GRAND CHAMBER

CASE OF SCOPPOLA v. ITALY (No. 2)

(Application no. 10249/03)

JUDGMENT

STRASBOURG 

17 September 2009

This judgment is final but may be subject to editorial revision.

In the case of Scoppola v. Italy (no. 2),

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Jean-Paul Costa, President,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Ireneu Cabral Barreto,
Rait Maruste,
Alvina Gyulumyan,
Danutė Jočienė,
Ján Šikuta,
Dragoljub Popović,
Mark Villiger,
Giorgio Malinverni,
George Nicolaou,
András Sajó,
Mirjana Lazarova Trajkovska, judges,
Vitaliano Esposito, ad hoc judge,
and Michael O'Boyle, Deputy Registrar,

Having deliberated in private on 7 January and 8 July 2009,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

1. The case originated in an application (no. 10249/03) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Franco Scoppola (“the applicant”), on 24 March 2003.

2. The applicant was represented by Mr N. Paoletti, Mrs A. Mari and Mrs G. Paoletti, lawyers practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora and their co-deputy Agent, Mr N. Lettieri.

3. The applicant alleged in particular that his sentence to life imprisonment had breached Articles 6 and 7 of the Convention.

4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 13 May 2008 it was declared partly admissible by a Chamber of that Section composed of the following judges: Françoise Tulkens, Antonella Mularoni, Ireneu Cabral Barreto, Danutė Jočienė, Dragoljub Popović, András Sajó and Vitaliano Esposito, and also of Sally Dollé, Section Registrar. On 2 September 2008 the Chamber relinquished jurisdiction in favour of the Grand Chamber. The applicant did not object to relinquishment; after having made such an objection, the Government withdrew it (Article 30 of the Convention and Rule 72).

5. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. Following the withdrawal of Vladimiro Zagrebelsky, the judge elected in respect of Italy, the Government appointed Vitaliano Esposito to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

6. The applicant and the Government each filed a memorial on the merits.

7. A hearing took place in public in the Human Rights Building, Strasbourg, on 7 January 2009 (Rule 59 § 3).

There appeared before the Court:

(a) for the Government
MrN. Lettieri, of the State legal service,Agent;

(b) for the applicant
MrN. Paoletti, lawyer,
MrsA. Mari, lawyer,Counsel,
MrsG. Paoletti, lawyer, Adviser.

The Court heard addresses by Mr Paoletti, Mr Lettieri and Mrs Mari, and their replies to questions from the Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

8. The applicant was born in 1940 and is at present imprisoned in Parma.

9. On 2 September 1999, after a fight with his two sons, the applicant killed his wife and injured one of his sons. He was arrested on 3 September.

10. At the end of the preliminary investigation the Rome prosecution service 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

11. At a hearing on 18 February 2000 before the Rome preliminary hearings judge (giudice dell'udienza preliminare – “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. 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. (see paragraph 29 below).

12. The GUP agreed to follow the summary procedure. Further hearings were held on 22 September and 24 November 2000. The last-mentioned hearing began at 10.19 a.m.

13. 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 applicant had elected to stand trial under the summary procedure, the judge sentenced him to a term of 30 years.

14. On 12 January 2001 the Public Prosecutor's Office at the Rome Court of Appeal appealed on points of law against the Rome GUP's judgment of 24 November 2000. The prosecution argued that the GUP should have applied Article 7 of Legislative Decree no. 341 of 24 November 2000, which entered into force on the very day when the applicant was convicted. After being amended by parliament, Legislative Decree no. 341 was converted into Law no. 4 of 19 January 2001.

15. The prosecution contended in particular that Article 7 of Legislative Decree no. 341 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” (concorso di reati) or a “continuous offence” (reato continuato – see paragraph 31 below). The GUP's failure to apply Legislative Decree no. 341 amounted to “a manifest error of law” (evidente errore di diritto).

16. On 5 and 22 February 2001 the applicant appealed. His chief submission was that he should be acquitted on the ground that his conduct had not been intentional or that, at the time when the offences were committed, he was incapable of understanding the wrongful nature of his acts and of forming the intent to commit them (incapacità de intendere e volere). In the alternative, he requested a reduction of his sentence.

