CEDH · CASELAW;CLIN;ENG — 15 décembre 2009

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Italy - 28634/06 Judgment 15.12.2009 [Section II] Article 2 Article 2-1 Life Effective investigation Responsibility of judiciary and prosecutors for a double murder committed by a dangerous offender on day release: violations   Facts – In 1976 one Mr Izzo was sentenced to life imprisonment for the abduction, rape and brutal abuse of two young women and the murder of one of them. In spite of his involvement in numerous incidents in prison, which led to further convictions, in November 2004 the sentence-execution court granted him day release. While on day release he planned and carried out the murder of two women (“the victims”) with the help of two accomplices. He was given a further life sentence. In May 2005 the Minister of Justice opened an administrative inquiry to determine whether, on account of the procedure which had led to Mr   Izzo being granted day release, the judges of the sentence-execution court were liable to disciplinary penalties. In March 2008 the National Council of the Judiciary issued the judges concerned with a reprimand. In September 2007 the applicants, who are relatives of the victims, filed a criminal complaint against the judges, but the proceedings were discontinued. Law – Article   2: (a)   Substantive aspect – At the time Mr   Izzo was granted day release it had not been possible to identify the two victims as potential targets of a lethal act on his part. The Court could not per se find fault with the arrangements in Italy for the rehabilitation of prisoners, as they afforded sufficient safeguards to ensure the protection of society. However, the question remained whether, in the particular circumstances of the case, the granting of day release to Mr   Izzo disclosed a breach of the duty of care imposed by Article   2 in this sphere. The Court could not overlook the various positive indicators which had led to the granting of measures to assist his rehabilitation, in particular the favourable reports by probation officers and psychiatrists. But those had been counterbalanced by many others that should have counselled greater prudence. After being sentenced to life imprisonment for an exceptionally brutal offence, Mr   Izzo’s behaviour had been far from exemplary. He had shown familiarity with weapons and a propensity to disobey both the law and orders from the authorities. The decision to proceed with the social rehabilitation of an offender such as Mr   Izzo had therefore been highly questionable. The Court attached considerable weight to his misconduct after he was granted day release and before he murdered the two victims. In particular, an informant in prison had told a local public prosecutor that Mr   Izzo was actively planning a murder and other serious offences. Subsequent investigations had shown that that information had not been considered unfounded. Mr   Izzo and his associates had been placed under close surveillance, which had revealed that Mr Izzo was breaching the conditions of his day release. That information represented a cause for great concern and should have been brought to the attention of the sentence-execution court. It had been for that court, not the public prosecutor, to assess whether Mr   Izzo’s conduct was serious enough to justify a disciplinary penalty or revocation of the order for day-release, having regard to the purpose of that measure as an alternative to imprisonment and balancing Mr   Izzo’s interest in his gradual social rehabilitation with the need to protect the community. Therefore, the granting of day release to Mr   Izzo, together with the failure to forward information to the sentence-execution court about his non-compliance with the conditions, had constituted a breach of the duty of care, arising from the obligation to protect life under Article   2. Accordingly, there had been a violation of Article   2 on account of the sentence-execution court’s decision and the failure to seek revocation of the order for day-release in the light of the information from the prison informant and the results of the police investigations. Conclusion : violation (unanimously). (b)     Procedural aspect – In January 2007, one year and eight months after the murders, Mr   Izzo was sentenced to life imprisonment and ordered to pay the applicants, as civil parties, an advance on the amount due in respect of non-pecuniary damage. In those circumstances, the Italian authorities had fulfilled their obligation under Article 2 to guarantee a criminal investigation. It remained to be determined whether the authorities were also under a positive obligation to secure the accountability of the State officials involved. Disciplinary proceedings had been opened against the judges of the sentence-execution court. These had led to a disciplinary penalty by the National Council of the Judiciary in the form of a reprimand. However, that decision had concerned only certain specific aspects of the case. In particular, the National Council of the Judiciary had not addressed the fact that neither the information provided by the prison informant nor the results of the police investigations had been used to consider the possible revocation of the order for day-release – a factor that the Court had found essential in its reasons for finding a substantive violation of Article   2. The applicants had filed a criminal complaint about that omission but it had not been followed up and no disciplinary proceedings had been brought against the authorities concerned. Therefore, the disciplinary proceedings brought by the Minister of Justice had not entirely fulfilled the State’s positive obligation to secure the accountability of its officials for their possible role in the matter. Conclusion : violation (unanimously). Article 41: EUR 10,000 awarded to the seventh applicant and EUR   5,000 to each of the other six applicants and jointly to the heirs of the eighth applicant, in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes