Berlusconi v. Italy (dec.) [GC]

Information Note on the Court’s case-law 223

November 2018

Berlusconi v. Italy (dec.) [GC] - 58428/13

Decision 27.11.2018 [GC]

Article 37

Article 37-1

Striking out applications

Respect for human rights

Applicant unequivocally no longer wishing to pursue his application, on account of his rehabilitation: struck out

Facts – In 2012 the applicant, a former prime minister, was found guilty of tax fraud by a District Court and sentenced to a term of imprisonment and to an ancillary penalty of five years’ disqualification from public office (reduced to two years on appeal).

In February 2013 the applicant was elected to the Senate. In August 2013 the Senate’s Committee on Elections and Parliamentary Immunity initiated the procedure for his removal from office. On 15 October 2013 it reported back to the Senate, which, on 27 November 2013, invalidated the applicant’s election and declared that he had forfeited his seat.

In his application of 10 September 2013 to the European Court, the applicant complained of (i) a violation of Article 7 of the Convention (no punishment without law) on the grounds that he was disqualified from elective office after being convicted for acts he had committed before the entry into force of the relevant legislation (the “Severino Act”); (ii) a violation of Article 3 of Protocol No. 1 (right to free elections) on the grounds that the ineligibility provided for by the Severino Act did not comply with the principles of legality and proportionality in relation to the aim pursued, thus breaching both his right to fulfil his electoral mandate and the electorate’s legitimate expectation that he would serve his term as senator; (iii) a violation of Article 13 (right to an effective remedy) on the grounds that there was no accessible and effective remedy in domestic law by which to challenge either the incompatibility of the Severino Act with the Convention or the Senate’s decision to remove him from office; and (iv) a violation of Article 3 of Protocol No. 1 in conjunction with Article 14 of the Convention (prohibition of discrimination) in that he had been disqualified from standing for election for six years, on an equal footing to an individual who had been given a more severe penalty of disqualification from public office than he had. In a letter of 7 May 2014, after the Court of Cassation’s judgment upholding the ancillary penalty of temporary disqualification from public office had been deposited on 18 March 2014, the applicant raised two further complaints, under Article 4 of Protocol No. 7 (right not to be tried or punished twice) and under Article 6 § 1 of the Convention (right to a fair trial).

On 6 June 2017 the Chamber of the Court to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber.

On 11 May 2018 the sentence supervision court granted an application for rehabilitation lodged by the applicant on 8 March 2018. In its decision the court observed, in particular, that the applicant had served his sentence and that he had not had any further convictions and had thus displayed good behaviour. The decision became final on 29 May 2018.

Subsequently, the applicant asked the European Court for leave to submit documents relating to the rehabilitation procedure, together with written observations on the effects of the measure on the admissibility and merits of the application. He argued that his rehabilitation demonstrated the purely criminal nature of disqualification from standing for election and was likely to have an impact on his status as a victim. The President of the Grand Chamber granted the applicant leave to file the documents. However, on two occasions she refused him leave to submit observations under the Rules of Court.

On 27 July 2018 the applicant informed the Court that he no longer intended to pursue his application.

Law – Article 37: In July 2018 the applicant had informed the Court that he no longer intended to pursue his application and asked for it to be struck out of the list of cases. He had argued in particular that, as a result of his rehabilitation, the Court’s decision on his application would serve no useful purpose, given that his disqualification from standing for election had been lifted and that no adequate redress could be afforded either for the disqualification or for the loss of his seat in the Senate. He had asked the Court to strike the case out of its list.

On 10 August 2018 the Government had stated that they would leave the matter to the Court’s discretion.

The Court noted that the applicant had explicitly stated that he did not wish to pursue his application. His intention to withdraw from the proceedings instituted before the Court had been unequivocally established. In accordance with Article 37 § 1 (a) of the Convention, the Court concluded that the applicant did not intend to pursue his application.

Accordingly, there was no need to ascertain whether the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention.

It remained to be determined whether there were special circumstances relating to respect for human rights as defined in the Convention and the Protocols thereto which required the continued examination of the application.

To that end, the Court had regard, inter alia, to whether the case raised important issues providing it with an opportunity to elucidate, safeguard and develop the standards of protection under the Convention, or whether the impact of the case went beyond the particular situation of the applicant. Taking account of the facts of the case as a whole, in particular the applicant’s rehabilitation and his unequivocal wish to withdraw his application, the Court concluded that no special circumstances relating to respect for human rights required it to continue the examination of the application in accordance with Article 37 § 1 in fine.

Conclusion: struck out (majority).

(See also Association SOS Attentats and de Boëry v. France (dec.) [GC], 76642/01, 4 October 2006, Information Note 90; F.G. v. Sweden [GC], 43611/11, 23 March 2016, Information Note 194; and Khan v. Germany (striking out) [GC], 38030/12, 21 September 2016, Information Note 199)

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