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European Court of Human Rights


You are here: BAILII >> Databases >> European Court of Human Rights >> FERRANTELLI AND SANTANGELO v. ITALY - 19874/92 [1996] ECHR 29 (7 August 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/29.html
Cite as: (1997) 23 EHRR 288, 23 EHRR 288, [1996] ECHR 29

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In the case of Ferrantelli and Santangelo v. Italy (1),

The European Court of Human Rights, sitting, in accordance with

Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of Rules of Court B (2), as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Gölcüklü,

Mr L.-E. Pettiti,

Mr R. Macdonald,

Mr C. Russo,

Mr J. De Meyer,

Mr J. Makarczyk,

Mr D. Gotchev,

and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy

Registrar,

Having deliberated in private on 23 February and 26 June 1996,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

1. The case is numbered 48/1995/554/640. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since its

creation and on the list of the corresponding originating applications

to the Commission.

2. Rules of Court B, which came into force on 2 October 1994, apply

to all cases concerning the States bound by Protocol No. 9 (P9).

________________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") and by the Italian Government ("the

Government") on 29 May 1995, within the three-month period laid down

by Article 32 para. 1 and Article 47 of the Convention (art. 32-1,

art. 47). It originated in an application (no. 19874/92) against the

Italian Republic lodged with the Commission under Article 25 (art. 25)

by two Italian nationals, Mr Vincenzo Ferrantelli and

Mr Gaetano Santangelo, on 2 February 1992.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Italy recognised the

compulsory jurisdiction of the Court (Article 46) (art. 46); the

Government's application referred to Articles 45, 47 and 48 (art. 45,

art. 47, art. 48). The object of the request and of the application

was to obtain a decision as to whether the facts of the case disclosed

a breach by the respondent State of its obligations under Article 6

para. 1 of the Convention (art. 6-1).

2. In response to the enquiry made in accordance with

Rule 35 para. 3 (d) of Rules of Court B, the applicants stated that

they wished to take part in the proceedings and designated the lawyer

who would represent them (Rule 31). The lawyer was given leave by the

President of the Court to use the Italian language (Rule 28 para. 3).

3. The Chamber to be constituted included ex officio Mr C. Russo,

the elected judge of Italian nationality (Article 43 of the Convention)

(art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 4 (b)). On 8 June 1995, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mr F. Gölcüklü, Mr L.-E. Pettiti,

Mr R. Macdonald, Mr J. De Meyer, Mr J. Makarczyk and Mr D. Gotchev

(Article 43 in fine of the Convention and Rule 21 para. 5) (art. 43).

4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,

acting through the Registrar, consulted the Agent of the Government,

the applicants' lawyer and the Delegate of the Commission on the

organisation of the proceedings (Rules 39 para. 1 and 40). In a letter

of 21 December 1995 the Government informed the Registrar that they did

not intend to submit a memorial and referred the Court to their written

pleadings before the Commission. The applicants did not lodge written

observations, but on 9 February 1996 submitted their claims for just

satisfaction.

5. On 11 January 1996 the Commission had produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

6. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

21 February 1996. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, on secondment to the

Diplomatic Legal Service,

Ministry of Foreign Affairs; co-Agent,

Mr G. Fidelbo, magistrato, on secondment to the

Legal Affairs Department, Ministry of Justice, Counsel,

Mrs M.A. Saragnano, magistrato, on secondment to the

Legal Affairs Department, Ministry of Justice, Adviser;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicants

Mr F. Merluzzi, avvocato, Counsel.

The Court heard addresses by Mr Trechsel, Mr Merluzzi and

Mr Raimondi.

AS TO THE FACTS

7. Mr Vincenzo Ferrantelli and Mr Gaetano Santangelo, who were

born respectively in 1958 and 1959 at Alcamo (Trapani) and who

currently live in Brazil, have a heavy prison sentence pending against

them following their conviction by the Caltanisetta Court of Appeal on

6 April 1991 in a judgment that was upheld by the Court of Cassation

on 8 January 1992 (see paragraphs 30 and 32 below).

