CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 juin 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sB853CD26 { font-family:Arial; font-size:8pt }   Published on 8   July 2024   FIRST SECTION Application no.   27804/15 Edoardo RUBINO against Italy lodged on 4   June 2015 communicated on 18   June 2024 SUBJECT MATTER OF THE CASE The application concerns the foreseeability of the applicant’s conviction of obstruction of justice, provided for by Article   377 of the Criminal Code (“CC”) in conjunction with Article   372 of the CC. At the time of the facts (in 2006) and in so far as relevant, the offence provided for by Article   377 of the CC punished the conduct of offering money to subjects called to make statements before the judicial authorities to induce them to commit the offence of witness perjury, set out in Article   372 of the CC. The applicant was convicted for offering a sum of money to an expert appointed by the public prosecutor (“ consulente tecnico ”) in the context of a criminal investigation in which he was accused of manslaughter (plenary Court of Cassation judgment no.   51824 of 12   December 2014). The applicant complains under Article 7 of the Convention that the domestic courts proceeded to an interpretation by analogy which could not be foreseen at the time of the facts, in light of the wording of the relevant provisions, domestic case-law at the material time and doctrinal interpretation. In particular, he argues that his conviction under Article   377 of the CC was not foreseeable, as experts appointed by the public prosecutor could not be considered as “witnesses” under Article   372 of the CC (see Constitutional Court judgment no.   163 of 21   May 2014,   §   3, according to which “the plenary Court of Cassation offered an innovative solution, if compared to the previous case-law”; see also plenary Court of Cassation judgment no.   51824 of 12   December 2014). Moreover, according to well-established domestic case ‑ law, witness perjury could only be committed by subjects who had already been formally called to make statements before the judicial authorities, at the trial stage, and not during preliminary investigations (see, in particular, Court of Cassation judgment no.   4062 of 7   January 1999, Pizzicaroli , and plenary Court of Cassation judgment no.   37503 of 30   October 2002, Vanone ). More generally, the applicant points out that even the Constitutional Court, to which the case had been remitted, had acknowledged that the issue at stake in the present case derived from a lack of coordination between the Criminal Code and the Code of Criminal Procedure. In the applicant’s view, this had resulted in a gap in the legislation on offences such as obstruction of justice in relation to conducts such as those attributed to him (see Constitutional Court judgment no.   163, mentioned above,   §   2; see also plenary Court of Cassation judgment no.   51824 of 12   December 2014). QUESTION TO THE PARTIES Was the applicant’s conviction of “obstruction of justice” under Article   377 of the Criminal Code in compliance with Article   7 of the Convention? In particular, in light of the wording of the relevant provisions and of domestic practice (see, in particular, Court of Cassation judgments no.   4062 of 7   January 1999, Pizzicaroli , and no.   37503 of 30   October 2002, Vanone ; see also Constitutional Court judgment no.   163 of 21   May 2014) was the domestic courts’ interpretation to the effect that the acts attributed to the applicant could engage a criminal liability under Article   377 of the Criminal Code foreseeable (see   Dragotoniu and Militaru-Pidhorni   v. Romania , nos.   77193/01 and 77196/01,   §§   39-48, 24   May 2007; see also, mutatis   mutandis , Litschauer v.   the Republic of Moldova , no.   25092/15,   §   29-35, 13   November 2018)?   In answering the question, the parties are invited to provide an overview of relevant domestic case-law and doctrinal interpretation.