Can the effects of an ECtHR’s judgment be extended? The answer of the Italian courts as to the guarantees of criminal trial

Introduction

Under Article 46, paragraph 1, of the European Convention on Human Rights (‘ECHR’), “the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties”. According to the European Court of Human Rights (‘ECtHR’), this provision implies that “a judgment in which the Court finds a violation imposes on the respondent State a legal obligation (…) to choose (…) the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects”.[1] Thus, judgments issued by the ECtHR may require the interested State to adopt measures which go beyond the scope of the concrete case under review.

This interpretation of the provision is in line with the role of the ECtHR, a court whose task is not limited to solving disputes between parties but extends to the safeguard of general interests.[2] At domestic level it may raise the issue of whether and, in the affirmative, how, the effects of a judgment finding a violation of the Convention should be extended to other cases.

The present post analyses how the Italian system deals with this issue, with specific reference to the ECtHR’s judgments finding violations of the guarantees of criminal trial. First, it recalls the remedies developed by Italian courts to enforce the ECtHR’s judgments; then, it describes how these remedies are applied to extend the effects of an ECtHR’s judgment to other cases. It will be argued that the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases.

The enforcement of ECtHR’s judgments

The Italian legislator has not yet dealt with the enforcement of ECtHR’s judgments finding violations of the guarantees of criminal trial comprehensively.[3] Thus, the enforcement of these judgments is mostly left to the interpretative efforts of the Italian courts, which, as described in a previous post, have relied on different solutions.

The Italian Court of Cassation has applied analogically two sets of procedural remedies: the “ricorso straordinario per errore materiale o di fatto”, an extraordinary appeal to correct material errors contained in the Court of Cassation’s judgments, under article 625bis Code of Criminal Procedure (‘CPP’);[4] and the “incidente d’esecuzione” procedure, providing remedies to deal with issues arising in the execution of a sentence, under articles 666 and following CPP.[5] In 2011 the Constitutional Court has added a further remedy, by declaring the partial unconstitutionality of article 630 CPP, insofar as it did not include ECtHR judgments finding a violation of criminal guarantees among the exceptional circumstances allowing the review of a final conviction.[6]

Therefore, the Italian system counts three different options to implement the ECtHR’s judgments finding violations of the guarantees of criminal trial and apply them to a case: the “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP; the “incidente d’esecuzione” procedure under articles 666 and following CPP; the exceptional review of a final conviction under article 630 CPP.

The extension of ECtHR’s judgments to other cases

The issue of whether and how an ECtHR’s judgment finding violations of the guarantees of criminal trial may be extended to other cases was first examined by the Italian courts following the case of Scoppola v Italy (n.2).[7] The case originated in some amendments to the provision regulating the reduction of a life sentence, following trial under summary procedure. The ECtHR found a violation of the principle of legality in criminal law (Article 7 ECHR), as Italy failed to apply retroactively the more lenient law to Mr Scoppola.

The decision was implemented in Mr Scoppola’s case through the “ricorso straordinario per errore materiale o di fatto”.[8] With regard to individuals in similar positions, the Italian Government adopted a quite simplistic view, recalling “the possibilities offered by the procedure of incidente d’esecuzione to those in the same situation as the applicant in this case”.[9] However, the Court of Cassation had to intervene, following the refusal by a lower court to extend the effects of the Scoppola judgment through the “incidente d’esecuzione” procedure.

