Interim Resolution ResDH (2004)13

Dorigo Paolo against Italy, application No. 33286/96, Interim Resolutions DH(99)258 of 15/04/99 (finding of a violation) and DH(2002)30 of 19/02/02 (Reopening of judicial proceedings in violation of the European Convention of Human Rights)

(Adopted by the Committee of Ministers on 10 February 2004 at the 871st meeting of the Ministers’ Deputies)

The Committee of Ministers, under the terms of former Article 32 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”),

Having regard to its decision of 15 April 1999 (Interim resolution DH(99)258) under former Article 32 of the Convention in the case Dorigo Paolo finding a violation of the right to a fair trial guaranteed by Article 6 of the Convention on account of the applicant’s conviction in 1993 on the basis of statements made before the trial by three “repented” co-accused, the applicant not having been allowed to examine these statements or to have them examined, in conformity with the law which was then in force until 1997; and

Having also regard to its Interim Resolution ResDH (2002)30, taking note of the fact the absence of means to reopen the impugned proceedings has made it impossible fully to rectify the serious and continuing consequences of the violation found;

Stressing the obligation of every state to abide by the decisions adopted under former Article 32 of the Convention, not least by adopting individual measures putting an end to the violations found and removing as far as possible their effects for the victims;

Recalling that, in the Interim Resolution ResDH (2002)30 mentioned above, the Italian authorities were encouraged to ensure the rapid adoption of new legislation in conformity with the principles in its Recommendation of 19 January 2000, No. R(2000)2 to member states on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights;

Stressing that a legislation in conformity with the principles contained in that Recommendation should allow the re-examination of proceedings notably where:

“( i ) the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and

(ii) the judgment of the Court leads to the conclusion that

(a) the impugned domestic decision is on the merits contrary to the Convention, or

(b) the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of”;

Noting that the draft law to introduce the possibility of such reopening in Italy, currently before the Senate, goes to some extent beyond the requirements of Recommendation No. R(2000)2 in that it foresees no distinction between Article 6 violations which affect the fairness of proceedin g s to such an extent as to cast serious doubt on their outcome and those which do not, and in that it takes no account of the seriousness of the consequences suffered;

Noting nonetheless with concern that the draft law would not apply to violations on the merits or to those which, as in the Dorigo Paolo case, occur before its entry into force and concern convictions for particularly serious offences;

Aware of the fact that the repression of crimes particularly dangerous to security in a democratic society calls for great severity and justifies special caution, but also that these requirements cannot justify either non- compliance with the obligation to rectify violations found by the Convention’s organs or any inequality of treatment between convicted persons to the extent that they are deprived of the enjoyment of guaranteed rights such as the right to a fair trial or to the presumption of innocence ;

Persuaded that a fair balance between these different demands can be struck in accordance with Recommendation No. R(2000)2 ;

Strongly urges the Italian authorities, without further delay, to ensure the adoption of measures allowing for the consequences for the applicant in this case to be erased, in accordance with Italy’s obligations under former Article 32 of the Convention.