Resolution CM/ResDH(2008) 51 [1]

Execution of the judgment of the European Court of Human Rights

Rojas Morales against Italy

(Application No. 39676/98, judgment of 16 November 2000, final on 16 February 2001)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection 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 lack of impartiality of a criminal court due to the judges ' previous involvement in proceedings against a co ‑ accused of the applicant and during which the responsibility of the applicant had been assessed (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 Italy ' s 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 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(2008)51

Information about the measures to comply with the judgment in the case of Rojas Morales against Italy

Introductory case summary

The case concerns the unfairness -due a court ' s lack of impartiality- of criminal proceedings which resulted in the applicant ' s conviction in May 1996 and his being sentenced to 21 years ' imprisonment and a fine for drug-dealing. The finding of partiality concerned only the first-instance court, not the appeal court which re-examined the case and reduced the applicant ' s sentence.

The European Court found in the present case that there was nothing to cast doubt upon the personal or subjective impartiality of two of the first-instance judges who heard the case. On the other hand, it considered that the perception of partiality gave objective justification to the applicant ' s misgivings regarding the court. The Court found that two of the judges in question had already formed an opinion as to the applicant ' s guilt in an earlier judgment concerning the same offence, against one of the applicant ' s co-accused (violation of Article 6§1).

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

10 000 000 ITL

10 000 000 ITL

20 000 000 ITL

P aid on 25/05/2001

b) Individual measures

The European Court awarded as just satisfaction a sum of about 5 000 Euros in respect of “genuine loss of opportunity” and “certain moral harm”. Regarding the applicant ' s situation, he will complete his sentence in 2012. Accordingly it does not appear that the violation found by the European Court was caused by procedural errors or defects of sufficient gravity to cast a serious doubt on the outcome of the domestic criminal proceedings. Thus the conditions required by Recommendation Rec(2000)2 of the Committee of Ministers on the re-examination or reopening of certain cases at domestic level following judgments of the European Court do not appear to have been met in this case. Furthermore, the Italian authorities have indicated that the applicant has never manifested any request for reopening of the criminal proceedings at issue, or brought any other form of action before the national courts on the basis of the European Court ' s findings, even after the recent jurisprudential developments (see Court of Cassation judgment No. 2800 of 1 December 2006, which allowed the Committee of Ministers to adopt final Resolution CM/Res(2007)831, closing the Dorigo case).

II. General measures

The problems at the origin of this judgment cannot reoccur in Italy: the Constitutional Court, in its judgment No. 371 of 1996, declared the unconstitutionality of Article 34, paragraph 2, of the Code of Criminal P rocedure, since it did not provide the exclusion from a trial of a judge who had already taken part in proceedings to assess the guilt or otherwise of the same accused. This constitutional decision is set out in a footnote linked to the relevant article of the Code.

The European Court ' s judgment has been sent out to all criminal courts and published in the Bulletin of the Italian Ministry of Justice , No. 24 of 31/12/2003.

III. Conclusions of the respondent state

The government considers that the measures taken will prevent new, 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 25 June 2008 at the 1028th meeting of the Ministers’ Deputies