itself define an offence. It settles a question of judicial
practice, namely the applicability of the provisions of the Criminal
Code. In this case the Federal Court's interpretation of the provision
concerned does not appear to be unreasonable or arbitrary. On the contrary,
it is consistent with a policy of judicial co-operation between European
legal systems based on the rule of law.

Accordingly, the Commission cannot find any appearance of a violation of
Article 7 para. 1 of the Convention. It follows that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 of the Convention.

2. The applicant, who proclaims his innocence, also complains that he did
not have a fair trial before the Swiss courts.

He complains in particular of the prejudicial influence of the media over
the members of the Assize Court, the importance attached to the statements
of the "pentiti", the failure to hear two cantonal police officers, the
taking of evidence from persons in prison in Italy in his absence at a
non-public hearing, the failure to hear witnesses for the defence, the
acceptance in evidence of the statements and reports of two Italian experts,
the use of indirect evidence and, in general, arbitrary assessment of the
facts and the evidence.

Paragraphs 1, 2 and 3 (d) of Article 6 are worded as follows:

"1. In the determination of ... any criminal charge against him, everyone
is entitled to a fair and public hearing ... by an independent and impartial
tribunal ... Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, ... to the extent
strictly necessary in the opinion of the court in special circumstances
where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(...)

d. to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;

(...)"

119

a. With regard to the virulent press campaign which he claims was conducted
against him, the applicant maintains that he was the victim on that account
of an infringement of his right to a fair trial before an impartial tribunal
and of the principle of the presumption of innocence, these infringements
being imputable to the Swiss authorities. He considers that it was incumbent
upon the Swiss authorities to take the necessary measures to prohibit the
disclosure of confidential information and to guarantee the authority and
impartiality of the judiciary.

The Commission has examined this complaint from the standpoint of paragraphs
1 and 2 of Article 6 of the Convention, under which every person charged
with a criminal offence has the right to a fair trial and to be presumed
innocent until proved guilty.

The Commission has already acknowledged that in certain cases a virulent
press campaign can adversely affect the fairness of a trial by influencing
public opinion, and consequently the jurors called upon to decide the guilt
of an accused (see, in particular, No. 10486/79, Hauschildt v. Denmark,
Dec. 9.10.86, D.R. 49 pp. 86, 101, No. 10857/84, Bricmont v. Belgium,
Dec. 15.7.86, D.R. 48 p. 106, Nos. 8603/79, 8722/79 and 8723/79, joined,
Dec. 18.12.80, D.R. 22 p. 147, 227, Nos. 7572/76, 7586/76 and 7587/76,
joined, G. Ensslin, A. Baader und J. Raspe v. Federal Republic of Germany,
Dec. 8.7.78, D.R. 14 pp. 64, 112).

The Commission notes that the applicant's arrest and trial were discussed
in a large number of radio and television programmes and in the course
of a large-scale press campaign, particularly in Ticino, but also in the
other Swiss cantons.

While it is true that, because of the public's right to information,
particular importance should be attached to the freedom of the press, a fair
balance must nevertheless be struck between that freedom and the right to a
fair trial guaranteed by Article 6 of the Convention. In a democratic society
within the meaning of the Convention that right holds such a prominent
place that a restrictive interpretation of Article 6 para. 1 would not
correspond to the aim and purpose of that provision (cf. Eur. Court H.R.,
Delcourt judgment of 17 January 1970, Series A no. 11, p. 15, para. 25).

The Commission notes that the interest of the media in the "Garagiola
case", and the considerable effect it had on public opinion, particularly
in the canton of Ticino, were largely the result of the proximity of Italy
and the terrorist activities of the "Red Brigades" during the 1970s, and
of the role played by the cantonal government in the case, in view of the
ease with which the applicant had been able to change his nationality and
surname and get a job working for Swiss Italian language radio service in
spite of his antecedents.

The Commission observes that one unusual feature of the present case is
that the applicant had already been found guilty in Italian judgments which
had become final. Neither the press nor indeed the authorities responsible
for criminal policy can be

120

expected to refrain from making any statement about the guilt of a defendant
when they possess such information as in the present case, the applicant's
previous convictions in Italy.

