CASE OF SCOPPOLA v. ITALY (No. 2)
(Application no. 10249/03)
17 September 2009
This judgment is final but may be subject to editorial revision.
In the case of Scoppola v. Italy (no. 2),
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Ireneu Cabral Barreto,
Mirjana Lazarova Trajkovska, judges,
Vitaliano Esposito, ad hoc judge,
and Michael O'Boyle, Deputy Registrar,
Having deliberated in private on 7 January and 8 July 2009,
Delivers the following judgment, which was adopted on the last mentioned date:
There appeared before the Court:
(a) for the Government
Mr N. Lettieri, of the State legal service, Agent;
(b) for the applicant
Mr N. Paoletti, lawyer,
Mrs A. Mari, lawyer, Counsel,
Mrs G. Paoletti, lawyer, Adviser.
The Court heard addresses by Mr Paoletti, Mr Lettieri and Mrs Mari, and their replies to questions from the Court.
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. The summary procedure
B. The amendment of Article 442 of the CPP by Law no. 479 of 16 December 1999
“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'”.
C. Legislative Decree no. 341 of 24 November 2000
“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.”
“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...”
D. Article 2 of the Criminal Code
“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.”
E. Publication in the Official Gazette
“Publication shall take place every working day during the hours of the afternoon (nelle ore pomeridiane).”
III. INTERNATIONAL TEXTS AND DOCUMENTS
A. The United Nations Covenant on Civil and Political Rights
“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 the 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.”
B. The American Convention on Human Rights
“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.”
C. The European Union's Charter of Fundamental Rights and the case-law of the Court of Justice of the European Communities
“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.”
“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  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  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.”
“... 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. ...”
D. 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.”
E. The case-law of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“the ICTY”)
“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.”
I. SCOPE OF THE CASE AND PRELIMINARY QUESTIONS RAISED BY THE GOVERNMENT
A. Whether the Court may examine the case under Article 6 of the Convention
1. The question raised by the Government
“The applicant further alleged a two-fold violation of Article 6 of the Convention... He argued that the proceedings had been unfair because he had been sentenced under the summary procedure and in his absence.
As regards the first limb of the complaint, he noted that in consequence of choosing the summary procedure he had waived certain rights guaranteed by Article 6. He added, however, that his waiver had not been voluntary but had been conditioned by an agreement entered into with the sole purpose of securing a reduction of his sentence. He contended that the respondent State – which had been repeatedly found by the European Court to be in breach of the reasonable-time requirement – had introduced a system aimed at rewarding defendants who waived fundamental safeguards instead of reorganising the administration of justice.
The Court notes that it was the applicant himself who requested application of the summary procedure. Although opting for the summary procedure has the effect of weakening procedural safeguards, the applicant may waive the safeguards of the ordinary procedure provided that the waiver is unequivocal and that no. public-interest considerations militate against it (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000).
There is no doubt that the applicant was aware of the consequences of his request for application of the summary procedure and that he unequivocally waived the rights guaranteed under the ordinary procedure. The Court does not consider that the possibility of securing a reduction of his sentence meant that the applicant was forced to request application of the summary procedure. Furthermore, Article 8 of the 2000 legislative decree gave him the possibility of withdrawing his request to forgo the ordinary procedure. Lastly, there was no public-interest consideration which militated against such a waiver.
The Court therefore finds that this limb of the complaint is ill-founded.
“For these reasons, the Court, unanimously,
Adjourns its examination of the applicant's complaint under Article 7 of the Convention;
Declares the remainder of the application inadmissible.”
“The Court notes first of all that the applicant's complaints do not exclusively concern the alleged infringement of the nulla poena sine lege principle, as enshrined in Article 7 of the Convention, but also the question whether the provisions introduced by Legislative Decree no. 341 of 24 November 2000 infringed the principles of fair trial as guaranteed by Article 6 § 1 of the Convention. ...
The Court considers, in the light of all the arguments of the parties, that these complaints raise serious questions of fact and of law which cannot be settled at this stage of the examination of the application but require an examination of the merits; it follows that these complaints cannot be declared manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been found.”