A. The investigation

1. The beginning of the inquiry

8. On 26 January 1976 two police officers (carabinieri) were

murdered at a barracks in Alcamo Marina. Some clothes, firearms and

ammunition were found to be missing.

9. In the night of 11 to 12 February the Alcamo police arrested

Mr G.V. who was driving a car with false registration plates. He was

found to be unlawfully in possession of firearms. The police concluded

on the basis of an initial inspection that one of the two pistols that

they had seized had been used to commit the murders and the other had

been stolen from the barracks.

10. G.V. was taken to the police station and gave the name of a

lawyer, who was not able to come immediately. In the latter's absence,

G.V. agreed to an informal interview in the course of which he stated

that he belonged to a revolutionary group. Shortly afterwards he asked

to see his father, in whose presence he made other revelations

concerning the circumstances of the raid, which had been directed

against the Italian State rather than the two police officers. While

his father was out of hearing, G.V. told the investigators that the

applicants and two other persons, G.M. and G.G., had taken part in the

crime. All four were friends of his; Mr Ferrantelli was in fact his

cousin. G.V. also gave the police information as to the whereabouts

of the articles stolen during the attack.

11. When his lawyer arrived at 3 a.m. on 13 February, G.V.

confirmed that he had committed the murders, but retracted his

statements concerning the involvement of the other persons. A little

later he repeated in writing his first statements indicating what part

each of those concerned had played.

2. The applicants' arrest

12. The applicants and the other suspects were arrested at their

homes between 4 and 5 a.m. on 13 February 1976. They were taken to the

Alcamo barracks and were immediately questioned by the carabinieri.

At first they were questioned on their own and then, after 10 a.m., a

lawyer appointed by the authorities to act for them was present. They

all admitted having taken part in the attack, but gave accounts that

were inconsistent with each other and with that given by G.V.

13. According to the admissions register of Trapani prison, when

the applicants arrived at the prison they appeared to be in a state of

shock and had bruises and abrasions. Mr Ferrantelli told the staff of

the admissions office that he had slipped and injured himself.

14. In the course of the afternoon of 13 February, the Trapani

public prosecutor questioned all the suspects. G.V. reaffirmed that

he had committed the double murder, but again retracted his statements

concerning the involvement of the applicants, maintaining that he had

made them under duress. Mr Ferrantelli and Mr Santangelo also

retracted their confessions. Mr Ferrantelli likewise referred to

pressure brought to bear on him by the investigators and ill-treatment

at their hands. Mr Santangelo claimed that the police officers had

persuaded him that it was in his interests to make a confession

because, in view of the damming accusations made by G.V., he would be

sentenced to life imprisonment if he did not. At a later stage he

maintained that he too had suffered ill-treatment.

Expert medical examinations established that the applicants had

slight injuries to their bodies.

15. After a period during which he refused all communication with

the investigators and his family, in July 1977 G.V. wrote a letter to

the investigating judge asking to be questioned. During his interview

with the judge, which was attended by a lawyer appointed by the

authorities to act for him, he indicated that he intended to make new

revelations in writing.

On 26 October 1977 he was found hanged from a high window in

the prison hospital with a handkerchief in his mouth. G.V had only one

arm, but the authorities concluded that he had committed suicide.

3. The committal for trial

16. On 23 January 1978 the applicants, who had not had an

opportunity to examine or have examined G.V. in the proceedings prior

to his death, were committed for trial with the two other accused.

17. On 18 May 1978 the Trapani Assize Court quashed the committal

and ordered further inquiries to establish whether the applicants'

allegations about the pressure to which they had been subjected could

be substantiated, to identify the presumed perpetrators of the

ill-treatment and to verify whether the statements to the police

officers were credible and voluntary.

The prosecuting authority lodged an appeal on points of law,

which was dismissed in January 1979.

18. As the maximum period for pre-trial detention had expired, the

applicants were released on 19 May 1979.

