Information Note on the Court’s case-law 55

July 2003

Grava v. Italy - 43522/98

Judgment 10.7.2003 [Section I]

Article 5

Article 5-1

Lawful arrest or detention

Detention exceeding the period applicable under domestic law: violation

Article 7

Article 7-1

Nulla poena sine lege

Serving of prison sentence longer than that applicable as a result of sentence imposed and the remission to which the applicant was entitled : no violation

Facts : In October 1994, the Trieste Court of Appeal sentenced the applicant to four years’ imprisonment for fraudulent bankruptcy. This decision became final in October 1995. The applicant applied for two years’ remission of his sentence pur suant to Presidential Decree no. 394 of 1990. His application was refused, notably because he had been granted remissions of sentences imposed for other criminal offences. However, by judgment of May 1998, the Court of Cassation held that only the sentence which had become final in October 1995 could be enforced and that, accordingly, the fact that he had been convicted of other offences did not prevent the grant of the remission of sentence applied for; the case was sent back to the Court of Appeal. In Aug ust 1998, the applicant applied for provisional release. He claimed that, taking into account the principles referred to by the Court of Cassation and the possibility of obtaining two years’ remission, the total period during which he had been deprived of his freedom exceeded the penalty to be served. The applicant was released on 14 August 1998, when he had served a total sentence of two years, two months and four days. The time remaining to be served was therefore one year, nine months and twenty six days , or less than the maximum remission to which he was entitled under the Presidential Decree. In December 1998, the Court of Appeal, to which the case had been sent back, declared that the remainder of the applicant’s sentence was remitted in full.

Law : Article 5 § 1 (a) – The applicant was lawfully detained after being convicted by a competent court within the meaning of that article. However, he served a prison sentence of two months and four days longer than that resulting from the sentence pronounce d against him and the remission to which he was entitled under the applicable Presidential Decree. According to that decree, the authorities are required to remit penalties to the extent determined by law. The final decision on the applicant’s application for remission of his sentence was taken at too late a stage, i.e. after he had been released and when he had already served a longer sentence than the one which would have resulted had he been granted remission. Although the applicant was responsible for d elays in the proceedings, those delays, which occurred following his release, had no influence on the total period during which he was deprived of his liberty. In short, the additional period of imprisonment which the applicant was required to serve cannot be analysed as lawful detention within the meaning of the Convention.

Conclusion : violation (unanimous).

Article 13 – The Court concludes unanimously that there is no need to examine this complaint separately.

Article 7 §1 – The sentence of four years’ im prisonment imposed on the applicant by the Court of Appeal did not exceed the statutory maximum sentence applicable to the offence with which the applicant was charged at the time when it was committed. Accordingly, there is no problem from the aspect of A rticle 7. Furthermore, the question of remission provided for by the Presidential Decree of 1990 relates to the enforcement of the penalty and not to the penalty itself. Accordingly, the “penalty” imposed was not heavier than that provided for by law.

Con clusion : no violation (unanimous).

Article 41 – The Court awards the applicant €8,000 for non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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