Final Resolution CM /ResDH(2007)83 [1]

Execution of the decisions of the Committee of Ministers

Case of Dorigo against Italy

(Application No. 33286/96, Interim Resolution DH(99)258 of 15/04/99 (violation),

Interim Resolutions ResDH(2002)30 of 19/02/02, ResDH(2004)13 of 10/02/04 and ResDH(2005)85)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the P rotection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”),

Having regard to Interim Resolution DH(99)258, adopted on 15 April 1999 in the case of Dorigo against Italy case, in which it concluded, in agreement with the report of the European Commission of Human Rights, that Article 6, paragraph 1 of the Convention had been violated by the unfairness of criminal proceedings brought against the applicant, who had been unable to question hostile witnesses, or have them questioned, and authorised publication of the report of the European Commission of Human Rights;

Whereas the Committee of Ministers has examined the proposals on just satisfaction in the Commission ' s report, which were supplemented by a letter from the P resident of the Commission of 30 March 1999;

Whereas, in a decision adopted under the former Article 32, paragraph 2, of the Convention, on 3 December 1999 at the Deputies ' 688th meeting, the Committee of Ministers ruled that the respondent government should, as proposed by the Commission, pay the applicant 5 000 000 million Italian lire within three months as just satisfaction for non-pecuniary damage, plus 7 000 000 million Italian lire to cover costs and expenses, i.e ., a total of 12 000 000 million Italian lire, and that interest assessed on each full month ' s delay, at the legal rate applying on the date of the decision, should be payable on any sums unpaid, from expiry of the deadline until full payment had been made;

Having asked the government of the respondent state to inform it of action taken on its decisions in this case, having regard to Italy ' s duty of compliance, under the former Article 32, paragraph 4 of the Convention;

Recalling that Committee of Ministers ' decisions finding a breach of the Convention, taken under former Article 32 require the respondent state, in addition to paying just satisfaction, to take, if necessary:

- individual measures putting an end to the violations and remedying their consequences, if possible through restitutio in integrum ; and

- general measures to prevent similar violations;

Just satisfaction

Having verified that the respondent state had paid the applicant the just satisfaction awarded within the time-limit laid down (see details in appendix);

General measures

Taking note of the general measures taken by the authorities to prevent violations of the Convention similar to those found in the present case (see details in appendix);

Noting in particular that certain requirements of Article 6 of the Convention were incorporated into the Italian Constitution in 1999, and that other changes in the law and subsequent case-law rulings have reinforced the direct effect of the Convention;

Individual measures

Having examined the information submitted by the government on problems encountered in executing the Committee ' s decisions in this case (see details in appendix), and having regard to the various interim resolutions adopted to encourage the Italian authorities to solve them, i.e.:

- ResDH(2002)30, noting that the absence of means of reopening the proceedings at issue had made it impossible fully to rectify the serious and continuing consequences of the violation found, and encouraging the Italian authorities to ensure the rapid adoption of new legislation in conformity with the principles laid down in its Recommendation No. R (2000) 2 on the reopening of domestic proceedings;

- ResDH(2004)13, noting that the legislative process had not yet borne fruit and strongly urging the Italian authorities to ensure that measures making it possible to erase the consequences of the violation for the applicant in this case be adopted quickly;

- ResDH(2005)85, firmly recalling the obligation on all the authorities concerned to ensure the adoption of appropriate measures in favour of the applicant, and calling for prompt adoption of legislation authorising re-examination of the Dorigo case at domestic level in conditions consistent with the Convention;

Deploring, first, the considerable delays noted in implementing its decisions and resolutions in this case, notwithstanding the importance and urgency of the measures required to remedy the consequences of the violation for the applicant, and, secondly, the fact that the applicant has thus been obliged to serve nearly all the prison sentence passed on him in the unfair trial;

Considering, however, that the Italian authorities ' recent decisions respond positively to the requirements stated in its own decisions in this case, i.e. remedy, as far as possible, the serious consequences of the violation for the applicant;

Taking note with satisfaction, more specifically, of the firm action taken by the public prosecutor in Udine, who applied first to the Assize Court and then to the Court of Cassation to release the applicant, arguing that his detention was rendered unlawful by the violation of the Convention found in this case;

