Published on 30 September 2024
FIRST SECTION
Application no. 3060/21
Torquato ALESSI
against Italy
lodged on 5 January 2021
communicated on 9 September 2024
SUBJECT MATTER OF THE CASE
The application concerns the alleged lack of legal basis and retrospective application of the penalty imposed on the applicant.
Pursuant to section 656 § 5 of the Code of Criminal Procedure (“the CCP”), the execution of a prison sentence up to three years of imprisonment can be suspended at certain conditions. In that case, the sentence can be served with measures alternative to full-time detention.
According to section 656 § 9 of the CCP, as amended by Law-Decree no. 78/2013, converted into Law no. 94/2013, a sentence cannot be suspended and access to alternative measures cannot be granted if a person has been convicted of aggravated stalking committed with a weapon, under section 612 bis § 3 of the Criminal Code (“the CC”).
The applicant was convicted to two years and one month of imprisonment for several offences committed in 2012, among which stalking under section 612 bis of the CC. Following the conviction, the domestic courts ordered the execution of the applicant’s prison sentence without possibility of suspension nor access to alternative measures, in application of section 656 § 9 of the CCP (see Court of Cassation’s judgment no. 6828 of 23 February 2021).
The applicant complains under Article 6 § 3 a) of the Convention that the penalty concretely applied to him lacked a sufficient legal basis as the domestic courts considered section 656 § 9 of the CCP applicable to his case, while he had not been convicted of aggravated stalking committed with a weapon.
Under Article 7 of the Convention, he complains that section 656 § 9 of the CCP, as amended in 2013, was applied retrospectively to offences committed in 2012.
He also complains under Article 6 § 1 of the Convention that the Court of Cassation failed to address his complaint concerning the retrospective application of section 656 § 9 of the CCP.
QUESTIONS TO THE PARTIES
1. Has there been a violation of Article 7 of the Convention? In particular, in light of the wording of section 656 § 9 of the Code of Criminal Procedure and of the applicant’s conviction under section 612 bis of the Criminal Code, did the domestic courts’ decision not to suspend the execution of his prison sentence have a sufficient legal basis?
2. Did the application of section 656 § 9 of the Code of Criminal Procedure breach the applicant’s rights under Article 7 of the Convention (see Del Río Prada v. Spain [GC], no. 42750/09, § 116, ECHR 2013, and Kupinskyy v. Ukraine, no. 5084/18, §§ 62-64, 10 November 2022)?
3. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, did the Court of Cassation evaluate and address in its judgment the argument raised by the applicant concerning the question of the retrospective application of section 656 § 9 of the Code of Criminal Procedure to his detriment (see Felloni v. Italy, no. 44221/14, §§ 27‑31, 6 February 2020, and Boldea v. Romania, no. 19997/02, § 30, 15 February 2007)?