PACE v. ITALY

FIRST SECTION

DECISION

Application no. 39627/16
Mario PACE
against Italy

The European Court of Human Rights (First Section), sitting on 9 July 2024 as a Committee composed of:

 Péter Paczolay, President,
 Gilberto Felici,
 Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 39627/16) 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”) on 29 June 2016 by an Italian national, Mr Mario Pace, who was born in 1959 and is detained in Padoue (“the applicant”) and was represented by Mr G. Valentini, a lawyer practising in Rome;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The case concerns the rejection of the applicant’s request for a reduction of his sentence from life imprisonment to thirty years’ imprisonment within proceedings for the review of the enforcement order relating to his sentence (incidente di esecuzione).

2.  The applicant was brought to trial for multiple crimes committed between 1990 and 1992 and cumulatively punishable by life imprisonment.

3.  At the preliminary hearing of 22 June 1992, the applicant requested to be tried under the summary procedure (a simplified process whereby a case can be decided as the file stands – allo stato degli atti – at the preliminary hearing). The request was denied in the light of Constitutional Court’s judgment no. 176 of 1991, which had set aside the possibility to be tried under the summary procedure for defendants, like the applicant, liable to life sentence.

4.  On 22 October 1993 the applicant was sentenced to life imprisonment with daytime isolation following a trial held under the ordinary procedure. His conviction was upheld by the Catania Assize Court of Appeal on 6 June 1997.

5.  On 10 December 1997 the Court of Cassation dismissed the applicant’s appeal on points of law and the conviction became final.

6.  On 2 January 2000, Law no. 479 of 1999 entered into force, reinstating the possibility for defendants liable to a sentence of life imprisonment to be tried under the summary procedure. It provided that in the event of a conviction following trial under such a procedure, life imprisonment was to be replaced by thirty years’ imprisonment.

7.  On 24 November 2000, Decree-Law no. 341 of 2000 entered into force. Section 7 of the Decree-Law provided that “life imprisonment”, as stated in Law no. 479 of 1999, should be taken to mean “life imprisonment without daytime isolation”. In other words, only those liable to a sentence of life imprisonment without daytime isolation could be eligible for a reduction to thirty years’ imprisonment, while those liable to a sentence of life imprisonment with daytime isolation, such as the applicant, would only be eligible, in the event of trial under the summary procedure, for a reduction to life imprisonment without daytime isolation.

8.  In Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009), the Court concluded that Italy had failed to discharge its obligation to grant the applicant in that case, who had been tried under the summary procedure and sentenced to life imprisonment, the benefit of Law no. 479 of 1999 (which prescribed a more lenient penalty), in violation of Article 7 of the Convention.

9.  It also concluded that Article 6 § 1 of the Convention had been breached as a result of the frustration of the applicant’s legitimate expectation that thirty years’ imprisonment was the maximum sentence to which he was liable.

10.  In a case known as Giannone, the plenary Court of Cassation decided that the lex mitior (that is, the law providing for a reduced sentence) was only applicable in cases where the accused was tried under the summary procedure following a request made during the period when Law no. 479 of 1999 had been in force (that is to say, between 2 January 2000 and 24 November 2000).

11.  Within enforcement proceedings in a case known as Ercolano, the plenary Court of Cassation referred to the Constitutional Court the question of whether the retrospective application of section 7 of Decree-Law no. 341 of 2000 was compatible with the Constitution in the case of those who had made their request to be tried under the summary procedure while Law no. 479 of 1999 had been in force and had been sentenced afterwards.

12.  By judgment no. 210 of 3 July 2013, published in the Official Gazette (Gazzetta ufficiale) on 24 July 2013, the Constitutional Court found that section 7 of Decree-Law no. 341 of 2000 was unconstitutional in that respect and that, should the conditions set forth by the plenary Court of Cassation (see paragraph 10 above) be met, a review of the enforcement order was the appropriate means of securing the benefit of the more lenient penalty of thirty years’ imprisonment.

13.  On an unspecified date the applicant instituted proceedings for the review of the enforcement order (incidente di esecuzione), requesting that his sentence be reduced to thirty years’ imprisonment, allegedly in line with the principles set out in Scoppola (no. 2) (cited above).

14.  On 24 June 2014 the Catania Court of Appeal, acting as enforcement judge (giudice dell’esecuzione), dismissed the appeal observing that the applicant’s first request for the summary procedure had been legitimately denied in the light of the Constitutional Court judgment no. 176 of 1991. The enactment of Decree-Law no. 341 of 2000 (subject matter of Scoppola (no. 2)) had thus no influence whatsoever in his case.

15.  On 23 February 2016 the Court of Cassation subscribed to the lower court’s reasoning. Observing that the conditions established by the settled domestic case-law subsequent to Scoppola (no. 2) (see paragraphs 10-11 above) were not met and that the applicant’s situation had nothing to do with that examined under Scoppola (no. 2), the Court of Cassation declared the applicant’s appeal on points of law inadmissible.

16.  The applicant relied on Articles 7 and 13 of the Convention, alleging that the domestic courts, in the context of the proceedings for the review on the enforcement order, had failed to grant him the benefit of the provision prescribing a more lenient penalty, as set out in Scoppola (no. 2) (cited above).

17.  He also argued that the denied access to the summary procedure following Constitutional Court’s judgment no. 176 of 1991 had the effect of depriving him of the benefit of the more lenient penalty provided for by law.

THE COURT’S ASSESSMENT

18.  The relevant principles are detailed in Scoppola (no. 2) (cited above, § 92 et seq.).

19.  The Court observes from the outset that there are factual differences between Scoppola (no. 2) and the present case. Firstly, in Scoppola (no. 2), when Law no. 479 of 1999, i.e. the lex mitior, which was later amended in heavier terms, entered into force, the applicant’s criminal proceedings on the merits were pending. Conversely, in the present case, at the time Law no. 479 of 1999 was enacted, the applicant’s criminal proceedings on the merits had been concluded for two years (see paragraph 6 above). In this context, it should be noted that Law no. 479 of 1999 had no retrospective effects in favour of individuals who had been convicted by final judgment (compare and contrast, Gouarré Patte v. Andorra, no. 33427/10, §§ 33-36, 12 January 2016).

20.  Moreover, differently from Scoppola (no. 2), in the present case, the applicant was not tried under the summary procedure and thus benefited from all the procedural rights stemming from the ordinary procedure applied in his case (see, mutatis mutandis, Morabito v. Italy (dec.), no. 21743/07, 27 April 2010).

21.  In this light, the Court finds that the domestic authorities’ decisions emphasising the differences between the applicant’s case and Scoppola (no. 2) have been duly motivated and do not reveal any violation of Articles 7 or 13 of the Convention. These complaints are manifestly ill-founded under Article 35 § 3 (a) of the Convention.

22.  As for the rejection of the applicant’s request (lodged in 1992) to be tried under the summary procedure, the Court notes that the applicant failed to raise such a complaint in the proceedings on the merits of his case, as well as in the proceedings for the review of the enforcement order. Accordingly, this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies.

23.  It follows that the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 September 2024.

 Liv Tigerstedt Péter Paczolay
 Deputy Registrar President