FIRST SECTION

DECISION

Application no. 40004/16 Rocco LICANDRO against Italy

The European Court of Human Rights (First Section), sitting on 7 November 2023 as a Chamber composed of:

Marko Bošnjak , President , Alena Poláčková, Krzysztof Wojtyczek, Lətif Hüseynov, Ivana Jelić, Gilberto Felici, Raffaele Sabato , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to the above application lodged on 2 July 2016,

Having regard to the observations submitted by the respondent Government and the observations submitted by the applicant in reply,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Rocco Licandro, is an Italian national who was born in 1966 and is detained in Sulmona (L’Aquila). He was represented before the Court by Mr F. Calabrese , a lawyer practising in Reggio Calabria.

2. The Italian Government (“the Government”) were represented by their Agent, Mr Lorenzo D’Ascia.

The circumstances of the case and its legal framework

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant stood trial for, among other offences, two counts of murder, cumulatively punishable by a life sentence with daytime isolation. The proceedings concerned more than 200 defendants.

5 . On an unspecified date prior to 2000, the Reggio Calabria Assize Court found the applicant guilty and sentenced him to life imprisonment with daytime isolation.

6. Law no. 479 of 16 December 1999 entered into force on 2 January 2000 and reintroduced the possibility of allowing a defendant liable to a sentence of life imprisonment to be tried under the summary procedure, a simplified process which entailed a reduction of sentence in the event of conviction. As amended by Law no. 479 of 1999, Article 442 § 2 of the Code of Criminal Procedure provided that, where the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence, following a conviction under the summary procedure, would be thirty years’ imprisonment.

7. Pursuant to section 4 ter of Decree-Law no. 82 of 7 April 2000, as amended and converted into Law no. 144 of 5 June 2000 (which entered into force on 8 June 2000), defendants liable to a sentence of life imprisonment were allowed to request trial under the summary procedure at their next hearing, provided that evidentiary hearings were still ongoing in their case, either at first or second instance.

8. On an unspecified date, while the proceedings were pending on appeal, the applicant asked to be tried under the summary procedure and his request was granted by the Reggio Calabria Assize Court of Appeal.

9. On 24 November 2000 Decree-Law no. 341 of 2000 entered into force. Section 7 of the Decree-Law provided that “life imprisonment”, as referred to in Law no. 479 of 1999, should be taken to mean “life imprisonment without daytime isolation”. In other words, only those liable to a sentence of life imprisonment without daytime isolation could be entitled to a reduction to thirty years’ imprisonment, while those liable to a sentence of life imprisonment with daytime isolation, such as the applicant, could only be entitled, in the event of trial under the summary procedure, to a reduction to life imprisonment without daytime isolation.

10. On 3 April 2001 the Court of Appeal, while upholding the applicant’s conviction, reduced the life sentence applicable to each of the two counts of murder to thirty years’ imprisonment, and redetermined his overall sentence as one of life imprisonment without daytime isolation.

11. The conviction became final on an unspecified date.

12. In Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009), the Court examined the issue of whether, by sentencing the applicant in that case to life imprisonment, the domestic courts had imposed a heavier penalty on him in breach of the principle of retrospective application of the more lenient criminal law, thus depriving him of an advantage that had been instrumental in his choice of trial under the summary procedure. The Court concluded that, as a result of the entry into force of Decree-Law no. 341 of 2000, Italy had failed to discharge its obligation to grant the applicant in that case the benefit of Law no. 479 of 1999 (which prescribed a more lenient penalty), in violation of Article 7 of the Convention. It also concluded that Article 6 § 1 of the Convention had been breached as a result of the frustration of the applicant’s legitimate expectation that thirty years’ imprisonment was the maximum sentence to which he was liable.

13. Following the Court’s judgment in Scoppola (no. 2) (cited above), the Constitutional Court, by judgment no. 210 of 3 July 2013, found that section 7 of Decree-Law no. 341 of 2000 was unconstitutional, as it retrospectively increased the maximum penalty for crimes punishable by a life sentence under the summary procedure.

14. On 22 September 2014 the applicant instituted proceedings for review of the enforcement order relating to his sentence ( incidente di esecuzione ), seeking a reduction of his life sentence to thirty years’ imprisonment in accordance with the principles set out in Scoppola (no. 2) (cited above) and arguing that there had been an error in determining the sentence in his case.

15. On 5 January 2015 the Reggio Calabria Assize Court of Appeal, acting as an enforcement court ( giudice dell’esecuzione ), dismissed the applicant’s request. The judge observed that, contrary to the situation in Scoppola (no. 2) (cited above), the applicant had not yet obtained a reduction of his sentence. His complaint that an error had been made by the competent court in determining the overall sentence should have been challenged within the proceedings on the merits. The Court of Appeal referred to the Court of Cassation’s judgment no. 42508 of 23 September 2014, in which that court had dismissed an identical application lodged by one of the applicant’s co-defendants (see Vadalà v. Italy , no. 14656/15).

