CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 14 novembre 2023

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D’Ascia; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the rejection of the applicants’ requests for a reduction of sentence from life imprisonment to thirty years’ imprisonment within proceedings for review of the enforcement order relating to their sentence ( incidente di esecuzione ). 2.     The applicants were all charged in separate sets of proceedings with crimes cumulatively punishable by life imprisonment with daytime isolation. The details concerning the facts of each application are set out in the appended table. 3.     The chronology of the domestic regulations and case-law governing the question of reduction of sentence following a trial under the summary procedure (a simplified process whereby a case can be decided as the file stands – allo stato degli atti – at the preliminary hearing) is summarised below. The domestic regulations and the applicants’ sentences to life imprisonment 4.     On 2 January 2000, Law no. 479 of 1999 entered into force, reinstating the possibility (previously denied) for defendants liable to a sentence of life imprisonment to be tried under the summary procedure. It provided that in the event of a conviction following trial under such a procedure, life imprisonment was to be replaced by thirty years’ imprisonment. 5.     The applicants subsequently asked to be tried under the summary procedure. 6.     On 24 November 2000, Decree-Law no. 341 of 2000 entered into force. Section 7 of the Decree-Law established 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 eligible for a reduction to thirty years’ imprisonment, while those liable to a sentence of life imprisonment with daytime isolation, such as the applicants, would only be eligible, in the event of trial under the summary procedure, for a reduction to life imprisonment without daytime isolation. 7.     Section 8 of Decree-Law no. 341 allowed defendants in ongoing proceedings to withdraw their requests to be tried under the summary procedure. 8.     The applicants accordingly withdrew their requests, were tried under the ordinary procedure, and were eventually sentenced to life imprisonment without daytime isolation. Their convictions became final on the dates indicated in the appended table. The judgment in Scoppola v. Italy (no. 2) 9.     In Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009), the Court concluded that Italy had failed to discharge its obligation to grant the applicant in that case, who had been tried under the summary procedure and sentenced to life imprisonment, the benefit of Law no. 479 of 1999 (which prescribed a more lenient penalty), in violation of Article 7 of the Convention. 10.     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. Domestic case-law following Scoppola v. Italy (no. 2) Plenary Court of Cassation, judgment no. 34233 of 19 April 2012 11 .     In a case known as Giannone , the plenary Court of Cassation decided that the lex mitior (that is, the law providing for a reduced sentence) was only applicable in cases where the accused was tried under the summary procedure following a request made during the period when Law no. 479 of 1999 had been in force (that is to say, between 2 January 2000 and 24 November 2000). Constitutional Court, judgment no. 210 of 3   July 2013 12 .     Within enforcement proceedings in a case known as Ercolano , the plenary Court of Cassation referred to the Constitutional Court the question of whether the retrospective application of section 7 of Decree-Law no. 341of 2000 was compatible with the Constitution, in the case of those who had made their request to be tried under the summary procedure while Law no. 479 of 1999 had been in force and had been sentenced afterwards. 13 .     By judgment no. 210 of 3 July 2013, published in the Official Gazette ( Gazzetta ufficiale ) on 24 July 2013, the Constitutional Court found that section 7 of Decree-Law no. 341 of 2000 was unconstitutional in that respect and that, should the conditions set forth by the plenary Court of Cassation (see paragraph 11 above) be met, a review of the enforcement order was the appropriate means of securing the benefit of the more lenient penalty of thirty years’ imprisonment. Plenary Court of Cassation, judgment no. 18821 of 7   May 2014 14.     Following the Constitutional Court’s judgment above, the plenary Court of Cassation, in the case of Ercolano , by judgment no. 18821 of 24   October 2013, deposited with the registry on 7 May 2014 and promptly published in all Italian legal journals, concluded that the defendant’s life sentence in that case (determined in accordance with section 7 of Decree-Law no.   341 of 2000) was to be replaced with thirty years’ imprisonment following an application for the review of the enforcement order. 15 .     While reiterating the principles expressed in Giannone (see paragraph 11 above), the Court of Cassation specified that those principles did not apply in situations where an accused had withdrawn his or her request for trial under the summary procedure, in accordance with section 8 of Decree-Law no.   341 of 2000. In those cases, it was not open to a defendant to seek a change in the final sentence by way of review of the enforcement order, as his or her withdrawal was a procedural choice “freely and knowingly made” whereby, opting for ordinary proceedings, the defendant could not obtain the benefit of the more favourable provisions of Law no. 479 of 1999. The applicants’ applications for review of the enforcement orders relating to their sentences 16.     The applicants subsequently instituted proceedings for the review of the enforcement orders relating to their sentences, requesting that their sentences be reduced to thirty years’ imprisonment, allegedly in line with the principles set out in Scoppola (no. 2) (cited above). 17.     The domestic courts rejected their applications. They based their decisions on, among other things, the above-mentioned Constitutional Court judgment no. 210 of 2013 and the plenary Court of Cassation’s judgments in the Giannone and Ercolano cases. The applicants’ complaints before the Court 18.     The applicants relied on Article 7 of the Convention, alleging that the domestic courts had failed to grant them the benefit of the provision prescribing a more lenient penalty, as set out in Scoppola (no. 2) (cited above). 19.     They also complained of a violation of Article 6 § 1 of the Convention, arguing that they had been essentially forced to give up their right to receive a lighter penalty under the summary procedure as a result of the entry into force of Decree-Law no. 341 of 2000, which had later been found to be in violation of the Convention. THE COURT’S ASSESSMENT Joinder of applications 20.