17. As there were now two appeals, at two different levels of jurisdiction, the Public Prosecutor's appeal on points of law was changed to an appeal on both facts and law and the Rome Assize Court of Appeal was declared to have jurisdiction to hear the case (Article 580 of the CCP).

18. The hearing in private before the Rome Assize Court of Appeal was held on 10 January 2002. The applicant was not present and was tried in absentia. He alleged that, as he had difficulty in walking, he had asked to be taken to the courtroom by ambulance or some other suitably adapted vehicle but that, as the prison management had refused his request, he had been deprived of the possibility of participating in the appeal proceedings.

19. In a judgment of 10 January 2002, deposited with the registry on 23 January 2002, the Assize Court of Appeal sentenced the applicant to life imprisonment.

20. It observed that before the entry into force of Legislative Decree no. 341 Article 442 § 2 of the CCP had been interpreted to mean that life imprisonment was to be replaced by a term of thirty years, whether or not it was to be accompanied by daytime isolation on account of an accumulation of offences with the most serious one. In following that approach, the GUP had fixed the sentence in relation to the most serious offence, without considering whether to order the applicant's daytime isolation on account of his conviction on the other charges against him.

21. However, Legislative Decree no. 341 of 24 November 2000 had entered into force on the very day of the GUP's decision. As its provisions were classed as procedural rules, it was applicable to pending proceedings, according to the tempus regit actum principle. The Assize Court of Appeal further observed that under the terms of Article 8 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 on penalties which had taken place in the meantime.

22. On 18 February 2002 the applicant appealed on points of law. He argued in the first place that the appeal proceedings should be declared null and void because he had not been able to participate, as defendant, in the appeal hearing on 10 January 2002. In his second and third grounds of appeal the applicant asserted that the trial courts had not given sufficient reasons either for ruling that he had intended to commit murder or for their finding that he knew what he was doing and had acted intentionally when committing the offences. Lastly, he contested the finding of an aggravating circumstance (that he had acted for futile reasons) and complained of the refusal to grant him extenuating circumstances.

23. On 31 July 2002 the applicant submitted further grounds of appeal. He contended that a fresh expert opinion should have been produced on his mental state at the time when the offences were committed and presented new arguments on the question of aggravating and extenuating circumstances. Lastly, he submitted that the penalty deemed to be applicable in his case (life imprisonment with isolation) was excessive.

24. In a judgment deposited with its registry on 20 January 2003, the Court of Cassation dismissed the applicant's appeal.

25. On 18 July 2003 the applicant lodged an extraordinary appeal on the ground of a factual error (Article 625a of the CCP). He asserted in the first place that the domestic courts' finding that he could have been taken to the appeal hearing by an ordinary means of transport and did not need an ambulance had been the result of an erroneous reading of the documents in the file. In addition, his absence, as the defendant, from that hearing had breached Article 6 of the Convention. The applicant further alleged that the sentence of life imprisonment imposed on him following the changes made by Legislative Decree no. 341 of 2000, and thus through a retrospective criminal-law provision, had breached Article 7 of the Convention and the principles of fair trial. He submitted that his waiver of procedural safeguards as a result of electing to stand trial under the summary procedure had not been compensated for by the reduction of his sentence promised by the State at the time when he made that choice. Lastly, he maintained that life imprisonment was an inhuman and degrading punishment and as such contrary to Article 3 of the Convention.

26. In a judgment of 14 May 2004, deposited with its registry on 28 October 2004, the Court of Cassation declared the applicant's extraordinary appeal inadmissible. It observed that he was not complaining of factual errors committed by the domestic courts but essentially attempting to challenge the Court of Cassation's assessment on points of law.

II. RELEVANT DOMESTIC LAW

A. The summary procedure

27. The summary procedure is governed by Articles 438 and 441 to 443 of the CCP. It is based on the assumption that the case can be decided as the file stands (allo stato degli atti) at the preliminary hearing. A request to be tried under the summary procedure may be made orally or in writing at any time before the parties have made their submissions at the preliminary hearing. If the summary procedure is followed, the hearing takes place in private and is given over to the parties' oral submissions; in principle, they must base their arguments on the documents included in the prosecution's file, even though, exceptionally, oral evidence may be allowed. If the judge finds the defendant guilty, the sentence imposed is reduced by one-third (Article 442 § 2). The relevant domestic provisions are described in the Hermi v. Italy judgment ([GC], no. 18114/02, §§ 27-28, ECHR 2006-...).