On that occasion, the Court of Cassation stated that the conclusions reached in Scoppola have general nature, and that the effects of a judgment finding a general and objective violation of the Convention should be extended to identical cases, notwithstanding the existence of a final domestic decision which would normally prevent reconsideration of the case.[10] The acknowledgment of limits to the res judicata principle, on the ground of an ECtHR judgment issued in a case other than the one under review, was in itself innovative.[11] Furthermore, the Court of Cassation deferred a question of constitutionality to the Constitutional Court, which took this opportunity to clarify that the “incidente d’esecuzione” procedure can be used when the issue at stake is a mere redetermination of the sentence to be imposed, whereas the exceptional review under article 630 CPP concerns trials that must be reopened.[12]

The distinction between these remedies and the “ricorso straordinario per errore materiale o di fatto” was the object of further examination by the Court of Cassation, following the case of Contrada v Italy (n. 3).[13] The case originated in the introduction, by way of interpretation, of a new crime. The ECtHR found a violation of the principle of legality in the case of Mr Contrada, because he had been tried and found guilty for facts committed before the moment in which the case law introducing the new crime had settled: which is to say, at a time when the crime was not yet clearly foreseeable.

Following this judgment, the Court of Cassation was confronted with appeals by individuals claiming to be in the same situation as Mr Contrada, and asking for an extension of the effects of the judgment to their cases.[14] In the first case, Mr Dell’Utri, an Italian politician, requested the annulment of his final sentence by way of “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP. The Court of Cassation declared the remedy not applicable, underlying that -unlike the two previous cases in which this remedy had been used-[15] Mr Dell’Utri had no ECtHR’s judgment in his favour, nor had he asked for a mere modification of his conviction.[16] Mr Dell’Utri then applied for revocation or non-execution of his sentence, under articles 673 and 670 CPP. Both remedies operate in the executive phase of the judgment, and are thus species of the wider genus “incidente d’esecuzione”. The Court of Cassation recalled the judgment issued by the Constitutional Court in the post-Scoppola cases and clarified that, after 2011, the exceptional review introduced by way of interpretation under article 630 CPP has become the “ordinary” remedy to enforce ECtHR judgments.[17] This remedy may be applied not only to enforce a judgment in the specific case under the ECtHR’s review, but also to extend the effects of such judgments to similar cases; and not only for violations of Article 6 ECHR, but also when violations of Article 7 ECHR are at stake.[18] The “incidente d’esecuzione” procedure, to the contrary, may be used as a “residual” remedy only upon three conditions: that the ECtHR’s judgment has general nature; that the case at stake is identical to the one decided by the ECtHR; that execution does not require a previous declaration of unconstitutionality or any discretional evaluations by the execution judge.[19] Having assessed that in the case of Mr Dell’Utri these conditions were not met, the Court rejected his application.[20]

In the second and most recent case, the Court of Cassation recalled and fully endorsed these conclusions about the ambit of application of the “incidente d’esecuzione” procedure and of the exceptional review under article 630 CPP.[21]

Interestingly enough, in the lapse of time between these two judgments, a different section of the Court of Cassation rejected a request for extraordinary review lodged under article 630 CPP.[22] The refusal was grounded on the fact that the applicant was not directly interested by the ECtHR judgment of which he had asked enforcement, thus contradicting the Court of Cassation’s position developed since 2011 in the post-Scoppola cases, and reaffirmed in the post-Contrada ones.[23] As for now, the judgment remains a unicum in the case law of the Court of Cassation: however, it certainly demonstrates how a jurisprudential solution may be subject to revirements.

Final remarks

In the Italian legal system, the absence of a comprehensive legislative intervention on the enforcement of ECtHR judgments finding violations of the guarantees of criminal trial has led domestic courts to intervene. Procedural remedies are applied analogically (“ricorso straordinario per errore materiale o di fatto” under article 625bis Code of Criminal Procedure; “incidente d’esecuzione” procedure under articles 666 and following CPP), and a general remedy has been introduced (exceptional review of a final conviction under article 630 CPP).

The most recent developments of the Italian case law deal with the issue of how to extend the effects of an ECtHR judgment to cases other than the one under the ECtHR’s review. In the absence of any organic stance by the executive or by the legislative power, cooperation between higher courts seems to have led to a solution. According to a set of judgments by the Court of Cassation and the Constitutional Court, the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases. The “incidente d’esecuzione” procedure, instead, represents a residual solution which may be used when the effects of the ECtHR’s judgments pertain exclusively to the execution phase and do not require the use of any discretional power by the judge.

