APPLICATION/REQUÊTE N" 12013/86 Gerlando ALBERTI v/ITALY Gerlando ALBERTI c/ITALI E DECISION of 10 Match 1989 on the admissibility of the application DÉCISION du 10 mars 1989 sur la recevabilité de la requêt e Article 6, paragraph 1 of the Convention : 7his provision dues uot govern the admissibilité aml probative value of evidence as such, but it does nui exelade the use of indirect evidence vhich is su((cient in the oves of the lau• ta establish the guilt oJthe accused and is dehated in adversarial proceedings hefore the ludge . Article 19 of tire Convention: The Commission is net competent tu examine alleged errors of Tact or las- conmtitted by national courts , exceot shere it considers thai .suclr errors might have involved a possible violation of the rights and freedonrs set forth in the Convention . Article 6. paragraphe 1, de la Conven tion : Cette disposition ne régit pas, comme ,elles . l'ut/missibilité et la force probante des moyens de preuve niais elle n'exclut pas le recours d des moyens indirects de preuve suffisamment forts, au.r yeux de la loi, pour établir la culpabilité de l'intéressé et discutés contradictoirement devant le juge . Article 19 de la Convention : La Commission ne peut examiner de prétendues erreurs de fait ou de droit commises par le juge national que dans la mesure où ces erreurs pourraient impliquer une violation des droits et libertés garantis par la Convention . (TRANSLATION) THE FACTS The applicant, Gerlando Alberti, is an Italian national born in 1927 in Palermo . He is currently in détention in Volterra . Belote the Commission, his is represented by Mr . Dean, a lawyer practising in Pérugin. The facts of the case, as submitted by the applicant, may be summarised as fol lows . On 25 August 1980, the applicant was arrested with four other people - three of whom were French nationals - as part of an investigation concerning international drug trafficking, conducted by the Palermo Public Prosecutor's Office. 106 The police operation which led to his arrest also Ied to the discovery of Iwo drug-refining laboratories and was followed hy further arrests, in particular in Paris, and in Marseille . This police operation had been prepared thanks tu the collaboration of Mr . J., owner and manager of a hotel in which the three French nationals had stayed for around three weeks . Mr. J. had allowed two police officers to pose as members of bis staff . In this way the police had been able to monitor the movements of the threc French nationals and choose the best time to intervene . On 28 August 1980, two men, who remain unidentified, entered Mr . J .'s hotel with their faces uncovered, and shot and killed him white he was on the telephone at reception, (lien tled in a car which was later found burin out. The results of the investigation conducted by the police fullowing ibis morder were set out in a report dated 2 September 1980. The report showed Chat ail the possible motives had been taken inio consideration and carelully examined : the members of Mr . J .'s fantily and his collaborators had been questioned to ascertain whether they had professional motives or motives of enmity towards the victim ; Mr. 1.'s behaviour during the period preceding fils death had aise, been taken into account . According Io the investigators, the crime could be explained only on account of the victim's collaboration in the operation that had Ied to the uncovering of the drugs ring of which the applicant appeared Io be the leader . Tarifer to this report, the Palermo prosecuting authorities opened an investigation in respect of a person or persons unknown . Then, on 22 September 1980, the applicant and Mr . C. - who was regarded as his second in command - were charged with bcing the instigators of the murder . During the investigation, several people who had taken part in the police opcration or in the subsequent inquiries, as well as the witnesses to the murder, werc hcard. The applicant, Mr . C ., the three French nationals and other accomplices who had been arrestcd were questioned . An inspection of Palermo prison revealed that prisoners in solitary confinement could contact not only other prisoners but also persons front outside carrying out work in the prison . Documents relating Io another investigation in progress in respect of the applicant, who was bcing prosecuted for infringements of drug legislation, and in particular a report dated 28 August 1980 by the criminal investigation police ("criminalpol") and the public prosecutor's submissions made in the contcxt of thosc proceedinga were included in the case-file . Ai the end of the investigation, the public prosecutor asked the investigating judge to discontinue the proceedinga since in his view there was not sufficien ; 107 evidence to establish that the order to kilt Mr . J . had been given by the applicant or by Mr . C., given that accomplices who were not in prison could also have decided tu take their revenge . However, on 23 September 1982, the investigating judge ordered the committal for trial before the Palermo Criminal Court . He considered that the charges against the accused were well supported : in particular, the monder had been committed only shortly after the conclusion of the police operation in which Mr . J . had collaborated and the members of the criminal organisation sti11 ai large could therefore not have known of the part played by Mr . J . nor could they have acted without instructions from the applicant or from Mr . C . The trial before the Palermo Criminal Court lasted from 27 January to 4 March 1983. The applicant declined tn take part . On 27 January 1983, having examined Mr . C . and having rcad out the siatements made by the applicant during the investigation, the court heard the following witnesses : a captain of the carabinieri, the chief warder of Palermo prison and Iwo other warders, a police superintendent and a police constable, Mr . J.'s wife, the fiancé of Mr. J.'s daughter, two members of the hotel staff, and the persan at the other end of the telephone when Mr . J. was murdered . On 28 and 31 January 1983, various documents were read out, including police reports and a report drawn up by the Public Prosecutor's Office on the shortcomings of Palermo prison . On 1 March 1983, the Criminal Court heard four other witnesses : a captant of the fiscal police ("Guardia di Finanza" ), an assistant to the Palermo chief police officer, the Palermo prison governor and a third warder . Hearings on 2, 3 and 4 March 1983 were taken up by the public prosecutor's address and the address by the lawyers for the accused . After the fast hearing, on 4 March 1983, the Palermo Criminal Court delivered its judgment senlencing the applicant to 24 years' imprisonment. In ifs decision, it found that the only plausible motive for the murder of Mr. J. was revenge and that nobody, other than the applicant and his accomplices, had reason to seek such revenge . Mureover, the manner in which the murder had been carried out - which bore the Mafia hallmark - and the fact that il had taken place very shortly after the applicant's arrest, led the Criminal Cou rt to conclude that the order In kill Mr . J. had been given by the applicant . The Tact was that the applicant was the only person among those arrested to have had the authority to give such an order, given his undoubted position as chief of the Sicilian branch of the criminal organisation broken up by the police operation . 108 With regard to the members of this criminal organisation who had not been arrested, the Criminal Court noter] chat they had undoubtedly not been directly aware of the role that Mr . J . . by collaborating with the police, had played in the arrest of their "chief" . This role could only have been known by the three French nationals rince the police officers who had worked ai the hoiel, and whom the three French nationals knew well, had also participated in their arrest . However, the three French nationals could have communicated This tact only to the applicant and Mr . C. . and only theee two knew about the channels for conveying messages from the prison to the outside to give the order to kill Mr . J. On the hasis of all this circumstantial evidence, which il regarded as consistent with the only plausible motive for the murder, the Criminal Court decided Chat the applicant was guilty . However, il acquitted Mr . C., considering that there was no proof that the applicant had consulted him before taking his decision . The applicant appealed, asserting chat he had been convicted without any evidence. The public prosecutor also appealed against the decision, claiming that an arlequine statement of reasons had not been given for Mr . C.'s acquitta] . The proceedings before the Palermo Criminal Court of Appeal look place, over five hearings, from 9 to 13 April 1984 . The court examined Mr . C . and had reports read out concerning two examinations of the applicant, who had declined Io appear . Il ordered that a copy of the judgment of 19 April 1983 - by which the Palernio Court had sentenced the applicant tu 18 years' imprisonment for heading a criminal organisation involved in drug trafficking - be placed in the file along with a copy of the operative provision of the judgment confirming this sentence on appeal . Alter hearing the public prosecutor's address and the arguments of the accuseds' lawyers on 13 April 1984, the Palermo Criminal Court of Appeal, adopting the reasoning of the Criminal Court, rejected the public prosecutor's appeal and that of the applicant and confirmed the sentence imposed on the applicant . On 13 March 1985, the Court of Cassation rejected the applicant s appeal . In its judgment - the test of which was filed with the registry on 25 June 1985 - il orteil first of all that the trial judges' finding as to the Mafia-style character of the murder had not been based on a general assessment ("apprezzamento di maniera") but on the specific methods used to commit the murder, which were similar to those used for most Mafia murders in Sicily . According to the Court of Cassation, following a rigorous examination of the results of the investigation, the trial judges had succeeded in establishing the sole and exclusive motive for the crime. They had taken account not only of the chronological succession of events . but also of undoubted circumstances : namely the presence ai the hotel, ai the sanie lime as the French nationals, of policemen acting as hotel staff, with the agreement of the hotel manager ; the considerable damage, economic and otherwise. caused hy the police operation - facilitated by the botel manager' s 109 collaboration - to the criminal organisation . which had in the process "lost" Iwo laboratories and had many of its members arrested ; the considerable loss of prestige by the Sicilian members of the organisation who had been unable to provide adequate security for the criminal activity ; the confirmed absence of other motives, established on the basis of statements made by the victim's relatives and the results of the police investigation . In addition, the prosecution evidence was all based on facts established during the procecdings . Thus, the position occupied by the applicant in the criminal organisation emerged from documents - duly acquired