2. The applicant's reply
3. The Court's assessment
(a) the fact that the applicant had been unable to meet his lawyer in the premises intended for that purpose;
(b) the fact that the applicant had not been able to take part in the appeal hearing; and
(c) the applicant's allegation that his choice of the summary procedure, entailing the waiver of certain procedural rights, had not been voluntary.
50. The Grand Chamber observes that none of the above complaints was ultimately declared admissible and that the Government's fears in that respect are unfounded. Those aspects of the applicant's right to a fair trial are therefore not part of the “case” submitted to it.
51. It should be noted, however, that the partial decision of 8 September 2005 also mentioned a fourth complaint under Article 6, concerning the fact that the applicant had been sentenced to life imprisonment. The Court's Third Section took the view that that complaint “relate[d] to the same matter as the complaint concerning Article 7 of the Convention and must therefore be examined under the latter provision”.
52. When notice of the application was given to the Government the parties were therefore asked to submit observations on whether the applicant's life sentence had breached Article 7 of the Convention. Subsequently, in the applicant's observations in reply to those of the Government, he put forward arguments relating to a violation of the principles of fair trial. In particular, he alleged that when he opted for the summary procedure he entered into an agreement with the State whereby he waived part of his procedural safeguards in exchange for the substitution of a thirty-year sentence for life imprisonment in the event of his conviction. He contended that the State's failure to honour that agreement had been incompatible with Article 6 of the Convention.
56. Lastly, with regard to the Government's argument that there had been a breach of the adversarial nature of the procedure before the Court (see paragraph 45 above), it should be noted that the applicant's observations and the final decision on admissibility were communicated to the Government. They therefore had the opportunity before the Grand Chamber to submit any argument to the effect that the complaint relating to Article 6 was inadmissible or ill-founded. In that connection, the Grand Chamber reiterates that even after a Chamber decision to declare a complaint admissible it may, where appropriate, examine issues relating to its admissibility, for example by virtue of Article 35 § 4 in fine of the Convention, which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”, or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII, and Perna, cited above, §§ 23-24). Thus, even at the merits stage, subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Azinas, cited above, § 32).
57. It follows that there is no reason why the Grand Chamber should not examine the case submitted to it from the standpoint of Article 6 also. The Government's preliminary objection must therefore be rejected.
B. Whether the Court's Second Section was entitled to relinquish jurisdiction in favour of the Grand Chamber
II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION
“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.
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 of law recognised by civilised nations.”
A. The Government's plea of non-exhaustion of domestic remedies
1. The Chamber's decision
2. Arguments of the parties
(a) The Government
“After asserting that in his case the prosecution was not even empowered to appeal, because Article 443 of the Code of Criminal Procedure provided for such a possibility only in the event of a conviction by the preliminary investigations judge following an amendment of the charge, the applicant – who did not include this point in his grounds of appeal on points of law against the judgment of the Assize Court of Appeal – noted that ultimately he had been sentenced to a penalty which was not provided for at the time when he agreed to be tried under the summary procedure.”
(b) The applicant
3. The Court's assessment
(a) General principles
69. The rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time, it normally requires that the complaints intended to be made subsequently at the international level should have been aired before the appropriate national courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I, and Azinas, cited above, § 38).
(b) Application of the above principles in the present case
73. As regards the question whether remedies were exhausted, the Court observes that, in his appeal against his conviction at first instance the applicant's 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. In the alternative, he requested a reduction of his sentence (see paragraph 16 above). In his appeal on points of law the applicant complained of being convicted in his absence, repeated his arguments concerning the absence of criminal intent and his mental state, contested an aggravating circumstance and asked the Court of Cassation to acknowledge the existence of extenuating circumstances (see paragraphs 22-23 above).
75. It remains to be determined, however, whether grounds of appeal on questions of fact or law that the applicant might possibly have relied on with regard to the allegedly retrospective imposition of life imprisonment and its negative repercussions on the fairness of the proceedings had any prospects of success. In that connection, Legislative Decree no. 341 of 2000 had the force of law in the Italian legal system and that the judges of the Court of Appeal and the Court of Cassation were required to apply it in proceedings before them. It should also be pointed out that, in the Italian system, an individual is not entitled to apply directly to the Constitutional Court: only a court which is hearing the merits of a case has the possibility of making a reference to the Constitutional Court, at the request of a party or of its own motion. Accordingly, such an application cannot be a remedy whose exhaustion is required under the Convention (see Brozicek v. Italy, 19 December 1989, § 34, Series A no. 167, and C.I.G.L. and Cofferati v. Italy, no. 46967/07, § 48, 24 February 2009).
