CEDH · PRESS;GCJUDGMENTS;ENG — 17 septembre 2009

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Italy (application no. 10249/03)   Violation of Articles 7 (no punishment without law) and 6 (right to a fair trial) of the European Convention on Human Rights     Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 10,000   euros   (EUR) in respect of non-pecuniary damage, and EUR   10,000 for costs and expenses. Under Article 46 (binding force and execution of judgments) the Court decided that the sentence of life imprisonment imposed on the applicant must be replaced by a penalty consistent with the principles set out in its judgment. (The judgment is available in English and French .)   Principal facts and procedure   Franco Scoppola is an Italian national who was born in 1940. He is currently in Parma Prison.   On 2 September 1999, after a fight with his children, the applicant killed his wife and injured one of the children. He was arrested on 3 September. At the end of the preliminary investigation the Rome prosecution office asked for the applicant to be committed to stand trial for murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm. At a hearing in February 2000 before the Rome preliminary hearings judge (“the GUP”) the applicant asked to be tried under the summary procedure, a simplified process which entailed a reduction of sentence in the event of conviction. The judge agreed to his request.   In the version in force at that time, Article 442 of the Code of Criminal Procedure (“the CCP”) provided that, if the judge considered that the penalty to be imposed was life imprisonment, such penalty should be converted into 30 years. On 24 November 2000 the GUP found the applicant guilty and noted that he was liable to a sentence of life imprisonment; however, as the trial had been conducted under the summary procedure, the judge sentenced the applicant to a term of 30 years.   However, Legislative Decree no. 341, which had entered into force that very day, had just amended Article 442 of the CCP. The latter now provided that in the event of trial under the summary procedure, life imprisonment was to be substituted for life imprisonment with daytime isolation if there were cumulative offences or a continuous offence.   The Public Prosecutor’s Office at the Rome Court of Appeal considered that, in view of the entry into force of the new version, the applicant’s sentence should have been life imprisonment rather than 30 years. Accordingly, it appealed against the GUP’s decision.   On 10 January 2002 the Rome Assize Court of Appeal sentenced Franco Scoppola to life imprisonment. Noting that Legislative Decree no. 341 of 2000 had entered into force on the very day of the GUP’s decision, it considered that, since its provisions were classed as procedural rules, they were applicable to all pending proceedings. The Assize Court of Appeal further observed that under the terms of Legislative Decree no. 341 the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure. As he had not done so, the first-instance decision ought to have taken account of the change in the rules introduced by the legislative decree.   After his appeal on points of law was dismissed, the applicant lodged an extraordinary appeal with the Court of Cassation on the ground of a factual error. He argued that he had been convicted in breach of the fair-trial principles guaranteed by Article 6 of the European Convention on Human Rights and on the basis of retrospective application of the criminal law – in the form of Legislative Decree no. 341 – in breach of Article 7 of the Convention. That appeal too was dismissed.   The application was lodged with the Court on 24 March 2003 and was declared partly admissible on 13 May 2008. On 2 September 2008 the Chamber to which the case had been assigned relinquished jurisdiction in favour of the Grand Chamber under Article 30 [1] of the Convention. A hearing was held in Strasbourg on 7 January 2009.   Decision of the Court   The applicant’s complaints related not only to the alleged retrospective application of criminal law in violation of Article 7 but also to the compatibility with Article 6 § 1 of the provisions introduced by Legislative Decree no. 341.   Article 7   The Court reiterated that the prohibition of the retrospective application of criminal law to the detriment of an accused, provided in Article 7 of the Convention, was an essential element of the rule of law and occupied a prominent place in the Convention system. Nevertheless, as the Court had consistently ruled since a 1978 decision of the European Commission of Human Rights, Article 7 did not guarantee the right of the accused to a more lenient penalty provided for in a law subsequent to the offence.   However, since the Convention was first and foremost a system for the protection of human rights, the Court had to consider the changing conditions in the responding State and in the Contracting States in general and respond to emerging consensus as to the standards to be achieved. It acknowledged that there had been important developments internationally. In particular, the principle of the applicability of the more lenient criminal law was enshrined in the American Convention on Human Rights, the European Union’s Charter of Fundamental Rights and the statute of the International Criminal Court. Moreover, the Luxembourg-based Court of Justice of the European Communities, whose decision was also endorsed by the French Court of Cassation, held that this principle formed part of the constitutional traditions common to the member States of the European Union.   The Court considered that since 1978 a consensus had gradually emerged in Europe and internationally around the view that application of a criminal law providing for a more lenient penalty, even one enacted after the commission of the offence, had become a fundamental principle of criminal law. In the light of such consensus the Court therefore decided to depart from its previous case-law and affirm that Article 7 § 1 guaranteed not only the principle of non-retroactivity of more stringent criminal laws but also, and implicitly, the principle of retroactivity of the more lenient law. That principle was embodied in the rule that where there were differences between the criminal law in force at the time of the commission of the offence and subsequent criminal laws enacted before adoption of a final judgment, the courts had to apply the law whose provisions were most favourable to the defendant.   In the applicant’s case, the Court considered that the relevant paragraph of Article 442 of the CPP was a provision of substantive criminal law given that it had set the length of the sentence to be imposed in the context of summary procedures. By virtue of the principle of retroactivity of the more lenient criminal law, of all the versions of such provisions which had been in force during the period between the commission of the offence and the adoption of the final judgment, the Italian courts should have applied the one more favourable to Mr Scoppola.   The Court therefore concluded, by eleven votes to six, that by failing to do so, the Italian courts had acted in violation of Article 7.   Article 6 § 1   The Court observed that the Italian summary procedure entailed undoubted advantages for the defendant but also a diminution of some of the procedural safeguards inherent in the concept of a fair trial. By requesting the summary procedure, Mr Scoppola, in exchange for a 30-year sentence instead of a life sentence, unequivocally waived his right to a public hearing, to have witnesses called, to have new evidence produced and to examine prosecution witnesses.   The Court considered that, although Contracting States were not required to adopt simplified procedures, where such procedures did exist it was contrary to the principle of legal certainty and the protection of the legitimate trust of persons engaged in judicial proceedings for a State to be able to reduce unilaterally the advantages attached to waiving fair trial safeguards. It therefore concluded, unanimously, that there had been a violation of Article 6 in this respect.     Judge Malinverni expressed a concurring opinion joined by judges Cabral Barreto and Šikuta. Judge Nicolaou expressed a partly dissenting opinion joined by Judges Bratza, Lorenzen, Jočiené, Villiger and Sajó. These opinions are annexed to the judgment.     ***   This press release is a document produced by the Registry; the summary it contains does not bind the Court. The judgment, with the composition of the Court, is accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) or Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77) Frédéric Dolt (telephone : 00 33 (0)3 90 21 53 39)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or the protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court, the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber, unless one of the parties to the case objects.