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. Preliminary issue regarding application no. 50207/16 21.     The Court observes that Mr Capizzi (application no.   50207/16) died on 14 May 2019. His widow, Ms Serafina Bona, expressed her wish to continue the proceedings before the Court. 22.     The Court would point out that in a number of cases where an applicant has died during the proceedings, it has taken account of the wish expressed by heirs or close relatives to pursue the application (see López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §   72, 17   October 2019, with further references). 23.     In the present case, the Court notes that the Government did not submit any objection related to standing. In view of that, the Court will allow Mr   Capizzi’s widow to pursue the application. Admissibility of the applications 24.     The Government argued that the applications had been lodged outside the six-month time-limit, the applicants’ applications for review of their enforcement orders being an extraordinary remedy and thus not relevant for the purposes of Article 35 § 1 of the Convention. 25.     The applicants submitted in reply that the review of the enforcement orders relating to their sentences had been the only available remedy in their case. 26.     The Court reiterates that in assessing whether an applicant has complied with Article 35 § 1, the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period [1] are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, §   75, 5   July 2016). 27.     Where an applicant has tried to avail himself or herself of a remedy that the Court considers inappropriate, the time taken to do so will not interrupt the running of the six-month time-limit, and this may lead to the application being rejected as out of time (see Ulyanov v. Ukraine   (dec.), no.   16472/04 , 5 October 2010). 28.     In the present case, the Court observes that, by its judgment no.   210 of 3 July 2013, the Constitutional Court found that section 7 of Decree-Law no.   341 of 2000 was unconstitutional and that a review of the enforcement order was the appropriate means by which the benefit of the more lenient penalty of thirty years’ imprisonment could be granted to those who had made a request to be tried under the summary procedure while Law no. 479 of 1999 had been in force and had been sentenced afterwards (see paragraph   13 above). 29.     The Court nonetheless considers that at the latest from 7 May 2014, the date of the publication of the Court of Cassation’s judgment no. 18821 in the Ercolano case, which was promptly published in all Italian legal journals, it was clear that those who had withdrawn their request to be tried under the summary procedure could not obtain a reduction of sentence by way of an application for review of the enforcement order (see paragraph 15 above). 30.     The Court notes that the applicants lodged their applications for review of their enforcement orders between 25 June 2014 and 20   February 2017, that is, after publication of the Court of Cassation’s judgment in the Ercolano case. 31.     It follows that, in the circumstances of the present case, the remedy of an application for review of an enforcement order should not be considered for the purpose of calculating the six-month time-limit. Accordingly, the final domestic decisions to be taken into account to that effect pursuant to Article   35 §§ 1 and 4 of the Convention are the final judgments convicting the applicants. 32.     The Court refers to the dates on which the applicants’ convictions became final and to the dates on which the present applications were lodged with it, as specified in the appended table. 33.     Considering that all the applicants’ convictions became final more than six months before the dates on which they lodged the present applications, the Court concludes that their applications are out of time and must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 7   December 2023.     Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President Appendix No. Application no. Case name Date of introduction Applicant’s name Year of birth Place of detention   Name of representative Place of practice National proceedings on the merits Request for summary procedure National proceedings for the review of the enforcement order 1. 15061/16 Tuccio v. Italy 10/03/2016 Salvatore TUCCIO 1953 Sulmona   Antonino FIUMEFREDDO Catania Charges: murder, racketeering and other crimes relating to a mafia-type organisation   Catania Assize Court judgment of 18/07/1998, conviction   Catania Assize Court of Appeal judgment of 10/07/2001, conviction for murder and sentence of life imprisonment without daytime isolation.   Date of the final domestic decision: 14/11/2003 Request for summary procedure: 18/03/2000   Date of withdrawal of the request: 22/12/2000   Date of application for review: 25/06/2014   Catania Assize Court of Appeal, 27/11/2014, rejecting the application   Court of Cassation, 09/12/2015, declaring the appeal inadmissible 2. 50207/16 Capizzi v. Italy 18/08/2016 Simone CAPIZZI 1944 Deceased in 2019   Teodoro CALDARONE Marianna MONCADA Palermo Charges: multiple counts of murder and participation in a mafia-type association   Agrigento Assize Court, 18/07/2001, sentence of life imprisonment with daytime isolation   Date of the final domestic decision: 11/10/2004 Request for summary procedure: 16/06/2000   Date of withdrawal of the request: 27/12/2000   Date of application for review: 13/10/2014   Palermo Assize Court of Appeal, 27/01/2015, rejecting the application   Court of Cassation, 23/02/2016, rejecting the appeal on points of law 3. 9765/20 Muolo v. Italy 14/02/2020 Giuseppe MUOLO 1954 Asti   Luigi ESPOSITO Taranto Charges: multiple counts of murder and other charges in two joined proceedings   Bari Assize Court, 03/05/2002, sentence of life imprisonment with daytime isolation   Bari Assize Court of Appeal, 17/12/2003, partial acquittal   Court of Cassation. 02/12/2004, quashing and remitting the case to the lower court   Bari Assize Court of Appeal, 23/08/2006, conviction and sentence of life imprisonment with daytime isolation   Date of the final domestic decision: 24/05/2007 Request for summary procedure: 21/11/2000   Date of withdrawal of the request: 18/12/2000   Date of application for review: 20/02/2017   Lecce Court of Appeal, 05/02/2019, rejecting the application   Court of Cassation, 13/08/2019, appeal on points of law inadmissible   [1] .     Protocol No. 15 to the Convention has shortened to four months from the final domestic decision the time-limit provided for by Article 35 § 1 of the Convention. However, in the present case the six-month period still applies, given that the final domestic decisions were taken prior to 1 February 2022, date of entry into force of the new rule (pursuant to Article   8 §   3 of Protocol No. 15 to the Convention).