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not be used to condemn the statements pre-trial of the witness which had become unavailable then

Cassation, Judgement n.9665/2011
The Supreme Court has ruled that statements made during the pre-trial by a witness who makes suddenly disappeared can not be used for the purposes of sentencing. For this reason, the Court annulled by court, the Court of Appeal which had been condemned six small dealers, cd. "Pusher" on the basis of statements of a witness who was then absconds. Taking the view that the grounds for appeal, brought by the defendants, stated that "the unexpected and unforeseeable unavailability of those whose statements have already been acquired in the normal course of pre-trial and which can not be said to be proof of intention to evade the examination hearing "is included in the cases of confirmed objective impossibility, which, pursuant to Art. 111, fifth paragraph of the Constitution, excluded to the rule of evidence in contradiction of the parties, with the result that, in this case, does not recognize the proposed breach of Article. 6, third paragraph, Lett. d) ECHR (as interpreted by the rulings of the Strasbourg Court), because, as is clear from the judgments of the Constitutional Court No 348 and 349 of 2007, the provisions of that Convention, although direct binding, the interpretation given to it by the Strasbourg Court, the national court, however, can not result in the non-application of internal rules, contrasting with them hypothetically, if and as these latter are implementing the principles stated in the Constitution, which even the conventional rules to be considered subordinate condition met the applicability of Article. 111, fifth paragraph of the Constitution (Cass. pen. Sect. 5, 16269/2010 Rv. 247 258). "The Court added that in terms of reading the hearing, under Article. 512 cpp" the impossibility of repetition of the act, in case of unavailability of witnesses, and used only if such a situation, not only is "unpredictable" (...) but even "objective" in the sense that there is no evidence to infer that the subject has voluntarily removed from consideration. In the latter event does not constitute the assumption of impossibility of evidence heard in the art to which it relates. 111, paragraph 5 of the Constitution. "It has been found as in this case "the desire to avoid examination was reasonably inferred from the behavior of the witness (...) which is regularly cited for three consecutive times to appear at the hearing, did not appear by then lost his trail ( Cass. pen. sect. 6, 8384/2003 Rv. 223 731).