On 11 March 1980, the new investigation having reached its

conclusion, the four accused were committed for trial. The

investigating judge found that there was no case to answer in the

matter of the alleged ill-treatment as the material facts of the

offence had not been established (perché il fatto non sussiste). He

took the view that the injuries noted by the medical reports had been

caused by blows received by the accused in the struggles which occurred

during their transfer from the barracks. Indeed some of the police

officers who had been present at the time had similar injuries. The

state of shock observed on their arrival at the prison was attributed

to a lack of sleep and the lengthy interrogation. As regards the

description by the accused of the premises where the alleged

ill-treatment had been carried out and the fact that the accused had

named the two officers who were said to have perpetrated the violence,

the judge concluded that they could have seen the premises in question

on a previous occasion and that the two officers were well known in the

small town of Alcamo.

B. The trial proceedings

1. The first trial

19. The proceedings in the Trapani Assize Court began on

25 November 1980 and ended on 10 February 1981 with the acquittal, on

the basis of the benefit of the doubt, of the applicants and G.G.

G.M. was convicted and sentenced to life imprisonment.

20. The prosecuting authority and the accused appealed.

Mr Ferrantelli and Mr Santangelo, in particular, sought their

unqualified acquittal.

21. On 23 June 1982 the Palermo Assize Court of Appeal, basing its

decision essentially on the statements made to the police officers,

also found the applicants and G.G. guilty of the double murder.

22. On 22 December 1984 the Court of Cassation, to which G.M.,

G.G., Mr Ferrantelli and Mr Santangelo had appealed, on a date that has

not been specified, quashed the judgment of 23 June 1982 and remitted

the case of G.M. and G.G. to Palermo Assize Court of Appeal and that

of the applicants to the Juvenile Section of the Palermo Court of

Appeal.

The Court of Cassation noted that even if the pressure

described by the appellants had not been as serious as they claimed,

the contested confessions had been made without a judicial officer

being present. The Trapani judges had not intervened in the first

stage of the inquiry except to carry out acts of a purely formal

nature. For thirty-six hours the carabinieri had thus been completely

free to conduct their inquiries as they wished.

2. The second trial

23. On 7 March 1986 the Juvenile Section of the Palermo Court of

Appeal acquitted the applicants on the basis of the benefit of the

doubt.

The prosecuting authority and the applicants again appealed to

the Court of Cassation.

24. On 12 October 1987 the Court of Cassation quashed the decision

of the court below on the ground that it had regarded as established

the facts found in the judgment of 22 December 1984, whereas those

facts ought to have been the subject of a new investigation. The case

was remitted to the Juvenile Section of the Caltanisetta Court of

Appeal.

At the same time the Court of Cassation set aside the judgment

of the Palermo Assize Court of Appeal of 26 November 1985 convicting

G.G. and sentencing him to life imprisonment. The case was remitted

to the Caltanisetta Assize Court of Appeal for a decision as to whether

there were any extenuating circumstances.

25. On 31 May 1988 the Juvenile Section of the Caltanisetta Court

of Appeal quashed the judgment of the Trapani Assize Court of

10 February 1981 in so far as it concerned the applicants and

transmitted the file to the Palermo public prosecutor's office.

Allowing the objection raised by counsel for Mr Santangelo, the appeal

court applied the Constitutional Court's judgment of 15 July 1983

(no. 222) which had declared Article 9 of the Royal Legislative Decree

of 20 July 1934 (no. 1404) unconstitutional. That provision had

removed from the jurisdiction of the juvenile court (tribunale per i

minorenni) criminal proceedings brought against minors accused of

committing a criminal offence in concert with adults.

26. On 2 June 1988 the Assize Court of Appeal, presided over by

Judge S.P., accorded G.G. the benefit of general extenuating

circumstances. It took the view that the facts had been definitively

established by the Palermo Assize Court of Appeal, it referred to the

"co-perpetrators" of the double crime and to the "precise statement by

G.V. that G.G. together with Santangelo had been responsible for

physically carrying out the murders".

