CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 novembre 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s715E7C6D { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .sE208486F { font-family:Arial; color:#ff0000 } .sC7F250FD { font-style:normal } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s13E45F32 { font-family:Arial; color:#00548c } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .s68D1564D { width:34.89pt; display:inline-block } .s543FF837 { width:151.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   FIRST SECTION DECISION Application no. 14656/15 Domenico VADALÀ 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 19 March 2015, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Domenico Vadalà, is an Italian national who was born in 1949 and is detained in Reggio Calabria. He was represented before the Court by Mr N. Paoletti and Mr P. Cavazzino, lawyers practising in Rome. 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. The applicant’s life sentence 4.     The applicant stood trial for murder and assault (the first count), and multiple murder and attempted murder (the second count), crimes cumulatively punishable by a life sentence with daytime isolation. The proceedings concerned more than 200 defendants. 5 .     By a judgment of 19 January 1999, the Reggio Calabria Assize Court found the applicant guilty as charged and sentenced him to life imprisonment with daytime isolation. 6 .     The applicant, who was placed in detention on 31 March 1999, appealed against his conviction. 7 .     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. 8.     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. 9 .     At his first hearing following the enactment of Decree-Law no. 82 of 7   April 2000, the applicant asked to be tried under the summary procedure. On 11 July 2000 his request was granted by the Reggio Calabria Assize Court of Appeal. 10.     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. 11.     On 3 April 2001 the Court of Appeal, while upholding the applicant’s conviction, reduced the life sentence applicable to each count of murder to thirty years’ imprisonment and redetermined his overall sentence as one of life imprisonment without daytime isolation. 12.     By judgment no. 24711 of 10 April 2002, the Court of Cassation dismissed an appeal on points of law by the applicant. The conviction became final on the same day. The judgment in Scoppola v. Italy (no. 2) and the subsequent case-law of the Constitutional Court 13.     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. 14 .     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. Proceedings for review of the enforcement order 15.     On 18 January 2011 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. 16.     On 17 January 2014 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. 17.     On 10 October 2014 the Court of Cassation dismissed an appeal on points of law by the applicant. A second similar application was dismissed by the Court of Appeal and then by the Court of Cassation on 11 July 2017. Further developments 18 .     On 13 January 2022 the applicant informed the Court that, following a renewed request, by an order of 14 October 2021 the Court of Appeal had reduced his overall sentence, substituting life imprisonment without daytime isolation with thirty years’ imprisonment. 19 .     The Court of Appeal referred to the Court of Cassation’s judgment no.   15493 of 23 February 2021, by which the life sentence imposed on one of the applicant’s co-defendants following trial under the summary procedure had been reduced to thirty years’ imprisonment. The Court of Appeal thus found that, where the Court of Cassation had held 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). It also considered that, having asked to be tried under the summary procedure between 2 January 2000 and 24 November 2000 (namely the period during which Law no. 479 of 1999 was in force), the applicant was entitled to a reduction of sentence as provided for by the law at the material time. 20.     The Court of Appeal’s order of 14 October 2021 became enforceable on 30 October 2021. complaints 21.     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. 22.     He also alleged a violation of Article 6 § 1 of the Convention, complaining that, despite his waiver of a number of procedural safeguards, he had not been granted the reduction of sentence stemming from the summary procedure. 23.     Lastly, he relied on Article 5 § 1 of the Convention to complain of the unlawfulness of his detention. THE LAW Alleged violation of Article 7 and Article 6 § 1 of the Convention 24.     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. 25.     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 ...” 26.     The Government objected that the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention. They pointed out that, following the Court of Appeal’s order of 14 October 2021, the applicant had obtained the reduction of sentence he had sought. They added that he had suffered no damage, since his detention had started on 31 March 1999 (see paragraph 6 above). Therefore, at the time of the submission of the Government’s observations, the applicant had been detained for twenty-three years and, as such, the length of his detention had not exceeded the term of thirty years’ imprisonment. 27.     In reply, the applicant argued that the domestic courts had failed to acknowledge the violations complained of and had not awarded him any form of compensation for the non-pecuniary damage he had suffered. 28.     In the present case, the Court does not consider it necessary to reach a conclusion on the question whether the applicant can still claim to be “victim” of a violation of Article 6 § 1 and Article 7 of the Convention. In the light of the new developments brought to its attention on 13 January 2022 (see paragraph 18 above), the Court considers that, for the reasons set out below, there is no objective justification for continuing to examine these complaints. 29.     The Court reiterates that, under Article 37 § 1 (b) of the Convention, it may “... at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ... the matter has been resolved ...”