Resolution CM/ ResDH (2011)66 [1]

Execution of the judgment of the European Court of Human Rights

Scoppola against Italy

(Application No. 10249/03, judgment of 17 September 2009, Grand Chamber)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern a failure in the obligation to allow the applicant to benefit from the application of a more lenient criminal law, which entered in force after the time of commission of the offence for which he was charged (violation of Article 7), as well as the unfairness of the criminal proceedings against the applicant due to the fact that he had been deprived of the advantages attached to the waiver of certain procedural safeguards (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)66

Information on the measures taken to comply with the judgment in the case of

Scoppola against Italy

Introductory case summary

The case concerns the failure by the authorities in their obligation to allow the applicant to benefit from the application of a more lenient criminal law which entered into force after the commission of the offence of which he was charged (violation of Article 7). It also concerns the unfairness of the criminal proceedings against the applicant in that, following the application of provisions which came in force after the beginning of the trial, he had been deprived of a possibility of reduction of the penalty provided by law, which was at the basis of his decision to be judged under a summary procedure which offers fewer procedural guarantees (violation of Article 6§1).

Arrested in 1999 for the murder of his wife and attempted murder of his son, the applicant asked to be tried under the summary procedure pursuant to article 442§2 of the Code of Criminal Procedure, as modified in January 2000 (the “CPP”). This article provided that if the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence should be thirty years. The first-instance judge sentenced the applicant to thirty years ’ imprisonment, thus applying the reduction of sentence provided by article 442§2 of the CPP. However, this decision was set aside by the Rome Court of Appeal and by the Court of Cassation.

Those courts took the view that it was necessary to apply Legislative Decree No. 341 of 2000, which entered into force on the date of the first-instance decision, and specified that, where there were accumulated offences, if an offender was liable – as was the applicant – to life imprisonment with daytime isolation, that penalty was to be replaced not by thirty years ’ imprisonment but by life imprisonment without isolation. According to those courts, it was a procedural rule applicable to all pending proceedings.

The European Court took the view that it was necessary to depart from the case-law established by the former European Commission on Human rights in X against Germany and affirm that Article 7§1 of the Convention guarantees not only the principle of non-retroactivity of more stringent criminal laws but also, and implicitly, the principle of retroactivity of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before a final judgment is rendered, the courts must apply the law whose provisions are most favourable to the defendant.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 EUR

10 000 EUR

20 000 EUR

Paid on 03/02/2010

b) Individual measures

Having regard to the particular circumstances of the case and the urgent need to put an end to the breach of Articles 6 and 7, the European Court expressly stated that Italy is responsible for ensuring that the applicant ’ s life sentence is replaced by a penalty consistent with the principles set out in the judgment, which is a sentence not exceeding thirty years ’ imprisonment (§154).

Following the judgment of the European Court, the Principal State Counsel ’ s Office at the Court of Cassation forwarded to the court in charge of the execution of Mr. Scoppola ’ s life sentence (the Court of Appeal of Rome) a note whereby the Attorney General of the Court of Appeal of Rome is expressly requested to apply - through an incidente d ’ esecuzione – to have the applicant ’ s life sentence replaced by a sentence not exceeding thirty years ’ imprisonment. On 11/02/2010 the Court of Cassation granted the request of the Attorney General: the sentence of life imprisonment was therefore replaced with a sentence of thirty year ’ s imprisonment.

Therefore, no other individual measure seems necessary.

II. General measures

In the light of the direct effect granted by Italian courts to the judgments of the European Court and having regard to the possibilities offered by the procedure of incidente d ’ esecuzione to those in the same situation as the applicant in this case (see individual measures above), the Italian authorities consider that the publication and dissemination of the judgment of the European Court to the competent courts are sufficient measures to prevent similar violations.

To raise awareness and prevent similar violations, the judgment has been published on the Internet site of the Court of Cassation, in the database on the case-law of the European Court of Human Rights ( http://www.italgiure. g iustizia.it ), and on the government ’ s website ( < http://www.gover n o.it/presidenza/contenzioso > ), with a translation into Italian. These websites are widely used by all those who practice law in Italy : civil servants, lawyers, prosecutors and judges alike. The judgment has also been transmitted to all competent Authorities.

III. Conclusions of the respondent state

The government considers that the individual measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in this case, that the general measures will prevent similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 8 June 2011 at the 1115th Meeting of the Ministers’ Deputies