Information Note on the Court’s case-law No. 122

August-September 2009

Scoppola v. Italy (no. 2) [GC] - 10249/03

Judgment 17.9.2009 [GC]

Article 7

Article 7-1

Nulla poena sine lege

Implicit recognition by Article 7 of retroactivity of the more lenient criminal law: violation

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Statutory change depriving applicant of an advantage that had been instrumental in his choice of summary proceedings: violation

Facts – In 1999 the applicant killed his wife and injured one of his children. After an investigation the prosecution service requested that he be committed to stand trial on charges of murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm. At the time when the offences were committed they attracted a sentence of life imprisonment with daytime isolation. At the hearing before the preliminary hearings judge the applicant was granted his request to be tried under the summary procedure, a simplified process which entailed a reduction of sentence in the event of conviction. In the version in force at that time Article 442 § 2 of the Code of Criminal Procedure (“the CCP”) provided that, if the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence should be thirty years. The preliminary hearings judge found the applicant guilty and noted that he was accordingly liable to life imprisonment; however, as the applicant had opted for the summary procedure, the judge sentenced him to a term of thirty years. The Public Prosecutor’s Office at the Court of Appeal appealed on points of law against the preliminary hearings judge’s judgment, arguing that he should have applied Article 7 of Legislative Decree no. 341 of 24 November 2000, which had entered into force on the very day when the applicant was convicted. The prosecution contended in particular that the said Article 7 had amended Article 442 of the CCP and 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”. In 2002 the Assize Court of Appeal sentenced the applicant to life imprisonment, ruling firstly that the new procedural rule was applicable to all pending proceedings, and secondly that the applicant could have withdrawn his request to be tried under the summary procedure and have stood trial under the ordinary procedure. An appeal by the applicant on points of law was dismissed in 2003.

Law – Article 7: (a) Interpretation of Article 7 of the Convention in the Court’s case-law – In its X v. Germany decision (no. 7900/77, 6 March 1978) the European Commission of Human Rights had expressed the opinion that, unlike Article 15 § 1 in fine of the United Nations Covenant on Civil and Political Rights, Article 7 of the Convention did not guarantee the right to a more lenient penalty provided for in a law subsequent to the offence. Repeating that ruling, the Court had reiterated that Article 7 does not afford the right of an offender to application of a more favourable criminal law. However, 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 reaching that finding the Court referred to the American Convention on Human Rights, the European Union’s Charter of Fundamental Rights, the case-law of the Court of Justice of the European Communities, the Statute of the International Criminal Court and the case-law of the International Criminal Tribunal for the former Yugoslavia. It was also significant that the legislation of the respondent State had recognised that principle since 1930. In the Court’s opinion, it was consistent with the principle of the rule of law, of which Article 7 formed an essential part, to expect a trial court to apply to each punishable act the penalty which the legislator considered proportionate. Inflicting a heavier penalty for the sole reason that it was prescribed at the time of the commission of the offence would mean applying to the defendant’s detriment the rules governing the succession of criminal laws in time. In addition, it would amount to disregarding any legislative change favourable to the accused which might have come in before the conviction and continuing to impose penalties which the State – and the community it represented – now considered excessive. The Court noted that the obligation to apply, from among several criminal laws, the one whose provisions were the most favourable to the accused was a clarification of the rules on the succession of criminal laws, which was in accord with another essential element of Article 7, namely the foreseeability of penalties. The Court accordingly took the view that it was necessary to depart from the case-law established by the Commission in the case of X v. Germany and affirm that Article 7 § 1 of the Convention guaranteed not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal 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 a final judgment was rendered, the courts were required to apply the law whose provisions were most favourable to the defendant.

(b) Whether Article 442 of the CCP contained provisions of substantive criminal law – Article 442 was part of the CPP, whose provisions normally governed the procedure for the prosecution and trial of offenders. However, paragraph 2 of Article 442 was entirely concerned with the length of the sentence to be imposed after a trial conducted in accordance with the simplified procedure. In addition, there was no doubt that the penalties mentioned in Article 442 § 2 of the CCP were imposed following conviction for a criminal offence, that they were qualified as “criminal” in domestic law and that their purpose was both deterrent and punitive. Moreover, they constituted the “penalty” imposed for the acts with which the defendant was charged, and not measures concerning the “execution” or “enforcement” of that penalty. The Court therefore considered that Article 442 § 2 of the CCP was a provision of substantive criminal law concerning the length of the sentence to be imposed in the event of conviction following trial under the summary procedure. It therefore fell within the scope of the last sentence of Article 7 § 1 of the Convention.