The Commission considers that the remark made by the president of the
cantonal council on 19 September 1988 in which he described the applicant
as a cruel terrorist should be placed in this context: Admittedly, the
Commission has held that the presumption of innocence is binding not only
on the criminal court determining a criminal charge but also on the other
authorities of the State (cf., in particular, No. 9295/81 Dec. 6.10.82,
D. R. 30 p. 227, No. 7986/77, Dec. 3.10.78, D.R. 13 p. 73). However,
the remark in question was made in a political context more than a year
before the opening of the trial with the aim of providing the public with
an explanation of the administrative authorities' conduct. It referred
to the applicant's conviction in Italy, but could not be interpreted as
suggesting that the applicant was guilty according to Swiss law.

The Commission recalls that what is decisive is not the subjective
apprehensions of the suspect concerning the impartiality required of
the trial court, however understandable, but whether, in the particular
circumstances of the case, his fears can be held to be objectively justified
(see, as the most recent authorities, Eur. Court H.R., Nortier v. Netherlands
judgment of 24 August 1993, Series A no. 267, p. 15, para. 33, and Fey
v. Austria judgment of 24 February 1993, Series A no. 255-A, p. 12 para. 30).

The Commission observes in that connection that the press was not unanimous
in considering the applicant guilty and emphasised the danger of a premature
trial by the press. Moreover the prosecution service published a press
communique with a view to preventing, as far as possible, the dissemination
of incorrect information.

The Commission cannot find any sign of partiality in the Assize Court's
decisions. The Assize Court took account of the particular circumstances
of the case and assessed the evidence carefully. The Commission further
observes that the professional judges and the jurors decided the question of
the applicant's guilt together, thus limiting the risk of media influence
over the jurors. The Commission also notes thus limiting the risk of media
influence over the jurors. The Commission also notes that, although the
interests of the applicant were defended by three lawyers, who assisted
him throughout the trial, the applicant, as the Federal Court noted, did
not make use of the ordinary remedies available to him under cantonal law
in order to appeal against the procedural decisions complained of. Lastly,
the Federal Court also examined in detail the question of media influence
over the members of the Assize Court and reached the conclusion that their
impartiality was not open to doubt.

Consequently, the Commission cannot find, in the particular circumstances of
the case any infringement of the principle of impartiality or, in general,
of the principles of fair trial and the presumption of innocence.

b. The applicant also complains of the importance attached to the statements
of the co-defendants whose sentences had been substantially reduced pursuant
to the Italian

121

legislation on "pentiti". He asserts that these statements were inadmissible
evidence, and alleges that reliance on them made the trial unfair and
violated Article para. 1 of the Convention.

The Commission recalls that the rules gobe3rning the taking of evidence
are in the first place a matter for domestic law and that it is for the
domestic courts, as a general rule to assess the evidence before them. The
Commission's task, under the Convention, is to ascertain whether the
proceedings in their entirety including the way in which evidence was taken,
were fair (see Eur. Court H.R., Saidi v. France judgment of 20 September
1993, Series A no. 261-C, p. 56, para. 43, Edwards v. United Kingdom
judgment of 16 December 1992, Series A no. 247-B, pp. 34, 35, para. 34).

The Commission notes that the statements of the Italian co-defendants
who had given evidence for the prosecution incriminating themselves (the
"pentiti") were not, in Swiss law, unlawfully obtained evidence.

The Commission further points out that, according to its case-law, the
use during a trial of evidence obtained from an accomplice by granting
him immunity from prosecution may put in question the fairness of the
hearing and thus raise an issue under Article 6 para. 1 of the Convention
(cf. No. 7306/75, Dec. 6.10.76, D.R. 7 pp. 115, 118).

It notes that in this case the sentences imposed on the co-defendants who had
given evidence for the prosecution were considerably reduced and alleviated
in other ways under the Italian legislation on "pentiti". As they ran the
risk of losing the advantages they had been given if they went back on
their previous statements or retracted their confessions, their statements
were open to question. It was therefore necessary for the Swiss courts to
adopt a critical approach in assessing the statements of the "pentiti".