. In order to ascertain whether that provision applies to the present case,   the Court must examine, firstly, whether the circumstances complained of directly by an applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002; Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, §§ 96-97, ECHR 2007-I; and El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, §§ 29-30, 20 December 2007). 30.     In the instant case, the Court observes that by its order of 14 October 2021, the Court of Appeal, acting as an enforcement court, reduced the applicant’s sentence from life imprisonment to thirty years’ imprisonment (see paragraph 18 above and, mutatis mutandis , Hasanov and Others v.   Azerbaijan (dec.), no. 2059/16 and 3 others, § 44, 12 September 2023). 31.     The Court of Appeal made an explicit reference to judgment no.   15493 of 23   February 2021, in which the Court of Cassation had held that the life sentence imposed on one of the applicant’s co-defendants could not be maintained in the light of the Constitutional Court’s judgment no. 210 of 2013. In that judgment, the Constitutional Court found that section 7 of Decree-Law no. 341 of 2000 was unconstitutional as it breached Article 7 of the Convention, as the Court had held in Scoppola (no. 2) (cited above) (see paragraphs 14 and 19 above). The Court of Appeal also expressly acknowledged that the applicant was entitled to a reduction in sentence as he had asked to be tried under the summary procedure during the period when Law no. 479 of 1999 was in force (see paragraph 19 above). 32.     The Court then observes that, by reducing his sentence, the Court of Appeal granted him the benefit of the provision prescribing a more lenient penalty within the summary procedure (see   paragraph 7 above), which is precisely the subject matter of his complaint. 33.     The Court emphasises that the reduction was ordered long before the applicant’s detention would exceed the term of thirty years’ imprisonment (see paragraph 41 below). 34.     By reducing the applicant’s sentence to thirty years’ imprisonment, the Court of Appeal also restored the advantages stemming from the applicant’s choice of trial under the summary procedure (contrast Scoppola (no. 2) , cited above, § 140), thus remedying any defect in the proceedings (see,   mutatis mutandis , Dîrjan and Ştefan v.   Romania (dec.), nos.   14224/15 and 50977/15, § 27, 15 April 2020). 35.     Against this background, the Court considers that, following the above-mentioned reduction of the applicant’s sentence, the circumstances complained of by the applicant no longer obtain and the effects of a possible violation of the Convention on account of those circumstances have been redressed . The Court finds therefore that both conditions for the application of Article 37 § 1 (b) of the Convention are met (see   El Majjaoui and Stichting Touba Moskee , cited above, §§   30-34). 36.     Consequently, the matter giving rise to the applicant’s   complaints under Article 6 § 1 and Article 7 of the Convention can be considered to have been “resolved” within the meaning of Article   37 § 1 (b) of the Convention (see,   mutatis mutandis,   J.B. and Others v. Hungary (dec.), no. 45434/12 and 2 others, 27 November 2018). The Court also recalls that it is not required, for the purposes of Article   37   §   1   (b) of the Convention, that the national authorities acknowledge a violation of the Convention (see paragraph 28 above) or that the applicant, in addition to having obtained a resolution of the matter, is also granted compensation (see H.P. v. Denmark (dec.), no.   55607/09, §   78, 13 December 2016). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue the examination of the complaints at issue under Article 37 § 1   in fine . 37.     Accordingly, the application should be struck out of the Court’s list of cases in so far as it relates to Article 6 § 1 and Article 7 of the Convention. Alleged violation of Article 5 § 1 of the Convention 38.     The applicant also complained that his detention, at least any part exceeding thirty years’ imprisonment, could not be lawful as required by Article 5 § 1 of the Convention, the relevant parts of which provide as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; ....” 39.     The parties reiterated their arguments. 40.     The general principles on the “lawfulness” of detention for the purposes of Article 5 § 1 of the Convention are set out in Selahattin Demirtaş v.   Turkey (no. 2) ([GC], no. 14305/17, §§ 311-13, 22 December 2020; see also Sy v. Italy , no. 11791/20, § 93, 24 January 2022). 41 .     The Court notes at the outset that the applicant was placed in detention on 31 March 1999, and that accordingly, his term of thirty years’ imprisonment will expire on 31   March 2029. 42.     According to the documents submitted, the applicant’s deprivation of liberty was a result of the Reggio Calabria Assize Court’s first-instance judgment of 19 January 1999, that is, a “conviction by a competent court” within the meaning of Article 5 § 1 (a) of the Convention (see Wemhoff v.   Germany , 27   June 1968, p. 23, § 9, Series A no. 7; Del Río Prada v. Spain [GC], no.   42750/09, §§ 123-24, ECHR 2013; and Sy , cited above, § 102 ). 43.     The Court considers that the applicant’s detention had a lawful basis in domestic law, and the fact that the sentence imposed on him was subsequently reduced from life imprisonment to thirty years’ imprisonment is not in itself sufficient to retrospectively affect the validity of the intervening period of detention, given that it has not exceeded the term of thirty years, corresponding to the reduced sentence within the summary procedure (see paragraph 7 above; see, mutatis mutandis , Marturana v. Italy , no. 63154/00, § 78, 4 March 2008, and Liu v. Russia , no. 42086/05, § 79, 6 December 2007). 44.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3   (a) and   4 of the Convention. For these reasons, the Court, unanimously, 1.     Decides to strike the application out of its list of cases in so far as it relates to the complaints under Article 6 § 1 and Article 7 of the Convention; 2.     Declares the remainder of the application inadmissible. Done in English and notified in writing on 30 November 2023.     Liv Tigerstedt   Marko Bošnjak   Deputy Registrar   President