27. On 6 October 1989 the Palermo Juvenile Court, which was trying

the case at first instance, acquitted the applicants on the basis of

the benefit of the doubt. The applicants and the prosecuting authority

appealed.

28. By an order of 18 April 1990 the Juvenile Section of the

Palermo Court of Appeal raised a question as to the proper jurisdiction

and transferred the file to the Court of Cassation. It considered

that, in declaring the nullity of the judgment of the Trapani Assize

Court of 10 February 1981 - applying retrospectively the decision of

the Constitutional Court - the Juvenile Section of the Caltanisetta

Court of Appeal had breached Article 544 of the former Code of Criminal

Procedure, which was in force at the time and which prohibited raising

at a retrial on remittal grounds of nullity allegedly arising out of

the conduct of earlier stages in the proceedings or the investigation.

29. On 2 October 1990 the Court of Cassation remitted the case to

the Juvenile Section of the Caltanisetta Court of Appeal, having

confirmed the validity of the judgment of 10 February 1981.

3. The third trial

30. On 6 April 1991 that court, presided over by S.P., who had also

presided over the Caltanisetta Assize Court of Appeal in G.G.'s trial

(see paragraph 26 above), sentenced Mr Santangelo to twenty-two years

and five months' imprisonment and a fine of 450,000 Italian lire.

Mr Ferrantelli was sentenced to fourteen years and ten months. In its

judgment the court noted that lawyers had been continuously present

throughout the interrogations, which ruled out any possibility of

pressure of such a nature as to undermine the credibility of the

confessions. Admittedly one of the lawyers appointed by the

authorities to act for the applicants maintained that he had found

Mr Ferrantelli chained to a radiator, but according to the same person

he had been released before the beginning of the interrogation.

Referring to Article 192 para. 3 of the new Code of Criminal

Procedure, which provides that statements made by a person accused of

the same offence may be relied on only if they are corroborated by

other items of evidence which confirm their credibility, the appeal

court based its decision, inter alia, on the following considerations:

(a) the fact that the accused had all made statements

implicating each other;

(b) the fact that it would have taken five people to carry out

such an attack;

(c) the credence that could be attached to the statements of

G.V. concerning his responsibility, which was confirmed by other

physical evidence;

(d) a number of items of evidence establishing that those

statements were voluntary;

(e) the fact that the accused were friends;

(f) the fact that the applicants had helped G.V. to buy or

transport the oxygen bottles for the oxyacetylene torch used to cut

open the barracks door;

(g) the fact that on the evening of 12 February 1976 G.V.'s

father had been seen by the carabinieri, who were following him, in the

applicants' company, near Mr Santangelo's home, and on that occasion

the latter had appeared worried, while Mr Ferrantelli had sought to

reassure him;

(h) the discovery at Mr Santangelo's home of a box of matches

of a brand that was no longer manufactured, the matches being the same

type as those used to light the oxyacetylene torch and found in a

garage rented by G.V. The matches had been stolen by G.V. from a

tobacconist in January 1976;

(i) finally the lack of a convincing alibi for any of the

accused.

31. On 4 June 1991 the prosecuting authority and the applicants

appealed to the Court of Cassation complaining, inter alia, of the

inadequacy of the appeal court's statement of grounds.

32. In a judgment of 8 January 1992, deposited in the registry on

28 February, the Court of Cassation dismissed the applicants' appeal,

finding that the appeal court's assessment of G.V.'s statements

implicating them, their confessions and the corroborating evidence was

not open to criticism in terms of the statement of grounds.

33. An application of 18 January 1992 seeking a pardon from the

President of the Republic was rejected on a date that has not been

specified.

PROCEEDINGS BEFORE THE COMMISSION

34. Mr Ferrantelli and Mr Santangelo applied to the Commission on

2 February 1992. Relying on Article 6 paras. 1 and 3 (d) of the

Convention (art. 6-1, art. 6-3-d), they complained that: (1) their case

had not been heard within a reasonable time; (2) the proceedings and

their conviction had been based on confessions obtained by the

carabinieri under duress and the testimony of G.V., whom they had been

unable to examine or have examined before his death; (3) the President

of the Juvenile Section of the Caltanisetta Court of Appeal, which

convicted them in 1991, had already expressed his firm view that they

were guilty in 1988 in another trial concerning one of the other

perpetrators of the same offence; (4) the case had initially not been

tried by a court for juveniles.