76. The Court observes that the Government submitted that the applicant could have relied on Article 2 § 3 of the Criminal Code, which set forth the principle of the retrospective application of the criminal law more favourable to the accused (see paragraphs 32 and 66 above). However, even supposing that such a principle could apply to the provisions of the Code of Criminal Procedure, it should be noted that Article 2 of the Criminal Code is only a provision of ordinary law, set out in a code adopted in 1930. Under Italian law, more recent laws may, as a general rule, derogate from previous laws. The Government did not argue that such a rule was not applicable in the present case, and have failed to explain why a subsequent law, such as Legislative Decree no. 341, might not have legitimately derogated from Article 2 of the Criminal Code. Moreover, they did not produce any example of cases in which that provision had been successfully relied on in a situation comparable with that of the applicant. Nor have the Government established that it was possible to avoid application of Legislative Decree no. 341 on the ground that it was incompatible with the Convention.
77. In the light of the foregoing, the Court considers that the Government have not established that the remedies the applicant could have used to contest the application of Legislative Decree no. 341 of 2000 had any prospects of success.
78. It follows that the Government's preliminary objection on the ground of non-exhaustion cannot be accepted.
B. Merits of the complaint
1. Arguments of the parties
(a) Allegedly retrospective application of criminal law
(i) The applicant's argument
(ii) The Government's arguments
(b) Alleged infringement of the principle of the retrospective application of the more lenient criminal law
(i) The applicant's argument
(ii) The Government's arguments
(c) Alleged lack of clarity of the law on the basis of which the sentence of life imprisonment was imposed
(i) The applicant's argument
(ii) The Government's arguments
2. The Court's assessment
(a) Interpretation of Article 7 of the Convention in the Court's case-law
(i) The nullum crimen, nulla poena sine lege principle
94. It follows that offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable (see Kokkinakis v. Greece, 25 May 1993, § 52, Series A no. 260-A; Achour, cited above, § 41; and Sud Fondi Srl and Others v. Italy, no. 75909/01, § 107, 20 January 2009).
(ii) The notion of “penalty”
96. The notion of “penalty” in Article 7 § 1 of the Convention, like those of “civil rights and obligations” and “criminal charge” in Article 6 § 1, has an autonomous meaning (see in particular, regarding “civil rights”, X v. France, 31 March 1992, § 28, Series A no. 234-C, and, on the subject of “criminal charges”, Demicoli v. Malta, 27 August 1991, § 31, Series A no. 210). To render the protection offered by Article 7 effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a “penalty” within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307-A).
97. The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a penalty is whether the measure in question is imposed following conviction for a “criminal offence”. Other factors that may be taken into account as relevant in this connection are the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, cited above, § 28).
(iii) Foreseeability of the criminal law
99. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability (see Kokkinakis, cited above, §§ 40-41, Cantoni v. France, 15 November 1996, § 29, Reports 1996 V, Coëme and Others, cited above, § 145, and E.K. v. Turkey, no. 28496/95, § 51, 7 February 2002).
(c) Whether Article 442 of the CCP contains provisions of substantive criminal law
113. In the light of the foregoing, the Court considers that Article 442 § 2 of the CCP is a provision of substantive criminal law concerning the length of the sentence to be imposed in the event of conviction following trial under the summary procedure. It therefore falls within the scope of the last sentence of Article 7 § 1 of the Convention.
(d) Whether the applicant was granted the benefit of the more lenient criminal law
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The Government's plea of non-exhaustion of domestic remedies
125. The Government observed that the applicant had not availed himself of the possibility of withdrawing his request for adoption of the summary procedure, provided for in Article 8 § 2 of Legislative Decree no. 341 of 2000 (see paragraph 31 above). Under the terms of Article 8 § 2 the applicant had until 21 February 2001 to exercise his right to withdraw his request, and if he had done so he would have been entitled to an ordinary trial attended by all the safeguards enshrined in Article 6 of the Convention.