Although the Assize Court did not hear the "pentiti" as witnesses, but
merely as persons asked to provide information and exempted from the
obligation to take the oath, for the purposes of Article 6 para. 3 (d)
of the Convention they must be considered witnesses, a term to be given an
autonomous interpretation (cf., among other authorities, Eur. Court H.R.,
Artner v. Austria judgment of 28 August 1992, Series A no. 242 A, p. 10,
para. 19). In this case it should be noted that the applicant had the
opportunity, at a public hearing of the Assize Court in Lugano, to challenge
the statements made against him by his former co-defendants. Furthermore,
it can be seen from the Assize Court's judgment that the finding of the
applicant's guilt was based on a number of different items of evidence
which the Assize Court carefully assessed.

That being the case, the use of the statements of the "pentiti" as evidence
did not deprive the applicant of a fair trial and accordingly was not in
breach of Article 6 para. 1 of the Convention.

122

c. The applicant also complains that the Assize Court refused to question
two cantonal police officers on the subject of the pressure allegedly
brought to bear on the "pentiti" by the Italian police, during their
transfer to Switzerland.

The Commission recalls that Article 6 para. 3 (d) of the Convention does
not give the defence an absolute right to question any witnesses it wishes
to call (see Eur. Court H.R., Vidal v. Belgium judgment of 22 April 1992,
Series A no. 235-B, p. 32, para. 33). A court may thus refuse to examine
witnesses whose testimony is not likely to help establish the truth (see,
in particular, No. 10486/83, Hauschilt v. Denmark, previously cited,
D.R. 49 pp. 86, 102).

The Commission notes that the Assize Court gave as the reason for refusing
to hear the witnesses the applicant wished to call its opinion that
their testimony was not necessary to establish the truth. It does not have
sufficient evidence that on this point the Assize Court's assessment of the
situation was arbitrary. It further notes that the Assize Court adopted a
critical approach in assessing the evidence and in particular took account
of the possibility that the "pentiti" might have confirmed their previous
statements in order not to lose the advantages they had been granted.

The Commission accordingly considers that the applicant was in no way
deprived of effective enjoyment of the rights guaranteed in this regard
by Article 6 of the Convention.

d. The applicant complains that the Assize Court examined some of his former
co-defendants in Italy in his absence and in breach of the principle of
public trial. Their statements formed an important part of the evidence
during the trial in the Assize Court. Consequently, he was found guilty
on the basis of statements he was unable to challenge adequately because
of a considerable curtailment of the rights of the defence. He relies on
paragraphs 1 and 3 (d) of Article 6 of the Convention.

As the requirements of the third paragraph of Article 6 are specific
aspects of the right to a fair trial, guaranteed under paragraph 1,
the Commission will consider these complaints in the light of the two
provisions taken together (see, among other authorities, Eur. Court H.R.,
Melin v. France judgment of 22 June 1993, Series A no. 261-A, p. 11,
para. 21, and Hadjianastassiou v. Greece judgment, previously cited,
Series A no. 252, p. 16, para. 31).

The Commission recalls that evidence must in principle be produced in
the presence of the accused at a public to be admitted as evidence; in
particular, that may be impossible in some cases. The use as evidence
of statements obtained during the preliminary investigation its not in
itself inconsistent with paragraphs 3 (d) and 1 of Article 6. As a rule
these provisions require that the defendant be given an adequate and proper
opportunity to challenge and question a witness against him either at the
time when he makes any

123

statement or at a later stage of the proceedings (see, among other
authorities, Eur. Court H.R., previously cited Saidi v. France judgment,
Series A no. 261-C, p. 56, para. 43, Ludt v. Switzerland judgment of 15
June 1992, Series A no. 238, p. 21, para. 47).

The Commission notes that in the circumstances of this case a direct
confrontation between the applicant and the persons whom it was proposed
to examine in Italy was impossible both in Switzerland, because they
refused to appear before the Assize Court, and in Italy, because the
Italian authorities refused to issue the applicant with a safe conduct.

The Assize Court did not abandon its plan to examine these witnesses, but
invited the applicant to submit in written from the questions he wanted
them to be asked. Considering that a direct confrontation with the persons
concerned was indispensable, the applicant stated that he would not avail
himself of this opportunity. He also objected to his counsel accompanying
the Assize Court to Italy and refused to have a lawyer appointed under
the legal aid scheme for that stage of the proceedings.