28. The Court also gave an overview of the provisions governing the summary procedure in its Fera v. Italy judgment (no. 45057/98, 21 April 2005). At the time of the events which gave rise to the Fera case the summary procedure was not available to persons accused of crimes punishable by life imprisonment. In judgment no. 176 of 23 April 1991 the Constitutional Court had quashed the provision of the Code of Criminal Procedure making that possibility available because it went beyond the powers parliament had delegated to the government with a view to the adoption of the new Code of Criminal Procedure (“the CCP”).

B. The amendment of Article 442 of the CPP by Law no. 479 of 16 December 1999

29. By Law no. 479 of 16 December 1999, which came into force on 2 January 2000, parliament reintroduced the possibility of allowing a defendant liable to a sentence of life imprisonment to opt for the summary procedure. Section 30 provides:

Section 30

“The following changes shall be made to Article 442 of the Code of Criminal Procedure:

...

(b) in paragraph 2, after the first sentence is added the following [second and last sentence]: 'life imprisonment shall be replaced by thirty years' imprisonment'”.

C. Legislative Decree no. 341 of 24 November 2000

30. Legislative Decree no. 341 of 24 November 2000, which came into force on the same day and was converted into Law no. 4 of 19 January 2001, purported to give an authentic interpretation of the second sentence of paragraph 2 of Article 442 of the CCP and added a third sentence.

31. Legislative Decree no. 341 included, under the chapter entitled “Authentic interpretation of Article 442 paragraph 2 of the Code of Criminal Procedure and provisions regarding the summary procedure in trials for offences punishable by life imprisonment”, Articles 7 and 8, which provide:

Article 7

“1. In Article 442, paragraph 2, [second and] last sentence, of the Code of Criminal Procedure, the words 'life imprisonment' should be taken to mean life imprisonment without daytime isolation.

2. In Article 442, paragraph 2, of the Code of Criminal Procedure is added, in fine, the following sentence: “Life imprisonment with daytime isolation, in the event of cumulative offences or a continuous offence, shall be replaced by life imprisonment.”

Article 8

“1. In criminal proceedings pending on the date of the entry into force of the present legislative decree, where the defendant is liable to or has been sentenced to life imprisonment with daytime isolation, and has opted for the summary procedure ..., he or she may withdraw his or her request within thirty days of the date on which the legislation implementing the present legislative decree enters into force. In that case, the proceedings shall be resumed under the ordinary procedure at the stage they had reached when the request was made. Any investigative findings which may have been reached may be used within the limits laid down by Article 511 of the Code of Criminal Procedure.

2. Where, on account of an appeal by the prosecution, it is possible to apply the provisions of Article 7, the accused may withdraw the request referred to in paragraph 1 within thirty days of the time when he or she learns of the appeal by the prosecution or, if such an appeal was lodged before the entry into force of the legislation to implement the present legislative decree, within thirty days' of the latter date. The provisions of the second and third sentences of paragraph 1 shall apply...”

D. Article 2 of the Criminal Code

32. Article 2 of the 1930 Criminal Code, entitled “Succession of criminal laws”, reads as follows:

“1. No one may be punished for an act which, under the law in force at the time when it was committed, was not an offence.

2. No one may be punished for an act which, under a subsequent law, does not constitute an offence; if the defendant has been sentenced, execution of his sentence and its criminal effects shall cease.

3. If the law in force at the time when the offence was committed and later [laws] differ, the law to be applied is the one whose provisions are most favourable to the defendant, except where a final sentence has already been imposed.

4. The provisions of the [two] preceding paragraphs shall not apply when the later laws are exceptional and temporary.

5. The provisions of the present article shall also apply where a legislative decree's conversion into statute-law is time barred [decadenza] or does not take place, and where a legislative decree has been converted into statute-law with amendments.”

E. Publication in the Official Gazette

33. Royal Decree no. 1252 of 7 June 1923 provides that the Official Gazette (Gazzetta ufficiale) is published by the Ministry of Justice. Article 2 of the decree reads as follows:

“Publication shall take place every working day during the hours of the afternoon (nelle ore pomeridiane).”