126. The Court considers that the Government's objection raises questions closely bound up with those raised by the applicant's complaint under Article 6 of the Convention. It therefore decides to join the plea of non-exhaustion of domestic remedies to the merits (see, mutatis mutandis and among many other authorities, Isaak v. Turkey, no. 44587/98, § 78, 24 June 2008).
B. Merits of the complaint
1. Arguments of the parties
(a) The applicant
(b) The Government
2. The Court's assessment
IV. APPLICATION OF ARTICLES 46 AND 41 OF THE CONVENTION
A. Article 46 of the Convention
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
B. Article 41 of the Convention
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
2. Costs and expenses
3. Default interest
FOR THESE REASONS, THE COURT
(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;
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 17 September 2009.
Michael O'Boyle Jean-Paul Costa
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) concurring opinion of Judge Malinverni, joined by judges Cabral Barreto and Šikuta;
(b) partly dissenting opinion of Judge Nicolaou, joined by judges, Bratza, Lorenzen, Jočiené, Villiger and Sajó.
CONCURRING OPINION OF JUDGE MALINVERNI, JOINED BY JUDGES CABRAL BARRETO AND ŠIKUTA
I agree with all the arguments that led the Grand Chamber to find a violation of Article 7 of the Convention. I regret, however, that the judgment does not look more deeply into what to my mind constitutes the particularity of this case, namely the circumstances surrounding the prosecution's appeal on points of law.
Those circumstances are as follows. The first-instance judgment was delivered on 24 November 2000, that is, on the same day as the entry into force of Legislative Decree no. 341 (see paragraph 13 of the judgment). According to the applicant's assertions, which the Government did not contest, the trial before the Rome preliminary hearings judge began at 10.19 a.m. As judgment was delivered immediately after the trial hearing (see paragraph 81), it is very probable that the decision of the preliminary hearings judge was given during the morning of 24 November 2000.
Legislative Decree no. 341 was published in the Official Gazette on the same day, but during the afternoon (see paragraph 33). It follows that at the time when the first-instance judgment was delivered the decree in question could not have been known of by anyone, and the fact is that a legislative instrument cannot take effect before its publication in the Official Gazette (see paragraph 34).
In the appeal on points of law of 12 January 2001 the public prosecutor's office at the Rome Court of Appeal argued that the preliminary hearings judge should have applied Article 7 of Legislative Decree no. 341 and that that omission should be considered a “manifest error of law”. The prosecution service accordingly asked for the sentence imposed on the applicant – thirty years' imprisonment – to be replaced by life imprisonment (see paragraphs 14 and 15). That application, as we know, was allowed by the Rome Assize Court of Appeal.
In my opinion, the principles of legal certainty, the rule of law and the non-retrospective application of a harsher law require the authorities not to apply, to a defendant's detriment, a law which could not have been known of at the time when judgment was delivered.
When he requested adoption of the summary procedure, and right up to the end of the first-instance proceedings, the applicant could not have foreseen the consequences of the application of Legislative Decree no. 341. Accordingly, in the particular circumstances described above, the penalty imposed by the appellate court at the prosecution's request had no legal basis whatsoever and was therefore, on that account too, contrary to Article 7 of the Convention.
PARTLY DISSENTING OPINION OF JUDGE NICOLAOU, JOINED BY JUDGES BRATZA, LORENZEN, JOČIENÉ, VILLIGER AND SAJÓ
The Grand Chamber is unanimously in agreement that in the present case there has been a violation of Article 6 § 1 of the Convention. The reasoning set out in the part of the judgment dealing specifically with Article 6 § 1, with which we are in full agreement, should in our view be read in the light also of the principles already recognised by the Court and discussed by the majority in connection with Article 7 § 1, for it is in the broader context that the fairness issue under Article 6 § 1 acquires its full significance.