Welcoming the judgment given, in response to this action, on 1 December 2006 by the Court of Cassation, which declared the applicant ' s detention unlawful, and ordered his final release, referring to the direct effects of the Convention in Italian law, noted Italy ' s prolonged failure to take action, in persistent violation of the Convention – in spite of the various interim resolutions adopted by the Committee of Ministers;

Noting moreover with satisfaction the conclusion of the Court of Cassation concerning the urgent need for legislative intervention to introduce into Italian Law the possibility to reopen criminal proceedings following judgments of the European Court ;

Believing that it is for the competent Italian authorities to draw all the necessary consequences from the decision of the court of Cassation and the requirements of the Convention, both generally and in the present case, particularly with regard to the erasure of the negative effects for the applicant of mentioning the conviction in his criminal record, as well as any other redress which may be due to him;

Strongly urging the Italian authorities to complete, as rapidly as possible, the legislative action needed to make it possible, in Italian law, to reopen proceedings following judgments given by the Court,

Declares , having examined the measures taken by the respondent state (see details in appendix), and noting that the applicant now has effective means of securing, as far as this is possible, erasure of the consequences of the violation, that it has fulfilled its obligations under the former Article 32 of the Convention in the present case, and

Decides to close the examination of this case.

Appendix to Resolution CM /ResDH(2007)83

Information about the measures to comply with the decisions

of the Committee of Ministers in the case of Dorigo against Italy

Introductory summary of the case

The case concerns the unfair nature of criminal proceedings which resulted in the applicant ' s being sentenced in 1994 to over 13 years and 6 months in prison, and also fined, for his involvement in a terrorist attack on a NATO military base in 1993. His conviction was solely based on statements made before the trial by three co-accused, without his being able to question them, or have them questioned, in accordance with the law applying at the material time (violation of Article 6§1 in conjunction with Article 6§3).

I. P ayment of just satisfaction and individual measures

A. Details of just satisfaction

Name and No. of application

P ecuniary

damage

Non-pecuniary damage

Costs and expenses

Total

Dorigo

33286/96

-

5 000 000 ITL

7 000 000 ITL

12 000 000 ITL

P aid on 21/03/2000

B. Individual measures

1) Measures expected: Italy ' s obligation to take individual measures was emphasised by the Committee of Ministers from the time the violation was found, in 1999. Specifically, it noted that the violation had had very serious negative consequences for the applicant. The payment of just satisfaction, covering only the non-pecuniary damage suffered up to 1999, was not in itself sufficient to erase these consequences, since the violation of the rights of the defence raised serious doubts concerning the validity of the conviction itself. Since no adequate execution measures had been taken, the Committee was obliged to adopt a series of measures to encourage the Italian authorities to respect their obligations under the Convention.

2) Various initiatives taken by the Council of Europe :

• The Committee of Ministers : To accelerate execution in this case, the Committee adopted several interim resolutions between 2002 and 2005 (see in particular ResDH(2002)30 of 19/02/2002, ResDH(2004)13 of 10/02/2004 and ResDH(2005)85 of 12/10/2005). In the last of those resolutions, it firmly reminded all the authorities concerned of their obligation to ensure the adoption of adequate execution measures benefiting the applicant, and called, in particular, for the adoption of legislation making it possible to reopen judicial proceedings when this was necessary to repair, as far as possible, the consequences of violations of the Convention (see, on this question, Committee of Ministers Recommendation (2000)2.)

This resolution was adopted in response to the unsatisfactory reply received from the Italian Minister of Foreign Affairs, Mr Fini, to a letter of 18/01/2005 from the Chairman-in-Office of the Committee, the P olish Minister of Foreign Affairs, Mr Rotfeld, requesting rapid practical action to benefit the applicant.

• The P arliamentary Assembly also reacted on several occasions to Italy ' s failure to take action, particularly in Recommendation 1684(2004) and Resolution 1411(2004), both of 23/11/2004, and Resolution 1516(2006) of 2 October 2006, and also in several parliamentary questions: by Mr Jurgens, No. 13 of 05/10/2004, Ms Bemelmans-Videc, No. 15 of 26/01/2005, and Mr Lloyd, No. 13 of 22/06/2005).