during the trial and placed in the file -- relating to the proceedings concerning the drug-trafficking case . Those proceedings had ended on 11 February 1985 in ajudgment by the Court of Cassation confirming the applicant's conviction . The tact that after a three-week stay ai the hotel, the French nationals found themselves - ai the cime of their arrest - face to face with the policeman who had acted as hotel receptionist, justified the conclusion that the policeman had been recognised by them . It was also established that the French nationals had had the possibility of contacting the applicant alter their arrest and that the solitary confinement measure had not prevented one of them from contacting other prisoners and thereby having a lawyer recommended . In addition , the two public prosecutors responsible for the investigation had personally observed that il was not possible to ensure the solitary confinement of prisoners at Palermo prison . The trial judges had logically concluded Chat, first of all, the applicant had been informel by the French nationals of what they had seen and secondly, that he had had access to "channels" allowing him w convey messages Io the outside . Furthermore, the extreme speed with which revenge was taken - less than three days alter the arrest of the applicant and his four accomplices - led thejudges to rule out the possibility that other members of the criminal organisation coutil have known of Mr. 1 .'s role, which therefore allowed them to confine their search for the instigators of the murder to the five arrested persons . The three French nationals had absolutely no influence river local criminals and Mr . C . was a mcre executor ("grcgario"1 . The applicant was therefore the only one of the five in a position Io lake the decision to kill Mr . J . and togive orders to this effect . The Court of Cassation concluded that the Appeal Court's decision could not be challenged and therefore confirmed the applicant's conviction . 110 COMPLAIN'l'S Before the Commission , the applicant complains Chat he was convicted only on the basic of circunistantial evidence and presumptions . He asserts chat il was impossible fur him te clear himself of charges which were out based on any concrete evidence . He alleges a violation of Article 6 of the Convention . THE LAW The applicant claims that his conviction was based only on circumstantial evidence and presumptions and alleges a violation of Article 6 of the Convention . The Commission will examine this complaint under Article 6 para . 1 of the Convention, which guarantees the right to a "fair trial" . The Commission recalls first of all that, in accordante with Article 19 of the Convention, ils only tank is to ensure the observance of the obligations undertaken by the parties to the Convention . In particular, il is not competent to deal with an application alleging that errons of law or fact have been committed by domestic courts, except where il considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention . The Commission refers, on this point, to ils established case-law (see, for example, No . 7987/77, Dec . 13 .12 .79 . D .R . 18 pp. 31 and 61) . The Commission also stresses that the question of the admissibility of evidence and of ils probalive value falls essentially within the ambit of domestic law (sec, for example, No. 7450/76, Dec . 28 .2.77, D.R. 9 p . 108 : No. 8876/80, Dec . 16 .10 .80, D.R . 23 p . 233) . Il is thcrcforc not required to decide on the question of whether the domestic courts correctly assessed the cvidcnce . Il recalls further that the use of indirect evidence is not ruled out in itself by Article 6 para . 1 of the Convention (sec, No . 8945/80, Dec . 13 .12 .83, D .R . 39 p. 43), but that the judges, at the time of taking their deeision, may convict only on the basis of direct or indirect evidence that suffices in the eyes of the lave to establish the guilt of the accused (sec, Barberà, Messegué and Jabardo v . Spain, Comm . Report 16 .10.86, para . 104, Eur . Court H.R ., Series A no . 146, p . 49). In addition, the evidence must in principle be produced in the presence of the accused ai a public hearing with a view to adversarial argument (sec, Eur . Court H .R . . Barbera, Messegué and Jabardo judgment of 6 December 1988, Series A no . 146, p . 33, para. 78) . In this case, the Commission notes that in the absence of direct evidence, the trial judges esrablished that the order to execute Mr . J . had been given hy the applicant . To reach this conclusion, they relied on a whole body of indirect evidence, such as the existence of a single plausible motive, namely revenge ; the absence of people with an interest in killing Mr. J . spart from memhers of the criminal organisation Ill he had helped Io uncover ; the tact that ri was impossible for the applicant's accomplices who were not in prison to have known chat Mr. J. had collaborated with the police ; and the tact that the applicant was the only person, among Chose arrested, to have had the necessary authority to order the niurder and the possibility of conveying his orders outside the prison . The Commission aise notes that the applicant dues not deny Chat the charges against him were presented and debaied adversarially before both the trial judges and the Court of Cassation . There is therefore nothing in the file Chat allows the Commission to conclude chat the applicant did net enjoy a fair tria[ . fi therefore considers that the application is manilèstly ill-founded and must be rejected under Article 27 para . 2 of the Convention . For these remous, the Commission DECLARES THE APPLICATION INADMISSIBLE . 112