At the time when the offences were committed the penalty was life imprisonment with daytime isolation. For offences carrying this penalty the summary procedure, which entailed a reduced sentence, did not apply. It did, however, subsequently become available. On 19 February 2000 the applicant opted for it and, with the consent of the prosecution, the criminal court agreed that it should follow it. The case was twice adjourned and it was not dealt with until 24 November 2000, which was more than eight months later, even though for both trial and sentence less than a morning's sitting was required. The law-decree providing for a higher penalty, published later on the same day, meant to undo what had already been done. Having met with judicial approval, it resulted in an increase in the applicant's sentence. It is in these circumstances that we have concluded that there was a lack of fairness.
However, although the needs of the present case are fully met by Article 6 § 1, the majority are not content with that. They take the view that the matter should primarily be treated under Article 7 § 1. They not only regard the terms of Article 7 § 1 as encompassing the more favourable law – the lex mitior - principle; they also consider that the case warrants the complete reversal of the Court's case-law by a new interpretation of Article 7 § 1 more consonant with the times. In our opinion Article 7 § 1 does not admit of such interpretation.
Although there is, seemingly, a thematic link between the legality principle of Article 7 § 1 and the more favourable law principle, a link which is, perhaps, strengthened by the fact that subsequent human rights instruments treat the two together, there is a vital difference between them. The former principle works at a higher level than the latter. It represents an integral part of the rule of law. Nullum crimen nulla poena sine praevia lege poenali: no one is to be convicted or punished without a pre-existing criminal law in force. Nothing is more fundamental than that. It is peremptory and inevitable. It is an essential condition of freedom. That is why Article 15 does not allow derogation from Article 7 § 1. The lex mitior principle does not form part of nor can it be considered an extension or a corollary of this rule of law requirement. It is a different kind of norm. It
expresses a choice that reflects the development of a social process in the context of criminal law. It circumscribes the scope of criminal law by preserving benefits accruing to defendants as a result of substantive laws subsequent to the commission of the offence and applicable while the case was pending. It remains, in the absence of some specific provision, a matter of policy or choice in the discretionary area enjoyed by the State in criminal matters.
It is clear that when Article 7 § 1 was adopted the lex mitior principle was not included in it; and it has not been suggested that anyone had then thought that it was covered by the nullum crimen nulla poena sine lege principle, often stated in this shortened form. Article 7 § 1 of the Convention, adopted in 1950, was modelled on Article 11 § 2 of the Universal Declaration of Human Rights, with which it is almost identical, adopted by the General Assembly of the United Nations in 1948. The Travaux Preparatoires of Article 7 § 1 reveal (at page 7, item (5)) that the possibility had been canvassed of adding to it the lex mitior principle but that it was abandoned. It is significant that when the corresponding provision of the International Covenant on Civil and Political Rights was being prepared, the draft at the initial phase contained only the nullum crimen nulla poena sine lege principle, the same as Article 7 § 1 of the Convention. The proposal to include the lex mitior principle came later, whereupon the following third sentence was added to give effect to it:
“If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty the offender shall benefit thereby”.
Views differed on whether it was right to do that. The Guide to the Travaux Préparatoires of the International Covenant on Civil and Political Rights, by Marc J. Bossuyt, contains an interesting account of the various considerations involved:
“Commission on Human Rights, 5th Session (1949) 6th Session (1950), 8th Session (1952)
A/2929, Chapt. VI, § 95: It was argued that the third sentence of paragraph 1 contradicted the assumption underlying the second sentence, namely that a penalty must be that which was authorized by the law in force at the time of its imposition [E/ CN.4/SR.159, §§ 46-48 (USA); E/CN.4/SR.324, p. 4 & p. 7 & p. 15 (GB), p. 5 (USA), p. 9 (IND)]. It was also said that, notwithstanding the praiseworthiness of the goal at which the third sentence aimed, it was not appropriate to make provision for it in the covenant, since it would seem to mean that convicted persons would be enabled as of right to demand that they should benefit from any change made in the law after their conviction [E/CN.4/SR.112, p. 3 (GB), p. 5 (GCA); E/CN.4/SR.324, p. 5 (USA)]. It was asserted that the executive authority of States parties to the covenant should retain an absolute discretion in applying the benefits of subsequently enacted legislation to such persons [E/CN.4/SR. 159, §§ 61-62 (USA), § 65 (GB), § 72 (RCH); E/CN.4/SR.324, p. 16 (GB)]. In opposition to these views it was observed that the tendency in modern criminal law was to allow a person to enjoy the benefit of such lighter penalties as might be imposed after the commission of the offence with
which he was charged [E/CN.4/SR.112, p. 4 (USA), p. 6 (RCH) p. 7 (SU); E/CN.4SR.159, § 83 (ET), § 86 (U), § 88 (F); E/CN.4/SR.199, § 151 (GB), § 153 (F), § 156 (ET); E/CN.4/SR.324, pp. 4-5 & p. 8 (SU), p. 5(B), p. 9 (YU), p. 11 (RCH) & (F), p. 12 (PL), p. 14 (IL)]; the laws imposing new and lighter penalties were often the concrete expression of some change in the attitude of the community towards the offence in question [E/CN.4/SR.112, p. 8 (F); E/CN.4/SR.324, p. 7 (RCH)].”