34. By judgment no. 132 of 19 May 1976 the Constitutional Court ruled that publication of a law in the Official Gazette was the “essential and decisive moment” among the steps taken to promulgate a legislative text. Moreover, the expression “publication in the Official Gazette” presupposed that the latter was placed in circulation and therefore accessible to the public. The Constitutional Court observed in particular: “[the terms] publication of laws 'in the' Official Gazette [could] only mean ... also publication 'of the' Official Gazette ...: otherwise there would be a negation of the very procedure of publishing laws, which, historically speaking, was designed to create an objective situation effectively permitting every individual to be aware of the acts in question (situazione oggettiva di effettiva conoscibilità, da parte di tutti, degli atti medesimi).”

III. INTERNATIONAL TEXTS AND DOCUMENTS

A. The United Nations Covenant on Civil and Political Rights

35. Article 15 of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations in Resolution 2200 A (XXI) of 16 December 1966, which entered into force on 23 March 1976, is worded as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”

B. The American Convention on Human Rights

36. Article 9 of the American Convention on Human Rights, which was adopted on 22 November 1969 at the Inter-American Specialised Conference on Human Rights and came into force on 18 July 1978, reads as follows:

“No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”

C. The European Union's Charter of Fundamental Rights and the case-law of the Court of Justice of the European Communities

37. At the European Council meeting in Nice on 7 December 2000 the European Commission, the European Parliament and the Council of the European Union proclaimed the Charter of Fundamental Rights of the European Union. Article 49 of the Charter, entitled “Principles of legality and proportionality of criminal offences and penalties” is worded as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed. If, subsequent to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles recognised by the community of nations.

3. The severity of penalties must not be disproportionate to the criminal offence.”

38. In the case of Berlusconi and Others, the Court of Justice of the European Communities held that the principle of the retroactive application of the more lenient penalty formed part of the constitutional traditions common to the member States (see the judgment of 3 May 2005 in joined cases C-387/02, C-391/02 and C-403/02). The relevant passages of the judgment (§§ 66 to 69) read as follows:

“66. Setting aside the applicability of Article 6 of the First Companies Directive to the failure to publish annual accounts, it should be noted that, under Article 2 of the Italian Criminal Code, which sets out the principle that the more lenient penalty should be applied retroactively, the new Articles 2621 and 2622 of the Italian Civil Code ought to be applied even if they entered into force only after the commission of the acts underlying the prosecutions brought in the cases in the main proceedings.

67. It must be pointed out in this regard that, according to settled case-law, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories (see, inter alia, Case C 112/00 Schmidberger [2003] ECR I 5659, paragraph 71 and the case-law there cited, and Joined Cases C 20/00 and C 64/00 Booker Aquaculture and Hydro Seafood [2003] ECR I 7411, paragraph 65 and the case-law there cited).

68. The principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the Member States.

69. It follows that this principle must be regarded as forming part of the general principles of Community law which national courts must respect when applying the national legislation adopted for the purpose of implementing Community law and, more particularly in the present cases, the directives on company law.”

39. The principles affirmed by the Court of Justice were repeated in a judgment of the Criminal Division of the French Court of Cassation given on 19 September 2007 (dismissal of appeal no. 06-85899). The relevant passages of the judgment read as follows:

“... in any event the general principles of Community law take precedence over national law. In a judgment of 3 May 2005 the Court of Justice of the European Communities observed that the principle of the retroactive application of the more lenient penalty forms part of the constitutional traditions common to the member States and it follows that the said principle must be considered one of the general principles of Community law which national courts must comply with when applying the national law adopted with a view to implementing Community law (paragraphs 68 and 69 of the judgment of 3 May 2005). In the present case, consequently, it was in breach of that principle taking precedence over national law that the Paris Court of Appeal sentenced [the accused] on the basis of a national law adopted with a view to implementing Community law, having unlawfully disregarded the principle of the retroactive application of the more lenient penalty.

... Article 15 of the International Covenant on Civil and Political Rights provides, without any exception, that where, subsequent to the commission of an offence, the law provides for the application of a more lenient penalty, the offender must be given the benefit thereof. That text takes precedence over French law by virtue of Article 55 of the Constitution of 4 October 1958. It follows that the Paris Court of Appeal could not disregard the new more lenient law on the sole ground that the later law had expressly excluded any retroactive effect in contravention of the principle laid down by the text referred to above. ...”