The Commission considers that, in those circumstances, the applicant
cannot complain that he did not have the opportunity to examine or have
examined the witnesses against him. It recalls in that connection that a
defendant who has waived the right to take part in criminal proceedings
cannot subsequently complain that he was deprived of the opportunity to
have examined the witnesses against him and to obtain the examination of
witnesses on his behalf 8No. 8386/78, Dec. 9.10.80, D.R. 21 pp. 126, 131).

As regards the complaint that statements taken down in writing during
the investigation were read out to those persons who refused to answer
questions during the taking of evidence in Italy, the Commission recalls
that, provided the rights of the defence are respected, the reading of
such statements is not incompatible with Article 6 paras. 1 und 3 (d)
of the Convention (see above and also, mutatis mutandis, Eur. Court H.R.,
previously cited Artner judgment, Series A no. 242 A, p. 10, para. 22).

However, the concept of a fair trial includes the fundamental right to
adversarial procedure in criminal proceedings. That right means that each
party must be given the opportunity to have knowledge of and comment on the
observations filed and the evidence adduced by the other (see Eur. Court
H.R., Brandstetter v. Austria judgment of 28 August 1991, Series a no. 211,
p. 27, paras. 66 und 67). In order to remedy, as far as possible, the lack
of adversarial argument during the investigation and the taking of evidence
in Italy, the Assize Court read out the records of the statements made by the
persons examined there at a public hearing held immediately after its return
from Italy. The Commission notes that the applicant objected to the taking
of evidence in Italy and the reading out of these records, as such. However,
he did not contest the result of the taking of evidence. After the statements
of the persons examined in Italy had been read out in the Assize Court,
the applicant did not request that further questions be put to them at a
further hearing in Italy, although he could have done so. The Commission
considers that, in those circumstances, the Assize Court was entitled

124

to take account of these statements, especially as they seemed to be
corroborated by other evidence, including the statements of Cianfanelli
and Walter de Cera, and by a large body of other circumstantial evidence
all pointing in the same way (see, mutatis mutandis, Eur. Court H.R.,
Isgrd judgment of 19 February 1991, Series A no. 194-A. p. 13, para. 35).

Consequently, the applicant's absence from the hearings held in Italy did
not, in the circumstances of this case, infringe the rights of the defence,
nor did it deprive the applicant of a fair trial.

e. With regard to the alleged violation of the principle of public trial,
the Commission notes that public access to the hearing held in Paliano
prison was not generally prohibited, but was restricted in that only
persons bearing security passes were admitted. The Commission notes that
this was merely a restriction of public access for prison security reasons
and concerned only one isolated part of the trial. The Commission points
out that the records of the statements made were subsequently read out
at a public hearing of the Assize Court in Lugano and that the applicant,
who emphasises the importance of these statements, objected to their being
read, but did not contest their content. Consequently, the Commission
considers that the restriction of publicity during the hearing held in
Paliano prison did not infringe Article 6 of the Convention.

f. The applicant complains that the Assize Court omitted to examine the
defence witnesses in prison in Italy. He alleges that this impairment of
the equality of arms was all the more serious because the only persons
the court examined in Italy were those whose statements incriminated
him. Contrary to the Federal Court's findings, he had clearly stated that
he did not wish to waive his request that they be heard.

The Commission recalls that, as a general rule, it is for the national courts
to assess the evidence before them and the relevance of the evidence which
defendants seek to adduce. More specifically, Article 6 para. 3 (d) leaves
it to them, again as a general rule to assess whether it is appropriate to
call witnesses, in the "autonomous sense given to that word, it does not
require the attendance and examination of every witness on the accused's
behalf its essential aim, as is indicated by the words 'under the same
conditions', is a full 'equality of arms' in the matter". The concept of
"equality of arms" does not, however, exhaust the content of paragraph 3
(d) of Article 6, nor that of paragraph 1, of which this phrase represents
one application among others. The task of the Convention institutions
is to ascertain whether the proceedings in issue, considered as a whole,
were fair for the purposes of paragraph 1 (see, among other authorities,
Eur. Court H.R., previously cited Ludi v. Switzerland judgment, Series A
no. 238, p. 20, para. 43).

