CEDH · PRESS;ADMISSIBILITYDECISIONS;ENG — 19 janvier 2010

.s800EAC49 { font-size:12pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s7ED160F0 { text-decoration:none } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sBB9EE52A { font-family:Arial } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sBA813D16 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0000ff } .sC800182F { font-family:Arial; color:#0000ff } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic }   037 19.01.2010   Press release issued by the Registrar   Admissibility decision   Previti (No2) v. Italy (application no. 45291/06)     APPLICANT’S COMPLAINT DECLARED INADMISSIBLE BECAUSE THE PROCEDURE IN WHICH HE WAS ACCUSED OF JUDICIAL BRIBERY WAS NOT UNFAIR     Principal facts   The applicant, Cesare Previti, is an Italian national who was born in 1934 and lives in Rome. At the relevant time he was a lawyer and a prominent figure in national politics.   In 1995, in the context of a widely-publicised case concerning the corporate control of a major chemicals group (the IMI/SIR case), the applicant was charged with judicial bribery, and in particular with having bribed a judge of the Rome Court of Appeal. In November 1999 he and seven co-accused were committed to stand trial before the Milan Criminal Court. On 28   January 2002 the court sentenced Mr Previti to 11 years’ imprisonment. The Milan Court of Appeal upheld the first-instance judgment but reduced the prison sentence to seven years.   On 4 May 2006, following appeals on point of law by the applicant and the public prosecutor’s office, the Court of Cassation found that one of the offences of which Mr Previti had been convicted had not been committed, and reduced the sentence to six years’ imprisonment. The applicant’s last appeal on points of law was dismissed. The Constitutional Court gave three decisions on various aspects of the applicant’s situation before the courts.   Complaints, procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 2 November 2006. Relying on Article 6 (right to a fair trial) of the European Convention on Human Rights, Mr   Previti complained about various aspects of the criminal proceedings against him. Under Article 7 (no punishment without law) taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention, he submitted that he had been convicted in respect of an act which had not constituted a criminal offence under domestic law at the time it was committed, and that he had not been granted the benefit of the more favourable provisions on limitation periods introduced by a new law while his trial was in progress. Relying on Article 8 (right to respect for private and family life), he complained of the fact that his telephone records had been produced before the courts. Lastly, he alleged a breach of Article 2 of Protocol No. 7 (right of appeal in criminal matters).   The decision was given on 8 December 2009 by a Chamber of seven judges composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işil Karakaş (Turkey), Kristina Pardalos (San Marino), judges ,   and also of Françoise Elens-Passos , Deputy Section Registrar .   Decision of the Court   Article 6   In Mr Previti’s submission, the criminal proceedings brought against him in the IMI/SIR case had been unfair for a number of reasons: his inability to gain access to certain documents, the fact that he had been absent from some of the hearings owing to his parliamentary commitments, the lack of clarity of the charges, the lack of jurisdiction of the Milan Criminal Court to try him, the arrangements for hearing evidence from one of the witnesses and, in particular, the alleged lack of impartiality of the courts.   The impartiality or otherwise of the judges, at both the investigation and the trial stage, had been a source of controversy throughout the domestic proceedings and the subject of continuing public debate in Italy. Mr Previti considered that his trial had been tainted by ideological prejudice because of his involvement in politics. He argued that left-wing elements in the Italian national legal service had publicly opposed draft legislation liable to have a favourable impact on his position before the courts. In addition, some of the members of the national legal service involved in the case had been left-wing or even extreme left ‑ wing activists and had repeatedly demonstrated their aversion to him.   The Court took the view that, while it would have been preferable for the members of the national legal service concerned to be more circumspect in their public comments, there was no proof of the existence of bias in relation to the applicant. Similarly, there was no proof that their ideological beliefs had prevailed over the oath of impartiality they had sworn on taking up office. The Court further considered that the fact that groups within the national legal service criticised draft legislation was not capable of adversely affecting the fairness of proceedings to which the measures laid down by that legislation might apply. It therefore rejected this complaint, and the applicant’s other complaints under Article 6, as manifestly ill ‑ founded.   Article 7   Judicial bribery was a specific criminal offence introduced under a 1990 law. Until 17 March 1992, owing to a technical defect in the drafting of the law, only the person who accepted the bribe could be convicted of the offence and not the person who had offered it. The latter could be convicted only of bribery, an offence which carried a lighter sentence. Mr   Previti argued that the instance of bribery of which he had been accused must logically have occurred well before 17 March 1992, since the judge who had allegedly been bribed had given judgment in the IMI/SIR case on 26 November 1990. Accordingly, his conviction should have been for bribery rather than judicial bribery.   The Italian Court of Cassation, however, while it accepted that the bribe must in principle have been arranged before the judicial act complained of, observed that the payments to the judge in question had continued until December 1993, thus causing the commission of the offence to be “brought forward in time”. In the Court’s view, this interpretation was neither arbitrary nor unreasonable. In addition, the applicant had not demonstrated that such an interpretation ran counter to well-established case-law and had been unforeseeable. This complaint was therefore manifestly ill-founded.   Mr Previti also complained that he had not benefited from the more favourable limitation periods introduced by a law enacted in 2005, while his case had been pending before the Court of Cassation. The Court noted that this complaint was essentially the same as that made by the applicant under Articles 6 and 13 in a previous application, which had been declared inadmissible on 12 April 2007. It therefore rejected it in accordance with Article 35 § 2 (b) of the Convention.   Article 8   The Court acknowledged that the obtaining of Mr Previti’s telephone records by the judicial authorities and their use in the criminal proceedings against him had amounted to interference with his right to respect for his private life. It further considered that the public prosecutor’s request to the telephone company had been vitiated by a formal defect as no adequate reasons had been given for it. However, the Milan Criminal Court had remedied that defect by setting aside the public prosecutor’s decision and making a new order for the telephone records to be produced. Furthermore, the court order had been governed by the legal provisions on telephone tapping, which had not been found to be in breach of the requirements of Article 8. Lastly, the telephone records had provided proof of the existence and frequency of contacts between some of the accused at the time the offences had been committed. Hence, obtaining them had helped to establish the facts in a criminal case and had thus been justified under Article 8. This complaint was therefore manifestly ill ‑ founded.   Article 2 of Protocol no. 7   Mr Previti submitted that he had not been afforded a right of appeal as the Court of Cassation, in its judgment of 4 May 2006, after partially quashing the judgment of the Milan Court of Appeal with regard to one of the charges, had decided on the sentence itself rather than referring the case back to a lower court.   In this connection the Court observed that in the context of Article 2 of Protocol No. 7 there was nothing to prevent the court of final instance from deciding on the length of the sentence if it was of the view, as in the present case, that the evidence in the file enabled it to assess the repercussions of partial quashing of a conviction in terms of the sentence to be imposed. It followed that this part of the application also had to be rejected as manifestly ill-founded.   ***   The decision is only available in French. This press release is a document produced by the Registry. It does not bind the Court. The decisions are available on its website ( http://www.echr.coe.int )   Press contacts Stefano Piedimonte (tel : + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel : + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel : + 33 (0)3 88 41 35 70) Céline Menu-Lange (tel : + 33 (0)3 90 21 58 77) Frédéric Dolt (tel : + 33 (0)3 90 21 53 39) Nina Salomon (tel + 33 (0)3 90 21 49 79)   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.