Resolution CM/ ResDH (2009)87 [1]

Execution of the judgment of the European Court of Human Rights

Drassich against Italy

(Application No. 25575/04, judgment of 11 December 2007, final on 11 March 2008)

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 in this case, transmitted by the Court once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the infringement of the right to be informed in a detailed manner of the nature and cause of the accusation, as well as of the right to be given adequate time and facilities for the preparation of defence due to the reclassification of the acts by the Court of Cassation without informing the applicant (violation of Articles 6 § 3 (a) and (b), together with Article 6 § 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;

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)87

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

Drassich against Italy

Introductory case summary

This case concerns the violation of the applicant ’ s right to be informed in detail of the nature and cause of the accusation against him and of his right to have adequate time and facilities for the preparation of his defence in criminal proceedings (violation of Article 6§3 (a) and (b), together with Article 6§1).

By a judgment of 12/06/2002, the Venice Court of Appeal confirmed the applicant ’ s conviction for forgery and corruption and fixed a global term of imprisonment of three years and eight months, the eight months being the part of the sentence related to the conviction for corruption. The applicant appealed before the Court of Cassation. When examining the applicant ’ s objection that the offence of corruption of which he was accused was time-barred, the Court of Cassation decided to reclassify the acts he allegedly committed (from simple corruption to corruption in judicial acts). By a judgment of 4/02/2004 the Court of Cassation dismissed this objection on the basis of the new classification of the acts. It indicated that this result could not be considered as reformatio in pejus , inasmuch as the prison sentence imposed by the lower court was not increased.

The European Court found that whilst domestic courts may reclassify the acts which they have to judge, in this case the applicant was neither warned of the possibility of reclassification nor given the possibility to contest the new accusation by adversarial argument. The Court also noted that it was plausible to argue that the applicant ’ s defence would have been different had he known of the new accusation. The Court did not endorse the opinion according to which the modification of the accusation had had no effect on the determination of the conviction imposed on the applicant.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

The Court awarded no just satisfaction in this case.

b) Individual measures

The applicant was sentenced to three years and eight months ’ imprisonment, of which he served seven months and one day. Subsequently, as from 6/09/2004, the applicant ’ s prison sentence was commuted to probation under the supervision of a social service ( affidamento in prova al servizio sociale ), the remaining sentence to be served being less than two years.

The European Court considered that a retrial or a reopening of the case, if requested, represented in principle an appropriate way of redressing the violation (§ 46 of the judgment).

Following the European Court ’ s judgment, the applicant asked the Venice Court of Appeal to declare its judgment of 12/06/2002 non-enforceable under Article 670 of the Code of Criminal Procedure. By applying the case-law of the Court of Cassation (judgments Nos. 3600, Dorigo and 2432, Somogyi ), the Court of Appeal recognised its judgment as non-enforceable as far as the part relating to corruption was concerned and sent the applicant ’ s original appeal against its judgment to the Court of Cassation so that it might give effect to the European court ’ s judgment.

In its judgment of 11/12/2008, the Court of Cassation considered that, in the present case, the restitutio in integrum had to be confined to setting aside the part of its judgment which did not respect the principle of adversarial argument, that is the part in which the court itself decided to reclassify the acts the applicant allegedly committed from “simple corruption” to “corruption in judicial acts”. The Court of Cassation considered Article 625bis of the Code of Criminal Procedure to be the most appropriate instrument for achieving this result. This article, which provides a special appeal to remedy factual errors in judgments of the Court of Cassation, may also be applied analogia legis to breaches of the right to defence before this Court, thereby allowing removal of the part of the judgment called into question.

Therefore, the Court of Cassation annulled its own judgment of 4/02/2004 solely as far as the offence of corruption defined as corruption in judicial acts was concerned and ordered a new examination of the applicant ’ s appeal before the Court of Cassation against the judgment of 12/06/2002 of the Venice Court of Appeal. In the new proceedings, the Court of Cassation will not fail to take into account the Convention ’ s requirements on fairness of proceedings.

II. General measures

1) Reclassification of offences without applying the principle of adversarial argument :

According to the Italian government, no legislative change was necessary since the violation stems from the Court of Cassation ’ s jurisprudential interpretation of the general principles on the matter. The recent case ‑ law of the Court of Cassation has provided a new interpretation in compliance with the European Court ’ s case law. In its judgment of 11/12/2008, the Court of Cassation acknowledged that the decision of the European Court had the effect of enlarging the scope of application of the principle of adversarial argument in the national legal order. The Court of Cassation observed that the European Court ’ s judgment implies that from now on this principle applies to every stage of proceedings, including when the Court of Cassation is checking the compliance of a judgment with the law where a modification ex officio of the accusation has had an effect on the determination of the applicant ’ sentence.

2) Reopening of proceedings following a finding of violation : In its judgment of 11/12/2008, the Court of Cassation considered that in cases like the present one, the judgment of the European Court did not call into question the decision on the merits, but merely the Court of Cassation ’ s judgment which was unfair on account of a lacuna in the legal system (failure to apply the adversarial principle). Therefore the revision of the decision on the merits is not necessary and the application analogia legis of Article 625bis of the Code of Criminal Procedure is sufficient to fill the legal lacuna in similar cases.

3) Publication and dissemination

The judgment of the European Court has been sent out to the competent authorities and published on the internet sites of the Ministry of Justice ( www.giustizia.it ) and of the Court of Cassation ( www.cortedicassazione.it ), as well as in the database of the Court of Cassation on the case-law of the European Court of Human Rights ( 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 the measures adopted have fully remedied the consequences for the applicant of the violations of the Convention found by the European Court in this case, that these 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 30 September 2009 at the 1065th meeting of the Ministers’ Deputies