35. On 30 August 1993 the Commission declared the application

(no. 19874/92) admissible as regards the first three complaints and

inadmissible for the rest. In its report of 2 March 1995 (Article 31)

(art. 31), it expressed the unanimous opinion that there had been a

violation of Article 6 (art. 6) on each of the three points. The full

text of the Commission's opinion is reproduced as an annex to this

judgment (1).

_______________

Note by the Registrar

1. For practical reasons this annex will appear only with the printed

version of the judgment (in Reports of Judgments and

Decisions 1996-III), but a copy of the Commission's report is

obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

36. The Government invited the Court to hold that there had been

no violation of Article 6 of the Convention (art. 6).

AS TO THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION (art. 6)

37. The applicants complained in the first place of the length of

the proceedings brought against them, secondly that they had not had

a fair trial and finally of the lack of impartiality of the Juvenile

Section of the Caltanisetta Court of Appeal. They relied on

Article 6 paras. 1 and 3 (d) of the Convention (art. 6-1, art. 6-3-d),

according to which:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing within a

reasonable time by an ... impartial tribunal ...

...

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;

..."

A. Reasonable time

38. The relevant period began on 13 February 1976, the date of the

applicants' arrest, and ended on 28 February 1992, when the Court of

Cassation's judgment was deposited in the registry. It lasted sixteen

years and two weeks.

39. The reasonableness of the length of proceedings is to be

determined with reference to the criteria laid down in the Court's

case-law and in the light of the circumstances of the case, which in

this instance call for an overall assessment.

40. The Government conceded that the total duration of the

proceedings might at first sight appear excessive, but justified it

firstly on the basis of the undeniably complex nature of the

investigation because of the statements and confessions made and then

retracted by the accused and secondly by citing the difficult

transitional period which had followed the judgment of the

Constitutional Court of 15 July 1983 recognising the jurisdiction of

the juvenile courts for offences committed by minors.

41. The applicants disputed the reasons given by the Government.

On the first point, their retractions could not be regarded as a

circumstance having contributed to making the investigation more

complex because every accused is entitled not to cooperate with the

investigators. For the rest, it was, in their opinion, unfortunate

that the Italian State had not managed to enact clear legislation

following the above-mentioned judgment of the Constitutional Court.

42. The Court shares the Commission's view that the case was

undoubtedly complex having regard to the nature of the charges and to

the problems in determining jurisdiction for offences committed by

minors acting in concert with adults. Taken separately, the different

phases of the proceedings were, in addition, conducted at a regular

pace, apart from the inexplicable period of stagnation of nearly two

years during the first investigation, from 13 February 1976 (arrest and

interrogation of the applicants) to 23 January 1978 (committal for

trial).

If the case is examined as a whole however, the only possible

conclusion is that the reasonable time requirement was not complied

with because, and this is the decisive consideration, the applicants

were not convicted with final effect until sixteen years after the

events, which had occurred when they were still minors.

43. There has accordingly been a violation of Article 6 para. 1

(art. 6-1) in this respect.

B. Fair trial

44. The applicants claimed to have been the victims of a breach of

Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) in that they had

been convicted on the basis of confessions obtained by the

investigators using physical and psychological pressure. They also

complained of the impossibility of examining or having examined before

his death, G.V., the prosecution witness.

1. The confessions allegedly obtained under duress

45. The Government affirmed that the applicants' trial had been a

fair one. They denied the use of any coercion by the investigators

during the applicants' interrogation; the fact that the proceedings

instituted against the police officers for ill-treatment had been

concluded by a finding that there was no case to answer confirmed this.

