CASE OF SCOPPOLA v. ITALY (No. 2)
Preliminary objection dismissed (lack of jurisdiction);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 7;Preliminary objection joined to the merits (non-exhaustion of domestic remedies);Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 6;Non-pecuniary damage - award
Alvina Gyulumyan;András Sajó;Antonella Mularoni;Françoise Tulkens;George Nicolaou;Giorgio Malinverni;Ireneu Cabral Barreto;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Peer Lorenzen;Rait Maruste;Vitaliano Esposito;Vladimiro Zagrebelsky
8. The applicant was born in 1940 and is at present imprisoned in Parma. 9. On 2 September 1999, after a fight with his two sons, the applicant killed his wife and injured one of his sons. He was arrested on 3 September. 10. At the end of the preliminary investigation the Rome prosecution service asked for the applicant to be committed to stand trial for murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm 11. At a hearing on 18 February 2000 before the Rome preliminary hearings judge (giudice dell'udienza preliminare – “the GUP”) the applicant asked to be tried under the summary procedure, a simplified process which entailed a reduction of sentence in the event of conviction. In the version in force at that time Article 442 § 2 of the Code of Criminal Procedure (“the CCP”) provided that, if the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence should be thirty years. (see paragraph 29 below). 12. The GUP agreed to follow the summary procedure. Further hearings were held on 22 September and 24 November 2000. The last-mentioned hearing began at 10.19 a.m. 13. On 24 November 2000 the GUP found the applicant guilty and noted that he was liable to a sentence of life imprisonment; however, as the applicant had elected to stand trial under the summary procedure, the judge sentenced him to a term of 30 years. 14. On 12 January 2001 the Public Prosecutor's Office at the Rome Court of Appeal appealed on points of law against the Rome GUP's judgment of 24 November 2000. The prosecution argued that the GUP should have applied Article 7 of Legislative Decree no. 341 of 24 November 2000, which entered into force on the very day when the applicant was convicted. After being amended by parliament, Legislative Decree no. 341 was converted into Law no. 4 of 19 January 2001. 15. The prosecution contended in particular that Article 7 of Legislative Decree no. 341 had amended Article 442 of the CCP and now provided that, in the event of trial under the summary procedure, life imprisonment was to be substituted for life imprisonment with daytime isolation if there were “cumulative offences” (concorso di reati) or a “continuous offence” (reato continuato – see paragraph 31 below). The GUP's failure to apply Legislative Decree no. 341 amounted to “a manifest error of law” (evidente errore di diritto). 16. On 5 and 22 February 2001 the applicant appealed. His chief submission was that he should be acquitted on the ground that his conduct had not been intentional or that, at the time when the offences were committed, he was incapable of understanding the wrongful nature of his acts and of forming the intent to commit them (incapacità de intendere e volere). In the alternative, he requested a reduction of his sentence. 17. As there were now two appeals, at two different levels of jurisdiction, the Public Prosecutor's appeal on points of law was changed to an appeal on both facts and law and the Rome Assize Court of Appeal was declared to have jurisdiction to hear the case (Article 580 of the CCP). 18. The hearing in private before the Rome Assize Court of Appeal was held on 10 January 2002. The applicant was not present and was tried in absentia. He alleged that, as he had difficulty in walking, he had asked to be taken to the courtroom by ambulance or some other suitably adapted vehicle but that, as the prison management had refused his request, he had been deprived of the possibility of participating in the appeal proceedings. 19. In a judgment of 10 January 2002, deposited with the registry on 23 January 2002, the Assize Court of Appeal sentenced the applicant to life imprisonment. 20. It observed that before the entry into force of Legislative Decree no. 341 Article 442 § 2 of the CCP had been interpreted to mean that life imprisonment was to be replaced by a term of thirty years, whether or not it was to be accompanied by daytime isolation on account of an accumulation of offences with the most serious one. In following that approach, the GUP had fixed the sentence in relation to the most serious offence, without considering whether to order the applicant's daytime isolation on account of his conviction on the other charges against him. 21. However, Legislative Decree no. 341 of 24 November 2000 had entered into force on the very day of the GUP's decision. As its provisions were classed as procedural rules, it was applicable to pending proceedings, according to the tempus regit actum principle. The Assize Court of Appeal further observed that under the terms of Article 8 of Legislative Decree no. 341 the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure. As he had not done so, the first-instance decision ought to have taken account of the change in the rules on penalties which had taken place in the meantime. 