16. On 12 January 2016 the Court of Cassation dismissed an appeal on points of law by the applicant.

complaints

17. The applicant complained that the domestic courts failed to apply the more lenient penalty provided for by the law in the context of the summary procedure, in violation of Article 7 of the Convention.

18. He also complained in substance under Article 6 § 1 of the Convention that, despite his waiver of a number of procedural safeguards, he had not been granted the reduction of sentence stemming from the summary procedure.

THE LAW

Alleged violation of Article 7 and Article 6 § 1 of the Convention

19. The applicant alleged that the sentence of life imprisonment was imposed on him in violation of Article 7 and of Article 6 § 1 of the Convention.

20. The relevant parts of those provisions read as follows:

Article 7

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

21 . On 4 February 2022 the Government informed the Court that, by judgment no. 15493 of 23 February 2021, the Court of Cassation had held that the overall life sentence without daytime isolation imposed on one of the applicant’s co-defendants, following his trial under the summary procedure, had been reduced to thirty years’ imprisonment. They thus raised an objection of non-exhaustion of domestic remedies, arguing that the applicant had at his disposal an available and effective remedy capable of redressing the situation of which he complained.

22 . The Government also pointed out that, by an order of 14 October 2021, the Reggio Calabria Assize Court of Appeal had reduced the sentence imposed on another of the applicant’s co-defendants, upon his request, substituting his life sentence with thirty years’ imprisonment (see today’s decision in the case Vadalà v. Italy , no. 14656/15, § 18). The Court of Appeal had held that where the Court of Cassation had ruled that the penalty imposed on a defendant was unlawful, that penalty should also be reduced in the case of all his or her co-accused in the same situation, in accordance with the principle that the outcome of an appeal grounded on a common issue must be identical for all defendants (pursuant to Article 587 of the Code of Criminal Procedure).

23. The applicant did not submit a reply to the Government’s arguments.

24. The general principles concerning the exhaustion of domestic remedies are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014) and Scordino v. Italy (no. 1) ([GC], no. 36813/97, §§ 140-42 and 147, ECHR 2006-V).

25. The Court observes that in Scoppola (no. 2) (cited above, § 154), it held that the respondent State was responsible for ensuring that the applicant’s sentence of life imprisonment was replaced by a penalty consistent with the principles set out in its judgment, which, in that case, was a sentence not exceeding thirty years’ imprisonment.

26 . Following that judgment, any defendant who had opted for trial under the summary procedure between 2 January and 24 November 2000 (namely the period during which Law no. 479 of 1999 was in force) – such as the applicant – was entitled to obtain a reduction of sentence by means of a review of the enforcement order ( incidente di esecuzione ), regardless of whether the defendant had previously lodged an application with the Court. The replacement of a life sentence with thirty years’ imprisonment would grant a defendant the benefit of the provision prescribing a more lenient penalty within the summary procedure and restore the main advantage stemming from that procedure, thus complying with the principles set out in Scoppola (no. 2) (cited above).

27. The Court takes note of the fact that, pursuant to Article 666 § 2 of the Code of Criminal Procedure, as interpreted by the Court of Cassation’s well ‑ established case-law (see, inter alia , judgment no. 18288 of the Plenary Court of Cassation of 21 January 2010), an application for review of an enforcement order can be submitted at any time. In the context of such an application, the enforcement court is called upon to review the final conviction so as to ensure compliance with the principle of nullum crimen sine lege .

28. The Court also acknowledges that, by judgment no. 15493 of 23 February 2021, the Court of Cassation granted a reduction of sentence to thirty years’ imprisonment to one of the applicant’s co-defendants (see paragraph 21 above). The above-mentioned judgment was published in the main Italian legal journals (see, mutatis mutandis , Leandro Da Silva v. Luxembourg , no. 30273/07, § 50, 11 February 2010), thus becoming public knowledge at the latest from 23 September 2021 (compare Scordino (no. 1) , cited above, § 147). The same reduction was granted to the applicant in Vadalà (cited above). The Court thus observes that such a reduction could be applied in the applicant’s case on the basis of the principle that the outcome of an appeal grounded on a common issue must be identical for all defendants.

29 . The respondent State has therefore made accessible in practice a specific remedy to redress at the domestic level the violation complained of (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 88, ECHR 2010 , and, mutatis mutandis , Zaghini v. San Marino , no. 3405/21, § 48, 11 May 2023) and the applicant has not made use of it.

30. In view of the foregoing, the Court concludes that the applicant has at his disposal an available effective remedy guaranteeing adequate redress for the alleged violations of the Convention. The Court therefore upholds the Government’s objection and rejects the present application for non ‑ exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2023.

Liv Tigerstedt Marko Bošnjak Deputy Registrar President