They further maintained that the judicial authorities had, after an

extremely thorough examination of all the information before them,

relied, in order to convict the applicants, not only on their

confessions but also on the statements of the three other accused and

on other evidence.

46. According to the Delegate of the Commission, there can be no

doubt that the applicants underwent ill-treatment at the hands of the

carabinieri. Citing the judgments of Tomasi v. France of

27 August 1992, Series A no. 241-A, and Ribitsch v. Austria of

4 December 1995, Series A no. 336, he called upon the Court to confirm

its case-law according to which, in substance, it falls to the

respondent State to adduce the proof that injuries sustained by a

person in police custody were not caused by the investigators. In this

case the Government had not provided any plausible explanation for the

applicants' injuries.

47. The Court notes at the outset - and this was conceded by the

Delegate of the Commission at the hearing on 21 February 1996 - that,

in contrast to the situation in the above-mentioned Tomasi and Ribitsch

cases, the present applicants have not sought to rely on Article 3 of

the Convention (art. 3), which prohibits torture and inhuman and

degrading treatment.

48. It recalls that the admissibility of evidence is primarily a

matter for regulation by national law and, as a rule, it is for the

national courts to assess the evidence before them. The Court's task

is to ascertain whether the proceedings considered as a whole,

including the way in which the evidence was taken, were fair (see the

following judgments: Barberà, Messegué and Jabardo v. Spain of

6 December 1988, Series A no. 146, p. 31, para. 68, Delta v. France of

19 December 1990, Series A no. 191-A, p. 15, para. 35, and Isgrò

v. Italy of 19 February 1991, Series A no. 194-A, p. 11, para. 31).

49. In the present case, on 18 May 1978, the Trapani Assize Court,

quashing the decision of 23 January 1978 committing the applicants for

trial, ordered additional investigative measures to determine the truth

of the allegations and the identity of the perpetrators of the alleged

ill-treatment (see paragraph 17 above). However, the investigating

judge held that there was no case to answer, finding that the injuries

reported could be attributed to the blows received by the applicants

in the course of struggles with the crowd during their transfer to

Trapani prison (see paragraph 18 above). Indeed some of the

carabinieri present at the time bore similar marks. In this respect

the present case may be distinguished from the Tomasi and Ribitsch

cases.

50. The Court observes that doubts may subsist as to the conduct

of the carabinieri during the applicants' interrogations; in their

submissions before the Commission the Government themselves referred

to a feeling of animosity on the part of the carabinieri. However, the

evidence adduced does not provide a sufficient basis for the Court to

depart from the findings of the judge responsible for the

investigation. It accordingly takes note of the conclusions of the

supplementary investigation.

2. The impossibility of examining or having examined G.V.

51. The Court recalls that the guarantees in paragraph 3 (d) of

Article 6 (art. 6-3-d) are specific aspects of the right to a fair

trial set forth in paragraph 1 (art. 6-1). This must therefore be

taken into account when examining this limb of the second complaint

under paragraph 1 (art. 6-1) (see, among other authorities, the

Barberà, Messegué and Jabardo judgment cited above, p. 31, para. 67).

In addition, all the evidence must normally be produced in the

presence of the accused at a public hearing with a view to adversarial

argument. However, the use of statements obtained at the pre-trial

stage is not in itself inconsistent with paragraphs 3 (d) and 1 of

Article 6 (art. 6-3-d, art. 6-1), provided that the rights of the

defence have been respected. As a rule, these rights require that the

defendant be given an adequate and proper opportunity to challenge and

question a witness against him, either when he was making his

statements or at a later stage of the proceedings (see, the Isgrò

judgment cited above, p. 12, para. 34).

52. In this instance, even though the judicial authorities did not,

as would have been preferable, organise a confrontation between all the

accused during the twenty months preceding G.V.'s tragic death, they

cannot be held responsible for the latter event. Furthermore, in its

judgment of 6 April 1991, the Juvenile Section of the Caltanisetta

Court of Appeal carried out a detailed analysis of the prosecution

witness's statements and found them to be corroborated by a series of

other items of evidence, such as the fact that all the accused had made

statements implicating each other, the fact that the applicants had

helped G.V. to buy and to transport the two gas bottles used in the

attack on the barracks and the lack of a convincing alibi for either

of the accused (see paragraph 30 above).

