Information Note on the Court’s case-law No. 108
May 2008
Garagin v. Italy - 33290/07
Decision 29.4.2008 [Section II]
Article 3
Degrading treatment
Inhuman treatment
Imposition of a life sentence in Italy: inadmissible
Article 5
Article 5-1
Lawful arrest or detention
Calculation of total period to be served after applicant received prison sentences from two different courts: inadmissible
Article 7
Article 7-1
Heavier penalty
Final calculation of total period to be served after applicant received two prison sentences that led to a longer deprivation of liberty than that initially indicated by State Counsel’s Office: inadmissible
The applicant was sentenced by two different Italian courts in 1995 and 1997 to twenty-eight and thirty years’ imprisonment. In 1999, applying Article 78 § 1 of the 1930 Criminal Code, the Bologna public prosecutor’s office declared that the applicant should serve a total of thirty years’ imprisonment, and this was confirmed by the Rome public prosecutor’s office in 2004. This meant that the applicant could expect to be released on 19 March 2021, or sooner if granted remission of sentence. In 2006, however, the Rome Assize Court of Appeal, referring to the relevant case-law of the Court of Cassation, declared that the applicant should serve a life sentence, in application of Article 73 § 2 of the Criminal Code. The applicant appealed to the Court of Cassation, but to no avail.
Inadmissible under Article 3 – In the Italian legal system a person sentenced to life imprisonment might be granted more lenient conditions of detention, or early release. Referring to the principles set forth in its Kafkaris judgment, the Court found that in Italy life sentences were reducible de jure and de facto. It could not be said, therefore, that the applicant had no prospect of release or that his detention in itself, albeit lengthy, amounted to inhuman or degrading treatment. The mere fact of giving him a life sentence did not attain the necessary level of gravity bring it within the scope of Article 3: manifestly ill-founded.
It then had to be determined whether the recalculation of the applicant’s sentence, leading to a longer term of imprisonment than that suggested by the public prosecutor’s office, had violated Articles 5 and 7 of the Convention.
Inadmissible under Article 5 – Making use of their undisputed right to interpret domestic law, and in particular the provisions on the aggregation of sentences, the national courts considered that Article 73 § 2 of the Criminal Code (under the terms of which, in the event of more than one sentence of at least twenty-four years, the term applicable was life imprisonment) was lex specialis in respect of Article 78 § 1. The Court noted that the process by which the total sentence to be served by the applicant had been calculated had not been arbitrary or in any other way contrary to the provisions of Article 5.
Moreover, the Convention could not stand in the way of the subsequent rectification of an error in the calculation of the sentence to be served or of a mistaken application of the rules on the aggregation of sentences: manifestly ill-founded.
Inadmissible under Article 7 – The sentences pronounced against the applicant were provided for by the Criminal Code and the applicant did not allege that the sentences had been applied retroactively. Furthermore, the national courts’ interpretation of the provisions governing the aggregation of sentences in force at the time of the offences of which the applicant had been found guilty had not been arbitrary. That interpretation had been confirmed by case-law of the Court of Cassation’s predating the applicant’s case. So there was no reason to find that a harsher sentence had been imposed on the applicant retroactively: manifestly ill-founded.
(See also the Kafkaris v. Cyprus [GC] judgment, no. 21906/04, 12 February 2008, Information Note no. 105)
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This summary by the Registry does not bind the Court.
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