D. The statute of the International Criminal Court

40. Under the terms of Article 24 § 2 of the Statute of the International Criminal Court,

“In the event of a change in the law applicable to a given case prior to a final judgement, the law more favourable to the person being investigated, prosecuted or convicted shall apply.”

E. The case-law of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“the ICTY”)

41. In a judgment of 4 February 2005, given in the Dragan Nikolic case (no. IT-94-2-A), the Appeals Chamber of the ICTY held that the principle of the applicability of the more lenient criminal law (lex mitior) applied to its statute. The relevant parts of the judgment (§§ 79 to 86) read as follows:

“79. The Trial Chamber first considered whether the principle of lex mitior had been applicable in the former Yugoslavia and whether it was part of the law of the International Tribunal and then addressed the question of whether the lex mitior principle was applicable in the present case.

80. The contentious part of the Sentencing Judgement is the finding of the Trial Chamber that “the principle of lex mitior applies only to cases in which the commission of a criminal offence and the subsequent imposition of a penalty took place within one and the same jurisdiction” and that, because this Tribunal exercises a different jurisdiction from the national jurisdiction in which the crimes were committed, the principle does not apply. The Appeals Chamber notes that the question of the applicability of the principle is not one of jurisdiction, but rather one of whether differing criminal laws are relevant and applicable to the law governing the sentencing consideration of the International Tribunal.

81. The principle of lex mitior is understood to mean that, if the law relevant to the offence of the accused has been amended, the less severe law should be applied. It is an inherent element of this principle that the relevant law must be binding upon the court. Accused persons can only benefit from the more lenient sentence if the law is binding, since they only have a protected legal position when the sentencing range must be applied to them. The principle of lex mitior is thus only applicable if a law that binds the International Tribunal is subsequently changed to a more favourable law by which the International Tribunal is also obliged to abide.

82. The International Tribunal is clearly bound by its own Statute and Rules, and thus to the sentencing range of a term up to and including the remainder of the convicted person's life as provided for in Rule 101(A) of the Rules and Article 24(1) of the Statute. The Appeals Chamber notes that there has not been a change in the laws of the International Tribunal regarding sentencing ranges.

83. The sentencing range in the former Yugoslavia would be restricted to a fixed term of imprisonment. The Appeals Chamber notes that, since the establishment of the International Tribunal, an accused before it can receive a maximum sentence that is not limited to a fixed term of imprisonment.

84. The Appeals Chamber, however, reiterates its finding that the International Tribunal, having primacy, is not bound by the law or sentencing practice of the former Yugoslavia. It has merely to take it into consideration. Allowing the principle of lex mitior to be applied to sentences of the International Tribunal on the basis of changes in the laws of the former Yugoslavia would mean that the States of the former Yugoslavia have the power to undermine the sentencing discretion of the International Tribunal's judges. In passing a national law setting low maximum penalties for the crimes mentioned in Articles 2 to 5 of the International Tribunal's statute, States could then prevent their citizens from being properly sentenced by this Tribunal. This is not compatible with the International Tribunal's primacy enshrined in Article 9(2) of the Statute and its overall mandate.

85. In sum, properly understood, lex mitior applies to the Statute of the International Tribunal. Accordingly, if ever the sentencing powers conferred by the Statute were to be amended, the International Tribunal would have to apply the less severe penalty. So far as concerns the requirement of Article 24(1) that “the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia”, these words have to be construed in accordance with the principles of interpretation applicable to the Statute of which they form part. So construed, they refer to any pertinent laws of the former Yugoslavia which were in force at the time of commission of the crime in question; subsequent changes in those laws are not imported.

86. For the foregoing reasons, the fifth ground of appeal is dismissed.”

THE LAW

I. SCOPE OF THE CASE AND PRELIMINARY QUESTIONS RAISED BY THE GOVERNMENT

A. Whether the Court may examine the case under Article 6 of the Convention

1. The question raised by the Government

42. On a preliminary point, the Government contested the decision of 13 May 2008 in which the Court's Second Section declared admissible the complaint under Article 6 of the Convention. They observed that, previously, in its partial decision of 8 September 2005, the Court's Third section had rejected a complaint similar to the one examined under that provision. The relevant parts of the Third Section's reasoning read as follows:

“The applicant further alleged a two-fold violation of Article 6 of the Convention... He argued that the proceedings had been unfair because he had been sentenced under the summary procedure and in his absence.