3. Conclusion

53. In the light of these considerations, the Court takes the view

that the applicants had a fair trial and that there has been no

violation of Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d).

C. Impartial tribunal

54. According to Mr Ferrantelli and Mr Santangelo, the Juvenile

Section of the Caltanisetta Court of Appeal which convicted them in

1991 could not be regarded as an impartial tribunal within the meaning

of paragraph 1 of Article 6 of the Convention (art. 6-1), as its

President - Judge S.P. - had already had to consider their case when

he had presided over the Caltanisetta Assize Court of Appeal in G.G.'s

trial. This was clearly demonstrated by the wording of the judgment

of 2 June 1988, sentencing G.G. to a long term of imprisonment.

55. The Government maintained in substance that the two trials had

not concerned the same persons and that, in any event, Judge S.P. was

the only one of the five Court of Appeal judges to have already dealt -

"in a very marginal way" - with the applicants' case.

56. The Court recalls that the existence of impartiality for the

purposes of Article 6 para. 1 (art. 6-1) must be determined according

to a subjective test, that is on the basis of the personal conviction

and behaviour of a particular judge in a given case, and also according

to an objective test, that is ascertaining whether the judge offered

guarantees sufficient to exclude any legitimate doubt in this respect

(see, among other authorities, the Hauschildt v. Denmark judgment of

24 May 1989, Series A no. 154, p. 21, para. 46, and the Thomann

v. Switzerland judgment of 10 June 1996, Reports of Judgments and

Decisions 1996-III, p. 815, para. 30).

57. As to the first test, the applicants did not question the

personal impartiality of the judge concerned.

58. Under the second, it must be determined whether, quite apart

from the judge's conduct, there are ascertainable facts which may raise

doubts as to his impartiality. In this respect even appearances may

be of a certain importance. What is at stake is the confidence which

the courts in a democratic society must inspire in the public. This

implies that in deciding whether in a given case there is a legitimate

reason to fear that a particular judge lacks impartiality, the

standpoint of the accused is important but not decisive. What is

decisive is whether this fear can be held objectively justified (see

the Hauschildt judgment, cited above, p. 21, para. 48, and, mutatis

mutandis, the Fey v. Austria judgment of 24 February 1993, Series A

no. 255-A, p. 12, para. 30).

59. Like the Commission, the Court notes that in the instant case

the fear of a lack of impartiality derived from a double circumstance.

In the first place, the judgment of 2 June 1988 of the Caltanisetta

Assize Court of Appeal, presided over by Judge S.P. (see paragraph 26

above) contained numerous references to the applicants and their

respective roles in the attack on the barracks. In particular, mention

was made of the "co-perpetrators" of the double crime and of "the

precise statement by G.V. that G.G. together with Santangelo had been

responsible for physically carrying out the murders", and it was

affirmed that Mr Ferrantelli had helped to search the barracks and to

transport material belonging to the carabinieri. Secondly, the

judgment of the Juvenile Section of the Caltanisetta Court of Appeal

of 6 April 1991 (see paragraph 30 above) convicting the applicants

cited numerous extracts from the decision of the Assize Court of Appeal

concerning G.G. In the Juvenile Section it was once again Judge S.P.

who presided and indeed he was the reporting judge.

60. These circumstances are sufficient to hold the applicants'

fears as to the lack of impartiality of the Juvenile Section of the

Caltanisetta Court of Appeal to be objectively justified.

There has accordingly been a breach of Article 6 para. 1

(art. 6-1) on this point.

II. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)

61. Under Article 50 of the Convention (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

62. On 9 February 1996 counsel for Mr Ferrantelli and Mr Santangelo

lodged with the registry his clients' claims for the damage sustained.

