Resolution CM/ResDH(2009)81 [1]

Execution of the judgment of the European Court of Human Rights

Fodale against Italy

(Application No. 70148/01, judgment of 1 June 2006, final on 23 October 2006)

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 violation of the Convention found by the Court in this case concerns the u nfairness of proceedings for a review of the lawfulness of the applicant ' s detention pending trial (violation of Article 5§4) (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, within the time-limit set, 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 by the Court in its 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

- of 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(2009)81

Information about the measures to comply with the judgment in the case of

Fodale against Italy

Introductory case summary

The case concerns the unfairness of proceedings before the Court of Cassation for a review of the applicant ' s detention pending trial (violation of Article 5§4).

The European Court found that neither the adversarial principle nor that of equality of arms had been respected during the proceedings in question, in that neither the applicant nor his counsel had been informed of the hearing held in February 2000 by the Court of Cassation, at which the representative of the prosecution was nonetheless present.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

-

5 000 euros

5 000 euros

Paid on 08/01/2007

b) Individual measures

The applicant ' s detention pending trial is over. In addition, since the applicant was acquitted in the main criminal proceedings, he was entitled to seek compensation for “unjust” detention under Article 314 of the Code of Criminal Proceedings. The European Court considered that the finding of the violation constituted in itself sufficient just satisfaction of any non-pecuniary damage sustained.

II. General measures

The violation of the Convention arose from an erroneous application of the rules of procedure: Article 127 of the Code of Criminal Procedure provides the obligation to communicate the date of the hearing to both parties without distinction.

In order to prevent other similar violations, the Ministry of Justice translated the judgment of the European Court into Italian and sent it out to the competent courts with a note recalling the principles of the judgment, and asking for its dissemination to all judges. The judgment has also been published in the database of the Court of Cassation on the case-law of the European Court ( www.italgiure.giustizia.it ). This website is widely used by all those who practice law in Italy : civil servants, lawyers, prosecutors and judges alike.

III. Conclusions of the respondent state

The government considers that no specific individual measure is needed in this case, that the general measures adopted will prevent other, 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 30 September 2009 at the 1065 th meeting of the Ministers’ Deputies