22. On 18 February 2002 the applicant appealed on points of law. He argued in the first place that the appeal proceedings should be declared null and void because he had not been able to participate, as defendant, in the appeal hearing on 10 January 2002. In his second and third grounds of appeal the applicant asserted that the trial courts had not given sufficient reasons either for ruling that he had intended to commit murder or for their finding that he knew what he was doing and had acted intentionally when committing the offences. Lastly, he contested the finding of an aggravating circumstance (that he had acted for futile reasons) and complained of the refusal to grant him extenuating circumstances. 23. On 31 July 2002 the applicant submitted further grounds of appeal. He contended that a fresh expert opinion should have been produced on his mental state at the time when the offences were committed and presented new arguments on the question of aggravating and extenuating circumstances. Lastly, he submitted that the penalty deemed to be applicable in his case (life imprisonment with isolation) was excessive. 24. In a judgment deposited with its registry on 20 January 2003, the Court of Cassation dismissed the applicant's appeal. 25. On 18 July 2003 the applicant lodged an extraordinary appeal on the ground of a factual error (Article 625a of the CCP). He asserted in the first place that the domestic courts' finding that he could have been taken to the appeal hearing by an ordinary means of transport and did not need an ambulance had been the result of an erroneous reading of the documents in the file. In addition, his absence, as the defendant, from that hearing had breached Article 6 of the Convention. The applicant further alleged that the sentence of life imprisonment imposed on him following the changes made by Legislative Decree no. 341 of 2000, and thus through a retrospective criminal-law provision, had breached Article 7 of the Convention and the principles of fair trial. He submitted that his waiver of procedural safeguards as a result of electing to stand trial under the summary procedure had not been compensated for by the reduction of his sentence promised by the State at the time when he made that choice. Lastly, he maintained that life imprisonment was an inhuman and degrading punishment and as such contrary to Article 3 of the Convention. 26. In a judgment of 14 May 2004, deposited with its registry on 28 October 2004, the Court of Cassation declared the applicant's extraordinary appeal inadmissible. It observed that he was not complaining of factual errors committed by the domestic courts but essentially attempting to challenge the Court of Cassation's assessment on points of law. 27. The summary procedure is governed by Articles 438 and 441 to 443 of the CCP. It is based on the assumption that the case can be decided as the file stands (allo stato degli atti) at the preliminary hearing. A request to be tried under the summary procedure may be made orally or in writing at any time before the parties have made their submissions at the preliminary hearing. If the summary procedure is followed, the hearing takes place in private and is given over to the parties' oral submissions; in principle, they must base their arguments on the documents included in the prosecution's file, even though, exceptionally, oral evidence may be allowed. If the judge finds the defendant guilty, the sentence imposed is reduced by one-third (Article 442 § 2). The relevant domestic provisions are described in the Hermi v. Italy judgment ([GC], no. 18114/02, §§ 27-28, ECHR 2006-...). 28. The Court also gave an overview of the provisions governing the summary procedure in its Fera v. Italy judgment (no. 45057/98, 21 April 2005). At the time of the events which gave rise to the Fera case the summary procedure was not available to persons accused of crimes punishable by life imprisonment. In judgment no. 176 of 23 April 1991 the Constitutional Court had quashed the provision of the Code of Criminal Procedure making that possibility available because it went beyond the powers parliament had delegated to the government with a view to the adoption of the new Code of Criminal Procedure (“the CCP”). 29. By Law no. 479 of 16 December 1999, which came into force on 2 January 2000, parliament reintroduced the possibility of allowing a defendant liable to a sentence of life imprisonment to opt for the summary procedure. Section 30 provides: Section 30 “The following changes shall be made to Article 442 of the Code of Criminal Procedure: ... (b) in paragraph 2, after the first sentence is added the following [second and last sentence]: 'life imprisonment shall be replaced by thirty years' imprisonment'”. 30. Legislative Decree no. 341 of 24 November 2000, which came into force on the same day and was converted into Law no. 4 of 19 January 2001, purported to give an authentic interpretation of the second sentence of paragraph 2 of Article 442 of the CCP and added a third sentence. 