45
67.
When determining the scope of the guarantees included in Article 8(2) of the
Convention, the Court must consider the role of the “indictment” in the criminal due
process vis-à-vis the right to a defense. The material description of the conduct
attributable contains the factual data included in the indictment, which is the
indispensable reference for the exercise of the defense of the accused and the
consequent consideration of the judge in the verdict. Therefore, the defendant has
the right to know, through a clear, detailed, and precise description, the facts he is
being charged with. Their legal classification may be varied during the process by
the prosecutor or the judge, without this violating the right to a defense, when the
facts themselves are maintained invariable and the procedural guarantees included
in the law for the change to the new classification are observed. The so-called
“principle of coherence or correlation between the indictment and the conviction”
implies that the judgment may fall only upon the facts or circumstances included in
the indictment.
68.
Since the principle of coherence or correlation is an indispensable corollary of
the right to a defense, the Court considers that it constitutes a fundamental
guarantee of the due process in criminal matters, which the States must observe in
compliance of the obligations included in subparagraphs b) and c) of Article 8(2) of
the Convention.
69.
In the case Pélissier and Sassi v. France, the European Court of Human Rights
determined that the applicants were not given the opportunity to prepare their
defense with regard to the new charge they were accused of, since it was only
through the judgment of the appeals court that they found out of the change in the
classification of the facts. Specifically, it considered that the change accepted in the
judgment altered the terms of the initial indictment. In this regard it made the
following considerations:
[…]
The Court observes that the provisions of paragraph 3 (a) of Article 6 point to
the need for special attention to be paid to the notification of the “accusation” to the
defendant. Particulars of the offence play a crucial role in the criminal process, in that it
is from the moment of their service that the suspect is formally put on notice of the
factual and legal basis of the charges against him (see the Kamasinski v. Austria
judgment of 19 December 1989, Series A no. 168, pp. 36-37, § 79). Article 6 § 3 (a) of
the Convention affords the defendant the right to be informed not only of the cause of
the accusation, that is to say the acts he is alleged to have committed and on which the
accusation is based, but also the legal characterisation given to those acts. That
information should, as the Commission rightly stated, be detailed.
[…]
The scope of the above provision must in particular be assessed in the light of
the more general right to a fair hearing guaranteed by Article 6 § 1 of the Convention
(see, mutatis mutandis, the following judgments: Deweer v. Belgium of 27 February
1980, Series A no. 35, pp. 30-31, § 56; Artico v. Italy of 13 May 1980, Series A no. 37,
p. 15, § 32; Goddi v. Italy of 9 April 1984, Series A no. 76, p. 11, § 28; and Colozza v.
Italy of 12 February 1985, Series A no. 89, p. 14, § 26). The Court considers that in
criminal matters the provision of full, detailed information concerning the charges
against a defendant, and consequently the legal characterisation that the court might
adopt in the matter, is an essential prerequisite for ensuring that the proceedings are
fair.
[…]
Lastly, as regards the complaint under Article 6 § 3 (b) of the Convention, the
Court considers that sub-paragraphs (a) and (b) of Article 6 § 3 are connected and that
the right to be informed of the nature and the cause of the accusation must be
considered in the light of the accused’s right to prepare his defence.87
87
Cfr. Pelissier and Sassi v. France 25444/94, [1999] ECHR, paras. 51-54.
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