63. The Government contended that the claims were time-barred.

64. According to the Delegate of the Commission, the applicants had

not really provided an explanation for their delay in submitting the

document in question.

65. The Court notes that under Rule 52 para. 1 of Rules of Court

B, any claims that the applicant "may wish to make under Article 50 of

the Convention (art. 50) shall ... be set out in his memorial or, if

he does not submit a memorial, in a special document filed at least one

month before the date fixed ... for the hearing". The applicants'

lawyer, who did not submit a memorial, did not communicate the claims

for just satisfaction until 9 February 1996 (see paragraph 4 above).

The applicants were granted sufficient time for the submission

of their claims, which must therefore be dismissed as out of time.

B. Costs and Expenses

66. The applicants did not seek the reimbursement of their costs

and expenses incurred in the national courts. As regards those

relating to the proceedings before the Court, Mr Ferrantelli and

Mr Santangelo received legal aid totalling 9,724 French francs; they

did not make a claim for an additional amount.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a violation of

Article 6 para. 1 of the Convention (art. 6-1) as regards the

length of the proceedings;

2. Holds unanimously that there has been no violation of

Article 6 paras. 1 and 3 (d) (art. 6-1, art. 6-3-d) as regards

the right to a fair trial;

3. Holds by eight votes to one that there has been a violation of

Article 6 para. 1 (art. 6-1) on account of the lack of

impartiality of the Juvenile Section of the Caltanisetta Court

of Appeal;

4. Dismisses unanimously the applicants' claims for just

satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 7 August 1996.

Signed: Rolv RYSSDAL

President

Signed: Herbert PETZOLD

Registrar

In accordance with Article 51 para. 2 of the Convention

(art. 51-2) and Rule 55 para. 2 of Rules of Court B, the partly

dissenting opinion of Mr De Meyer is annexed to this judgment.

Initialled: R. R.

Initialled: H.P.

PARTLY DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

I much regret that the Court, worshipping once again at the

altar of "appearances" (1) (which it had recently begun to abandon in

its judgments (2)), has found a violation of the principle of

impartiality in the instant case.

_______________

1. Paragraph 58 of this judgment.

2. Bulut v. Austria judgment of 22 February 1996, Report of Judgments

and Decisions 1996-II, Pullar v. the United Kingdom judgment of

10 June 1996 and Thomann v. Switzerland judgment of 10 June 1996,

Reports 1996-III.

_______________

In this respect the present case was very similar to the

Thomann case.

Judge S.P., who had to retry the case as President of the

Juvenile Section of the Caltanisetta Court of Appeal when he had tried

it once already as President of the Caltanisetta Assize Court of Appeal

in respect of other defendants and without the applicants being

present, was not, in respect of the latter, "in [any] way bound by

[his] first decision": as regards the applicants, he undertook "a fresh

consideration of the whole case; all the issues raised by the case

remain[ed] open and this time [were] examined in adversarial

proceedings with the benefit of the more comprehensive information"

that could be obtained with the applicants present. As the Court held

in the Thomann judgment, "[s]uch a situation is not sufficient to cast

doubt on the impartiality of the [judge] in question" (3).

_______________

3. Thomann judgment previously cited, pp. 815-16, para. 35. See also

the Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13,

p. 40, para. 97, and the Diennet v. France judgment of

26 September 1995, Series A no. 325-A, pp. 16 and 17, paras. 37 and 38.

_______________

There could, however, have been a problem as regards the

fairness of the trial if the Juvenile Section had not truly and

thoroughly undertaken a fresh consideration of the case and had simply

regarded as established the Assize Court of Appeal's findings in

respect of the applicants. It was not shown that this was what

happened. The judgment of 6 April 1991, for which lengthy, detailed

reasons were given (4), demonstrates that, on the contrary, that court

carefully and conscientiously inquired into what role the applicants

could have played in the murder of the two police officers. The fact

that that judgment refers more than once to the one of 2 June 1988

makes no difference.

_______________

4. Paragraphs 30 and 52 of the present judgment.



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