3) P rincipal measures examined by the Committee of Ministers:

Over the years, the Committee specifically considered the following solutions in this case.

- P residential pardon: this possibility was referred to in the Committee in July 2004 (see Addendum 4 to the annotated agenda for the 948th meeting, 29-30 November 2005). The Italian delegation said, however, that a pardon was unlikely to be obtained rapidly. The Deputies concluded that this was an ineffective remedy, even if coupled with adequate complementary measures (see CM /Inf/DH(2005)13), and so did not discuss it further.

- Reopening of the unfair proceedings: The Interim Resolutions, ResDH(2002)30 of 19/02/2002, ResDH(2004)13 of 10/02/2004 and ResDH(2005)85 of 12/10/2005 emphasised that reopening the proceedings complained of was still the best way of securing restitutio in integrum in this case. Several bills providing for reopening of the proceedings were tabled in P arliament. One was approved by one chamber, but not by the other.

At its 960th (March 2006) and 966th (July 2006) meetings, in view of the difficulties encountered with the adoption of effective measures, the Committee again called on the Italian authorities to remedy the consequences of the violation without delay, either by changing the law or developing the case-law.

4) Measures adopted in 2006: Notwithstanding the lack of progress on reopening the proceedings or securing a pardon, recent proceedings in two courts have produced practical results, i.e.:

• The proceedings for review of sentence, brought by the applicant in the Bologna Appeal Court . In March 2006, the Bologna Appeal Court questioned the constitutional legitimacy of domestic law, insofar as it did not allow the reopening of proceedings on the basis of a finding of a violation by the European Court . P ending the Constitutional Court ' s decision, the Appeal Court decided to suspend execution of Mr Dorigo ' s sentence, and he was provisionally released in March 2006.

• The proceedings brought in the Assize Court by the public prosecutor in Udine : the public prosecutor in Udine referred the case to the Assize Court , arguing that the applicant ' s detention was rendered unlawful by the European Court ' s finding that the Convention had been violated. In January 2006, the Assize Court rejected his application, whereupon he appealed. On 1 January 2006, the Court of Cassation set the Assize Court ' s decision aside, without referring it back, and ordered Mr Dorigo ' s unconditional release.

In this judgment, the Court of Cassation confirmed that the direct effect of the Convention was an established principle in the Italian judicial system. It insisted that machinery for the reopening of domestic proceedings was urgently needed, and noted that this was already possible in the case of in absentia judgments.

The Court of Cassation also emphasised that the Constitutional Court had not yet answered the question put to it by the Bologna Appeal Court , and that this created a legal vacuum. In these circumstances, and in view of Italy ' s prolonged inaction – despite the interim resolutions adopted by the Committee of Ministers and the persistent violations of Article 46 of the Convention – it ruled that the detention of the applicant, who had been convicted in unfair judicial proceedings, was unlawful.

• Subsequent action: In view of the Court of Cassation ' s decision, the applicant now has several new remedies which he can use to obtain compensation for his unlawful detention, and secure deletion of the conviction from his criminal record.

II. General measures

Adopted (See Resolution ResDH(2005)86 in the Lucà v. Italy case). Article 111 of the Italian Constitution, as amended in November 1999, gave constitutional status to certain requirements laid down in Article 6 of the Convention. This new constitutional provision was implemented by Act No. 63 of 1 March 2001, which amended Article 513 of the Code of Criminal P rocedure. Under the law as it stands, statements made by other accused persons in a non-adversarial context outside the court may be used in court against an accused person only with his consent (unless the judge finds that the other accused persons ' refusal to be questioned at the trial results from corruption or intimidation). This rule applies not only to statements made in the same, but also in different proceedings. In current proceedings, Act No. 35 of 25 February 2000 provides that statements made by witnesses who have not been exposed to questioning may be used against an accused person in court only if corroborated by other evidence.

III. Conclusions of the respondent state

The government considers that the action taken is such as to remedy, as far as possible, the effects of the violation for the applicant and prevent similar violations in future, and that Italy has therefore fulfilled its obligations under the former Article 32 of the Convention.

[1] Adopted by the Committee of Ministers on 20 June 2007 at the 997th meeting of the Ministers’ Deputies.