As regards the first limb of the complaint, he noted that in consequence of choosing the summary procedure he had waived certain rights guaranteed by Article 6. He added, however, that his waiver had not been voluntary but had been conditioned by an agreement entered into with the sole purpose of securing a reduction of his sentence. He contended that the respondent State – which had been repeatedly found by the European Court to be in breach of the reasonable-time requirement – had introduced a system aimed at rewarding defendants who waived fundamental safeguards instead of reorganising the administration of justice.

The Court notes that it was the applicant himself who requested application of the summary procedure. Although opting for the summary procedure has the effect of weakening procedural safeguards, the applicant may waive the safeguards of the ordinary procedure provided that the waiver is unequivocal and that no. public-interest considerations militate against it (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000).

There is no doubt that the applicant was aware of the consequences of his request for application of the summary procedure and that he unequivocally waived the rights guaranteed under the ordinary procedure. The Court does not consider that the possibility of securing a reduction of his sentence meant that the applicant was forced to request application of the summary procedure. Furthermore, Article 8 of the 2000 legislative decree gave him the possibility of withdrawing his request to forgo the ordinary procedure. Lastly, there was no public-interest consideration which militated against such a waiver.

The Court therefore finds that this limb of the complaint is ill-founded.

...”

43. At the same time, the Third Section decided to give notice to the Government of the complaint concerning the applicant's life sentence, asking them a question relating to compliance with the principles set forth in Article 7 of the Convention (“Was the applicant sentenced, in breach of Article 7 of the Convention, to a heavier penalty than the one applicable at the time when the offence was committed?”). The operative part of the partial decision of 8 September 2005 reads as follows:

“For these reasons, the Court, unanimously,

Adjourns its examination of the applicant's complaint under Article 7 of the Convention;

Declares the remainder of the application inadmissible.”

44. However, in its final decision on admissibility of 13 May 2008 the Second Section said:

“The Court notes first of all that the applicant's complaints do not exclusively concern the alleged infringement of the nulla poena sine lege principle, as enshrined in Article 7 of the Convention, but also the question whether the provisions introduced by Legislative Decree no. 341 of 24 November 2000 infringed the principles of fair trial as guaranteed by Article 6 § 1 of the Convention. ...

The Court considers, in the light of all the arguments of the parties, that these complaints raise serious questions of fact and of law which cannot be settled at this stage of the examination of the application but require an examination of the merits; it follows that these complaints cannot be declared manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other ground of inadmissibility has been found.”

45. The Government argued that the two decisions cited above were in contradiction with each other in that the complaint under Article 6 about the fact that the applicant had been convicted under the summary procedure had been rejected by means of a decision against which no appeal lay, that being surely incompatible with the Court's intention to look into “the question whether the provisions introduced by Legislative Decree no. 341 of 24 November 2000 infringed the principles of fair trial”. Moreover, before the decision on admissibility no specific question relating to compliance with Article 6 of the Convention had been put to the Government by the Court's Registry, so that the Government had been prevented from submitting detailed observations on the admissibility and merits of the complaint in question.

46. In the light of the foregoing considerations, the Government submitted that the merits of the complaint relating to Article 6 of the Convention should not be examined.

2. The applicant's reply

47. The applicant rejected the Government's argument. He observed that the Court was master of the characterisation to be given in law to the facts and could decide to examine the complaints submitted to it under more than one of the Convention's provisions.

3. The Court's assessment

48. The Grand Chamber recalls first of all that the scope of its jurisdiction in cases submitted to it is limited only by the Chamber's decision on admissibility (see Perna v. Italy [GC], no. 48898/99, § 23, ECHR 2003-V, and Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III). Within the compass thus delimited, the Grand Chamber may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Philis v. Greece (no. 1), 27 August 1991, § 56, Series A no. 209, and Guerra and Others v. Italy, 19 February 1998, § 44 in fine, Reports of Judgments and Decisions 1998-I).

49. In its partial decision of 8 September 2005 on the admissibility of the application the Court's Third Section declared inadmissible three complaints under Article 6 of the Convention. These related in particular to:

(a) the fact that the applicant had been unable to meet his lawyer in the premises intended for that purpose;

(b) the fact that the applicant had not been able to take part in the appeal hearing; and

(c) the applicant's allegation that his choice of the summary procedure, entailing the waiver of certain procedural rights, had not been voluntary.

