ECtHR / Application no. 10249/03 / Judgment

Scoppola v. Italy (No. 2)
Policy area
Justice, freedom and security
Deciding body type
European Court of Human Rights
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
17/09/2009
ECLI (European case law identifier)
ECLI:CE:ECHR:2009:0917JUD001024903
  • ECtHR / Application no. 10249/03 / Judgment

    Key facts of the case:

    1.  The case originated in an application (no. 10249/03) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Franco Scoppola (“the applicant”), on 24 March 2003.

    ...

    3.  The applicant alleged in particular that his sentence to life imprisonment had breached Articles 6 and 7 of the Convention.

    ...

    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.

    ...

    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.

    ...

    24) In a judgment deposited with its registry on 20 January 2003, the Court of Cassation dismissed the applicant's appeal.

     

    Outcome of the case:

    For the reasons, the Court

    1.  Holds unanimously that it has jurisdiction to examine the case submitted to it from the standpoint of Article 6 of the Convention also;

    2.  Dismisses unanimously the Government's plea of non-exhaustion of domestic remedies grounded on the fact that the applicant did not raise before the national courts his complaints under Article 7 of the Convention;

    3.  Holds by eleven votes to six that there has been a violation of Article 7 of the Convention;

    4.  Joins to the merits unanimously the Government's plea of non-exhaustion of domestic remedies grounded on the fact that the applicant did not avail himself of the possibility of withdrawing his request for adoption of the summary procedure and rejects it;

    5.  Holds unanimously that there has been a violation of Article 6 of the Convention;

    6.  Holds

    (a)  unanimously that the respondent State is responsible for ensuring that the sentence of life imprisonment imposed on the applicant is replaced by a penalty consistent with the principles set out in the present judgment (see paragraph 154 above);

    (b) by sixteen votes to one that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

    (c) unanimously that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

    (d) unanimously that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

    7.  Dismisses unanimously the remainder of the applicant's claim for just satisfaction.

  • Paragraphs referring to EU Charter

    105) The Court considers that a long time has elapsed since the Commission gave the above-mentioned X v. Germany decision and that during that time there have been important developments internationally. In particular, apart from the entry into force of the American Convention on Human Rights, Article 9 of which guarantees the retrospective effect of a law providing for a more lenient penalty enacted after the commission of the relevant offence (see paragraph 36 above), mention should be made of the proclamation of the European Union's Charter of Fundamental Rights. The wording of Article 49 § 1 of the Charter differs – and this can only be deliberate (see, mutatis mutandis, Christine Goodwin, cited above, § 100 in fine) – from that of Article 7 of the Convention in that it states: “If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable” (see paragraph 37 above). In the case of Berlusconi and Others, the Court of Justice of the European Communities, whose ruling was endorsed by the French Court of Cassation (see paragraph 39 above), held that this principle formed part of the constitutional traditions common to the member States (see paragraph 38 above). Lastly, the applicability of the more lenient criminal law was set forth in the statute of the International Criminal Court and affirmed in the case-law of the ICTY (see paragraphs 40 and 41 above).