The argument that Article 7 § 1 of the Convention should be interpreted as including the most favourable law principle was examined and dismissed by the Commission in X. v. the Federal Republic of Germany, no. 7900/77, decision of 6 March 1978, Decisions and Reports no. 13, pp.70-72. The applicant was found guilty of the breach of a fiscal provision and a fine was imposed on him. He appealed. Before the appeal was heard the provision on which his conviction had been based was repealed. He submitted that he should be given the benefit of that change. He alleged a violation of Article 7 and he referred, in support, to Article 15 of the United Nations Covenant on Civil and Political Rights. It may be useful to note in this connection that the American Convention on Human Rights, already adopted in 1969 though it came into force on 18 July 1978, a few months after the decision in that case, also contained a sentence embodying the more favourable law principle. In a short decision the Commission pointed out what was obvious and expressed it in this way:
“However, Article 7 of the Convention does not contain a provision similar to Article 15, paragraph 1 in fine of the United Nations Covenant which is, moreover, based on a different hypothesis because it guarantees the convicted person the right to benefit from the application of a lighter penalty imposed by a law enacted subsequent to the commission of the offence. In the present case, some of the charges against the applicant are to a certain extent no longer criminal offences. Nevertheless, at the time that the offence was committed the action of the applicant constituted a crime according to national law within the meaning of Article 7, paragraph 1, so that this complaint is (also) manifestly ill-founded...”
The decision in X. v. the Federal Republic of Germany (above) was, relatively recently, followed by the Court in Ian Le Petit v. the United Kingdom (dec.), no. 35574/97, 5 December 2000, and in Zaprianov v. Bulgaria, (dec.), no. 41171/98, 6 March 2003, where it was categorically stated that:
“Article 7 does not guarantee the right to have a subsequent and favourable change in the law applicable to an earlier offence”.
The conflict of opinion in the present case should not be attributed to a difference in our interpretative approach to Article 7 § 1 of the Convention. We all profess adherence to the relevant international rules embodied in Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 and the view that we, as minority, take of Article 7 § 1 does not call in question the Court's case-law, to which the majority briefly refer, either on reversing previous decisions, where necessary, or of adapting to changing conditions and responding to some emerging consensus on new standards since, as is often emphasised, the Convention is a living instrument requiring a dynamic and evolutive approach that renders rights practical and effective, not theoretical and illusory. But no judicial interpretation, however creative, can be entirely free of constraints. Most importantly it is necessary to keep within the limits set by Convention provisions. As the Court pointed out in Johnston and Others v. Ireland (18 December 1986, § 53, Series A no.112):
“It is true that the Convention and its Protocols must be interpreted in the light of present- day conditions (see, amongst several authorities the above-mentioned Marckx judgment, Series A no. 31, p. 26, para. 58). However, the Court cannot, by means of an evolutive interpretation, derive from these instruments a right which was not included therein at the outset. This is particularly so here, where the omission was deliberate.”
This is a matter on which the Court should be particularly sensitive. And yet, although the present case does not require it, the majority has gone on to examine the case under Article 7 § 1 and, in order to apply it, has had it re-written in order to accord with what they consider it ought to have been. This, with respect, oversteps the limits.