Doubts have been cast on this conclusion by a recent conflicting judgment of the Court of Cassation, which, however, remains so far isolated. In any case, it must be pointed out that only a comprehensive legislative intervention could solve, once and for all, the issues of enforcement of the ECtHR’s judgments in the Italian system.

 

 

 

[1] Inter alia: Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006‑II.

[2] Under Article 19 of the Convention, the Court’s task is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols”. On Article 49 ECHR: S.Bartole, P. DeSena, V. Zagrebelsky, Commentario breve alla convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, CEDAM Padova 2012, pp. 749 ff.

[3] Currently, the only legislative intervention has been the one allowing the reopening of proceedings celebrated in absentia, introduced by law 67/2014 with the specific aim of bringing the system in compliance with the numerous findings of violation by the ECtHR. On this topic, see: G. Di Paolo, La Rescissione Del Giudicato Ex Art. 625-Ter C.P.P.: Rimedio Effettivo O Meccanismo Virtuale?, Penale Contemporano 2015.

[4] E.g.: Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457.

[5] E.g.: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447. On this remedies in Italian criminal procedure: G. Lattanzi, E. Lupo, Codice di procedura penale: rassegna di giurisprudenza e di dottrina, VII / VIII, Giuffré Milano 2013.

[6] C Cost, sent n 113/2011.

[7] Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009.

[8] Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[9] CM/ResDH(2011)66.

[10] Cass. pen., Sez. Un., ord. 19 aprile 2012 (dep. 10 settembre 2012), n. 34472, Pres. Lupo, Est. Milo, Imp. Ercolano.

[11] A wide number of commentaries is available on this judgment. By way of example, see: F. Viganò, Pena illegittima e giudicato. Riflessioni in margine alla pronuncia delle Sezioni Unite che chiude la saga dei “fratelli minori” di Scoppola, Penale Contemporaneo, 1/2014.

[12] C Cost, sent n. 210/2013.

[13] Contrada v. Italy (no. 3), no. 66655/13, 14 April 2015.

[14] The follow-up cases of the Contrada judgment have encouraged a wide scholarly debate. See, by way of example: F. Viganò, Il caso Contrada e i tormenti dei giudici italiani: sulle prime ricadute interne di una scomoda sentenza della Corte EDU, Penale Contemporaneo, 26.4.2016; A. Manna, La sentenza Contrada e i suoi effetti sull’ordinamento italiano: doppio vulnus alla legalità penale?, Penale Contemporaneo, 4.10.2016.

[15] Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457; Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[16] Cass., sez. V pen., sent. 14 marzo 2016 (dep. 8 luglio 2016), n. 28676/16, Pres. Bruno, Rel. Catena, Ric. Dell’Utri.

[17] Cass., sez. I pen., sent. 11 ottobre 2016 (dep. 18 ottobre 2016), n. 44193/16, Pres. Mazzei, Rel. Magi, Ric. Dell’Utri, p. 29.

[18] Ibid, p. 27.

[19] Ibid, p. 30.

[20] Ibid, pp. 35-40.

[21] Cass., Sez. I, sent. 10 aprile 2017 (dep. 27 novembre 2017), n. 53610, Pres. Mazzei, Rel. Rocchi, Ric. Gorgone.

[22] Cass. pen., sez. II, sentenza 20 giugno 2017 (dep. 7 settembre 2017), n. 40889, Pres. Fiandanese, rel. Recchione, ric. Cariolo.

[23] For a critical commentary of this decision: S. Bernardi, La Suprema Corte torna sui limiti di operabilità dello strumento della “revisione europea”: esclusa l’estensibilità ai “fratelli minori” del ricorrente vittorioso a Strasburgo, Penale Contemporaneo, 26.9.2017

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