50. The Grand Chamber observes that none of the above complaints was ultimately declared admissible and that the Government's fears in that respect are unfounded. Those aspects of the applicant's right to a fair trial are therefore not part of the “case” submitted to it.

51. It should be noted, however, that the partial decision of 8 September 2005 also mentioned a fourth complaint under Article 6, concerning the fact that the applicant had been sentenced to life imprisonment. The Court's Third Section took the view that that complaint “relate[d] to the same matter as the complaint concerning Article 7 of the Convention and must therefore be examined under the latter provision”.

52. When notice of the application was given to the Government the parties were therefore asked to submit observations on whether the applicant's life sentence had breached Article 7 of the Convention. Subsequently, in the applicant's observations in reply to those of the Government, he put forward arguments relating to a violation of the principles of fair trial. In particular, he alleged that when he opted for the summary procedure he entered into an agreement with the State whereby he waived part of his procedural safeguards in exchange for the substitution of a thirty-year sentence for life imprisonment in the event of his conviction. He contended that the State's failure to honour that agreement had been incompatible with Article 6 of the Convention.

53. The Court observes that under the terms of Article 32 of the Convention its jurisdiction “[extends] to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34 and 47” and that “in the event of dispute as to whether the Court has jurisdiction”, the decision is a matter for the Court.

54. Since the Court is master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant or the Government. By virtue of the jura novit curia principle, it has, for example, considered of its own motion complaints under Articles or paragraphs not relied on by the parties and even under a provision in respect of which the Commission had declared the complaint to be inadmissible while declaring it admissible under a different one. A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 29, Series A no. 172, and Guerra and Others, cited above, § 44).

55. It follows that by taking the view that it was appropriate to examine whether the provisions introduced by Legislative Decree no. 341 of 24 November 2000 had also “infringed the principles of fair trial as guaranteed by Article 6 § 1 of the Convention”, the Court's Second Section did no more than use its right to characterise the applicant's complaint and to examine it under more than one Convention provision. Such a reclassification, which took into account, among other considerations, the applicant's new arguments, cannot be considered arbitrary. Moreover, given that the complaint concerning the applicant's life sentence was never rejected, it is not caught by the principle that a decision to declare a complaint inadmissible is final and that no appeal lies against it.

56. Lastly, with regard to the Government's argument that there had been a breach of the adversarial nature of the procedure before the Court (see paragraph 45 above), it should be noted that the applicant's observations and the final decision on admissibility were communicated to the Government. They therefore had the opportunity before the Grand Chamber to submit any argument to the effect that the complaint relating to Article 6 was inadmissible or ill-founded. In that connection, the Grand Chamber reiterates that even after a Chamber decision to declare a complaint admissible it may, where appropriate, examine issues relating to its admissibility, for example by virtue of Article 35 § 4 in fine of the Convention, which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”, or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage (see K. and T. v. Finland [GC], no. 25702/94, §§ 140-141, ECHR 2001-VII, and Perna, cited above, §§ 23-24). Thus, even at the merits stage, subject to Rule 55 of the Rules of Court, the Grand Chamber may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention (see Azinas, cited above, § 32).

57. It follows that there is no reason why the Grand Chamber should not examine the case submitted to it from the standpoint of Article 6 also. The Government's preliminary objection must therefore be rejected.

B. Whether the Court's Second Section was entitled to relinquish jurisdiction in favour of the Grand Chamber

58. The Government further submitted that the intention expressed by the Second Section on 13 May 2008 to relinquish jurisdiction in favour of the Grand Chamber was hard to reconcile with the adoption of a final decision on admissibility. In addition, they argued, that decision contradicted the partial decision and was capable of “prejudicing whatever view of the case the Grand Chamber might take”.

59. The Court observes that, under the terms of Article 30 of the Convention, “where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention ... the Chamber may, at any time before it has rendered its judgment, relinquish jurisdiction in favour of the Grand Chamber”. At the time when the Court's Second Section expressed its intention to relinquish jurisdiction in the present case it had not yet rendered its judgment. Moreover, it is not for the Grand Chamber to return to the issue whether the case raises a “serious question affecting the interpretation of the Convention”. In any event, it is hard to understand how the decision to declare the application admissible could “prejudice the assessment” of the Grand Chamber. In that connection, it should be pointed out that, as mentioned above, the Grand Chamber may examine issues relating to the admissibility of the complaints submitted to it (see paragraph 56 above). Lastly, if the Government were of the opinion that the proposal to relinquish jurisdiction was not correct, they could have objected by virtue of Article 30 in fine of the Convention. However, after lodging such an objection, they withdrew it of their own accord (see paragraph 4 in fine above).

60. In the light of the foregoing, the Court considers that the Second Section's decisions to declare the application admissible and to relinquish jurisdiction in favour of the Grand Chamber were adopted in accordance with the Convention and its Rules and do not prejudice the further examination of the case.

II. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

61. The applicant considered that his life sentence had breached Article 7 of the Convention, which provides:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

A. The Government's plea of non-exhaustion of domestic remedies

62. The Government repeated the objection of non-exhaustion of domestic remedies which they had raised before the Chamber. They alleged that in the Court of Cassation the applicant did not rely on the principle of non-retrospectiveness of the criminal law but merely asserted that the penalty applicable to the offences with which he had been charged was not life imprisonment.

1. The Chamber's decision

63. In its final decision of 13 May 2008 on the admissibility of the application, the Court's Second Section dismissed the Government's preliminary objection, observing that in his appeal on points of law the applicant had contended that the penalty of life imprisonment should not have been imposed on him; in addition, in his extraordinary appeal on the ground of factual error he had alleged that his sentence breached Articles 6 and 7 of the Convention. That being so, the Chamber ruled that the applicant had raised before the Court of Cassation, at least in substance, the complaints he intended to make subsequently at international level, and that he had made normal use of the remedies which he considered effective.

2. Arguments of the parties

(a) The Government

64. The Government observed in the first place that in its partial admissibility decision of 8 September 2005 the Third Section, when summarising the applicant's arguments regarding the alleged breach of Article 7 of the Convention, expressed itself as follows:

“After asserting that in his case the prosecution was not even empowered to appeal, because Article 443 of the Code of Criminal Procedure provided for such a possibility only in the event of a conviction by the preliminary investigations judge following an amendment of the charge, the applicant – who did not include this point in his grounds of appeal on points of law against the judgment of the Assize Court of Appeal – noted that ultimately he had been sentenced to a penalty which was not provided for at the time when he agreed to be tried under the summary procedure.”

65. In the Government's opinion, it was difficult to see how the applicant could have raised his complaint under Article 7 “at least in substance” if he had not presented any argument to the Court of Cassation concerning the imposition of a heavier penalty than the one provided for at the time when he agreed to stand trial under the summary procedure. In dismissing their plea of non-exhaustion the Second Section had therefore contradicted the Third Section's finding in its partial decision.

66. Moreover, the arguments put forward by the applicant in the Court of Cassation concerned the nature of the offences he had been charged with, the way the offences had been committed, aggravating or extenuating circumstances and the state of his physical and mental health. Those matters had nothing whatever to do with the allegedly unfair application of Legislative Decree no. 341 of 2000. The same applied to the extraordinary appeal on the ground of a factual error, which essentially concerned the alleged illegality of the decision to try the applicant in absentia in the appeal proceedings. On the other hand, he had neglected to rely in his submissions to the Court of Cassation on Article 2 § 3 of the Criminal Code, which provides that where there is a difference between the law in force at the time of the commission of an offence and later laws the law applied is the one most favourable to the accused (see paragraph 32 above).

(b) The applicant

67. The applicant agreed with the Chamber's decision.

3. The Court's assessment

(a) General principles

68. The Court reiterates that the purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among many other authorities, Remli v. France, 23 April 1996, § 33, Reports 1996-II, and Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule is based on the assumption, reflected in Article 13 of the Convention (with which it has a close affinity), that there is an effective domestic remedy available in respect of the alleged violation (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996-IV).

69. The rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. At the same time, it normally requires that the complaints intended to be made subsequently at the international level should have been aired before the appropriate national courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I, and Azinas, cited above, § 38).

70. However, the obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sofri and Others v. Italy (dec.), no. 37235/97, ECHR 2003-VIII). In particular, the only remedies which the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will