31. Legislative Decree no. 341 included, under the chapter entitled “Authentic interpretation of Article 442 paragraph 2 of the Code of Criminal Procedure and provisions regarding the summary procedure in trials for offences punishable by life imprisonment”, Articles 7 and 8, which provide: Article 7 “1. In Article 442, paragraph 2, [second and] last sentence, of the Code of Criminal Procedure, the words 'life imprisonment' should be taken to mean life imprisonment without daytime isolation. 2. In Article 442, paragraph 2, of the Code of Criminal Procedure is added, in fine, the following sentence: “Life imprisonment with daytime isolation, in the event of cumulative offences or a continuous offence, shall be replaced by life imprisonment.” Article 8 “1. In criminal proceedings pending on the date of the entry into force of the present legislative decree, where the defendant is liable to or has been sentenced to life imprisonment with daytime isolation, and has opted for the summary procedure ..., he or she may withdraw his or her request within thirty days of the date on which the legislation implementing the present legislative decree enters into force. In that case, the proceedings shall be resumed under the ordinary procedure at the stage they had reached when the request was made. Any investigative findings which may have been reached may be used within the limits laid down by Article 511 of the Code of Criminal Procedure. 2. Where, on account of an appeal by the prosecution, it is possible to apply the provisions of Article 7, the accused may withdraw the request referred to in paragraph 1 within thirty days of the time when he or she learns of the appeal by the prosecution or, if such an appeal was lodged before the entry into force of the legislation to implement the present legislative decree, within thirty days' of the latter date. The provisions of the second and third sentences of paragraph 1 shall apply...” 32. Article 2 of the 1930 Criminal Code, entitled “Succession of criminal laws”, reads as follows: “1. No one may be punished for an act which, under the law in force at the time when it was committed, was not an offence. 2. No one may be punished for an act which, under a subsequent law, does not constitute an offence; if the defendant has been sentenced, execution of his sentence and its criminal effects shall cease. 3. If the law in force at the time when the offence was committed and later [laws] differ, the law to be applied is the one whose provisions are most favourable to the defendant, except where a final sentence has already been imposed. 4. The provisions of the [two] preceding paragraphs shall not apply when the later laws are exceptional and temporary. 5. The provisions of the present article shall also apply where a legislative decree's conversion into statute-law is time barred [decadenza] or does not take place, and where a legislative decree has been converted into statute-law with amendments.” 33. Royal Decree no. 1252 of 7 June 1923 provides that the Official Gazette (Gazzetta ufficiale) is published by the Ministry of Justice. Article 2 of the decree reads as follows: “Publication shall take place every working day during the hours of the afternoon (nelle ore pomeridiane).” 34. By judgment no. 132 of 19 May 1976 the Constitutional Court ruled that publication of a law in the Official Gazette was the “essential and decisive moment” among the steps taken to promulgate a legislative text. Moreover, the expression “publication in the Official Gazette” presupposed that the latter was placed in circulation and therefore accessible to the public. The Constitutional Court observed in particular: “[the terms] publication of laws 'in the' Official Gazette [could] only mean ... also publication 'of the' Official Gazette ...: otherwise there would be a negation of the very procedure of publishing laws, which, historically speaking, was designed to create an objective situation effectively permitting every individual to be aware of the acts in question (situazione oggettiva di effettiva conoscibilità, da parte di tutti, degli atti medesimi).” 35. Article 15 of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, which entered into force on 23 March 1976, is worded as follows: “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 when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby. 2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” 36. Article 9 of the American Convention on Human Rights, which was adopted on 22 November 1969 at the Inter-American Specialised Conference on Human Rights and came into force on 18 July 1978, reads as follows: “No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.” 37. At the European Council meeting in Nice on 7 December 2000 the European Commission, the European Parliament and the Council of the European Union proclaimed the Charter of Fundamental Rights of the European Union. Article 49 of the Charter, entitled “Principles of legality and proportionality of criminal offences and penalties” is worded as follows: “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 law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations. 3. The severity of penalties must not be disproportionate to the criminal offence.” 38. In the case of Berlusconi and Others, the Court of Justice of the European Communities held that the principle of the retroactive application of the more lenient penalty formed part of the constitutional traditions common to the member States (see the judgment of 3 May 2005 in joined cases C-387/02, C-391/02 and C-403/02). The relevant passages of the judgment (§§ 66 to 69) read as follows: “66. Setting aside the applicability of Article 6 of the First Companies Directive to the failure to publish annual accounts, it should be noted that, under Article 2 of the Italian Criminal Code, which sets out the principle that the more lenient penalty should be applied retroactively, the new Articles 2621 and 2622 of the Italian Civil Code ought to be applied even if they entered into force only after the commission of the acts underlying the prosecutions brought in the cases in the main proceedings. 67. It must be pointed out in this regard that, according to settled case-law, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, inter alia, Case C 112/00 Schmidberger [2003] ECR I 5659, paragraph 71 and the case-law there cited, and Joined Cases C 20/00 and C 64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I 7411, paragraph 65 and the case-law there cited). 68. The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member States. 69. It follows that this principle must be regarded as forming part of the general principles of Community law which national courts must respect when applying the national legislation adopted for the purpose of implementing Community law and, more particularly in the present cases, the directives on company law.” 39. The principles affirmed by the Court of Justice were repeated in a judgment of the Criminal Division of the French Court of Cassation given on 19 September 2007 (dismissal of appeal no. 06-85899). The relevant passages of the judgment read as follows: “... in any event the general principles of Community law take precedence over national law. In a judgment of 3 May 2005 the Court of Justice of the European Communities observed that the principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the member States and it follows that the said principle must be considered one of the general principles of Community law which national courts must comply with when applying the national law adopted with a view to implementing Community law (paragraphs 68 and 69 of the judgment of 3 May 2005). In the present case, consequently, it was in breach of that principle taking precedence over national law that the Paris Court of Appeal sentenced [the accused] on the basis of a national law adopted with a view to implementing Community law, having unlawfully disregarded the principle of the retroactive application of the more lenient penalty. ... Article 15 of the International Covenant on Civil and Political Rights provides, without any exception, that where, subsequent to the commission of an offence, the law provides for the application of a more lenient penalty, the offender must be given the benefit thereof. That text takes precedence over French law by virtue of Article 55 of the Constitution of 4 October 1958. It follows that the Paris Court of Appeal could not disregard the new more lenient law on the sole ground that the later law had expressly excluded any retroactive effect in contravention of the principle laid down by the text referred to above. ...” 40. Under the terms of Article 24 § 2 of the Statute of the International Criminal Court, “In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.” 41. In a judgment of 4 February 2005, given in the Dragan Nikolic case (no. IT-94-2-A), the Appeals Chamber of the ICTY held that the principle of the applicability of the more lenient criminal law (lex mitior) applied to its statute. The relevant parts of the judgment (§§ 79 to 86) read as follows: “79. The Trial Chamber first considered whether the principle of lex mitior had been applicable in the former Yugoslavia and whether it was part of the law of the International Tribunal and then addressed the question of whether the lex mitior principle was applicable in the present case. 80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle of lex mitior applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction” and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply. The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal. 81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide. 82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person's life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges. 83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment. 84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia. It has merely to take it into consideration. Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal's judges. In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal's statute, States could then prevent their citizens from being properly sentenced by this Tribunal. This is not compatible with the International Tribunal's primacy enshrined in Article 9(2) of the Statute and its overall mandate. 85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported. 86. For the foregoing reasons, the fifth ground of appeal is dismissed.”