(c) Whether the applicant was granted the benefit of the more lenient criminal law – The amendment of Article 442 of the CCP so as to provide that in the event of conviction following trial under the summary procedure, “life imprisonment [was to be] replaced by thirty years’ imprisonment” amounted to a subsequent criminal-law provision prescribing a more lenient penalty. Article 7 of the Convention, as interpreted by the Grand Chamber, therefore required the applicant to be granted the benefit thereof, and that was what had happened when the preliminary hearings judge sentenced the applicant to thirty years’ imprisonment. However, the application of Article 442 § 2 in favour of the accused had been set aside by the Rome Court of Appeal and the Court of Cassation. But, as amended, Article 442 of the CCP did not contain any particular ambiguity; it clearly stated that life imprisonment was to be replaced by thirty years’ imprisonment. Consequently, the applicant had been given a heavier sentence than the one prescribed by the law which was most favourable to him, and the respondent State had therefore failed to discharge its obligation to grant the applicant the benefit of the provision prescribing a more lenient penalty which had come into force after the commission of the offence.

Conclusion: violation (eleven votes to six).

Article 6: The applicant complained that although he had opted for a simplified trial – the summary procedure – he had been deprived of the most important advantage stemming from that choice under the law in force at the time when he had made it, namely the replacement of life imprisonment with a thirty-year sentence. The summary procedure provided for in the Italian Code of Criminal Procedure, which entailed undoubted advantages for the defendant, nevertheless also entailed a diminution of fundamental procedural safeguards. By requesting the adoption of the summary procedure the applicant – who was assisted by a lawyer of his choice, and was therefore in a position to ascertain what the consequences of his request would be – had to unequivocally waive his rights to a public hearing, to have witnesses called, to produce new evidence and to examine prosecution witnesses. He could therefore legitimately expect that, thanks to the procedural choice he had made, the maximum sentence to which he was liable was a term of imprisonment not exceeding thirty years. But that legitimate expectation on the applicant’s part was frustrated by Legislative Decree no. 341 of 2000, which provided that, where a judge considered that the appropriate sentence should be life imprisonment with daytime isolation, the penalty to be imposed should be life imprisonment without isolation. That change in the rules on fixing of sentence was applied, however, not only to defendants making new requests for trial under the summary procedure but also to persons who, like the applicant, had already made that request and stood trial at first instance before the publication of Legislative Decree no. 341 in the Official Gazette. 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 the waiver of certain rights inherent in the concept of fair trial. In the present case application of the provisions of Legislative Decree no. 341 after the end of the first-instance proceedings had deprived the applicant of an essential advantage which was guaranteed by law and which had prompted his decision to elect to stand trial under the summary procedure.

It remained to be determined whether the applicant’s right to withdraw his request for adoption of the summary procedure was capable of remedying the prejudice he had suffered. The Court observed that, if the applicant had withdrawn his request for adoption of the summary procedure, he would not have been able to compel the State to honour the agreement previously entered into. But it would be excessive to require a defendant to give up the possibility of a simplified procedure accepted by the authorities which had resulted at first instance in his obtaining the advantages he had hoped for, namely reduction of his sentence to thirty years’ imprisonment. Moreover, that legitimate expectation had been frustrated by factors beyond his control, such as the length of the domestic proceedings and the adoption of Legislative Decree no. 341 of 2000.

Conclusion: violation (unanimously).

Article 46: Having regard to the particular circumstances of the case and the urgent need to put an end to the breach of Articles 6 and 7 of the Convention, the Court considered that the respondent State was responsible for ensuring that the applicant’s sentence of life imprisonment was replaced by a penalty consistent with the principles set out in the judgment, namely a sentence not exceeding thirty years’ imprisonment.

Article 41: EUR 10,000 in respect of non-pecuniary damage.

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