In this case, as the Federal Court held, the Court of Cassation's finding
that by deciding not to participate in the taking of evidence in Italy the
defendant had unconditionally waived his request that the witnesses on his
behalf in prison in Italy be examined was not arbitrarily reached. Moreover,
the reasons given by the witnesses

125

for the defence in their telegram explaining their failure to attend the
hearing in the Assize Court were unfounded. The Italian authorities never
contemplated compelling these witnesses, by force and against their will,
to appear before the Assize Court. Lastly, even after the Assize Court's
return from Italy, the applicant could still have repeated his request
that these witnesses be examined.

The Commission takes the view that, having regard to the reasons given, the
Assize Court's decision not to examine the witnesses initially requested by
the defence was not arbitrary. Consequently the failure to examine them did
not, in the circumstances of this case, infringe the rights of the defence,
nor did it deprive the applicant of a fair trial.

g. The applicant complains that the Assize Court examined the Italian
experts and took into account the reports concerning the murder weapon they
had filed in the earlier proceedings in Italian courts. He maintains that,
in those circumstances, the impartiality of these experts was open to doubt.

The Commission will examine the applicant's complaint under the general
rule of paragraph 1 of Article 6 of the Convention, whilst having due
regard to the requirements of paragraph 3. It notes that, read literally,
sub-paragraph (d) of paragraph 3 relates to witnesses and not experts. In
any event the guarantees contained in paragraph 3 are constituent elements,
amongst others, of the concept of a fair trial set forth in paragraph
1. In this context it is necessary to take into consideration the position
occupied by the experts throughout the proceedings and the manner in which
they performed their functions (cf. Eur. Court H.R., previously cited
Brandstetter v. Austria judgment, Series A no. 211, pp. 20,21, para. 42).

However, the Commission notes that the experts concerned were not heard by
the Assize Court as experts but as witnesses, and their reports, although
admitted as evidence, had no more probative value in the court's eyes
than any other document, not that which expert reports ordered by a court
generally have. It was open to the applicant and his counsel to question
these witnesses. Consequently, the Commission cannot discern any evidence
that either the applicant's right to a fair trial or the principle of
equality of arms inherent in the concept of a fair trial (see Eur. Court
H.R., Bonisch judgment of 6 May 1985, Series A no. 92, p. 15, para. 32)
was infringed in this case.

h. The applicant further complains that the statements of the two Italian
police officers and the two Swiss police officers were not original evidence
but hearsay. He asserts that he was unable to challenge their testimony.

The Commission notes that the applicant has not adduced any evidence in
support of this complaint and that it does not appear from the file that his
conviction was based on the statements made by the police officers concerned.

i. The applicant complains that the Swiss courts based their decisions on
an arbitrary assessment of the facts and the evidence, as well as on the
conclusions set out in the Italian judgments, in breach of the principles
of viva voce testimony, direct evidence and the presumption of innocence.

126

However, the Commission considers that the reasons given in the judicial
decisions criticised by the applicant show that the courts did not draw
arbitrary conclusions from the facts submitted to them. Moreover, nothing
in the file would justify the assertion that the Assize Court based the
applicant's conviction on the judgments pronounced in Italy. The Assize Court
gave judgment on the question of the applicant's guilt in accordance with
its reasonable belief after considering a large body of evidence taken
in the course of proceedings which, as the Commission has just found,
satisfied in every respect the requirements of Article 6 of the Convention.

It follows that the applicant's complaints under Article 6 of the Convention
are manifestly ill-founded and must be rejected, pursuant to Article 27
para. 2 of the Convention.

3. Lastly, relying on Article 4 of Protocol No. 7, the applicant complains
that he was convicted twice in respect of the same acts, contrary to the
'"ne bis in idem" principle.

Paragraph 1 of that provision is worded as follows:

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.

However, it is clear, from the express terms of this provision, that it
upholds the "ne bis in idem" principle only in respect of cases where
a person has been tried or punished twice for the same offence by the
courts of a single State. But the applicant was first convicted in Italy,
whereas the second conviction, in respect of the same acts, was pronounced
by a Swiss court.

It follows that this part of the application must be rejected as being
incompatible ratione materiae with this provision within the meaning of
Article 27 para. 2 of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE