PRINARI v. ITALY

FIRST SECTION

DECISION

Application no. 20402/16
Giovanni PRINARI
against Italy

The European Court of Human Rights (First Section), sitting on 4 June 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. 20402/16) 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 4 April 2016 by Mr Giovanni Prinari (“the applicant”), an Italian national born in 1963, who is detained in Sulmona and was represented by Mr G. Valentini, a lawyer practising in Rome;

the decision to give notice of the application to the Italian Government (“the Government”), represented by their Agent, Mr L. D’Ascia;

the observations of the respondent Government;

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.  On an unspecified date the applicant was brough to trial for multiple crimes committed between 1990 and 1991 and cumulatively punishable by life imprisonment with daytime isolation.

3.  At the preliminary hearing of 5 March 1997, 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).

4.  The request was denied in accordance with Constitutional Court’s judgment no. 176 of 21 April 1991, which had set aside the possibility of trial under the summary procedure for crimes punishable by a life sentence.

5.  On 18 July 1998, the Lecce Assize Court found the applicant guilty and sentenced him to an overall penalty of life imprisonment with daytime isolation.

6.  The applicant appealed against the conviction, which the Lecce Assize Court of Appeal upheld on 19 November 1999.

7.  The applicant lodged an appeal on points of law.

8.  On 2 January 2000, Law no. 479 of 1999 entered into force, reinstating the possibility (previously denied) 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.

9.  On 8 June 2000, Decree-Law no. 82 of 7 April 2000, as amended and converted into Law no. 144 of 5 June 2000, entered into force. Pursuant to its section 4 ter, defendants liable to a sentence of life imprisonment were allowed to request to be tried under the summary procedure at their next hearing, provided that evidentiary hearings were still ongoing in their case, either at first or second instance.

10.  On 24 November 2000, Decree-Law no. 341 of 2000 entered into force. Section 7 of the Decree-Law established that “life imprisonment”, as referred to 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.

11.  By a judgment of 23 April 2001, the Court of Cassation dismissed the applicant’s appeal on points of law and his conviction became final.

12.  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.

13.  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.

14.  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).

15.  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.

16.  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 14 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.

17.  On 12 May 2011 the applicant instituted proceedings for the review of the enforcement order relating to his sentence, seeking leave to request to be tried under the summary procedure out of time or that his sentence be reduced to thirty years’ imprisonment, allegedly in line with the principles set out in Scoppola (no. 2) (cited above).

18.  On 26 March 2012, the Lecce District Court, acting as an enforcement judge (giudice dell’esecuzione), ruling on the applicant’s request, referred to the Constitutional Court the question of the constitutionality of section 4 ter of Decree-Law no. 82 of 7 April 2000, as amended and converted into Law no. 144 of 5 June 2000, where it prevented defendants in proceedings pending before the Court of Cassation from submitting a request for trial under the summary procedure (see paragraph 9 above).

19.  By order no. 235 of 23 July 2013, published in the Official Gazette on 31 July 2013, the Constitutional Court deemed the question manifestly inadmissible, considering that the applicant, conversely to Mr Scoppola, was never granted the summary procedure, therefore he had never acquired the right to benefit from the reduction of his sentence (from life imprisonment to thirty years’ imprisonment) provided for by Law no. 479 of 1999 (see paragraph 8 above). It further held that, in any event, section 4 ter of Decree‑Law no. 82 of 2000 should be considered a procedural rule falling outside the scope of Article 7 of the Convention, as set out by the Court in the case Morabito v. Italy ((dec.), no. 21743/07, 27 April 2010). It followed that the enforcement judge was not entitled to modify the applicant’s final conviction.

20.  Consequently, on 16 January 2014, the Lecce District Court denied the applicant’s request for a reduction of his sentence.

21.  By judgment no. 41118 of 18 September 2015, deposited with its registry on 13 October 2015, the Court of Cassation deemed the applicant’s appeal on points of law inadmissible.

22.  The applicant complained that the denial of access to the summary procedure due to the stage at which his proceedings were pending deprived him of the benefit of the provision prescribing a more lenient penalty, as set out in Scoppola (no. 2) (cited above), in breach of Article 7 of the Convention.

23.  He further alleged that this denial amounted to a violation of Article 13 of the Convention due to the absence of domestic remedies allowing him to raise the alleged violations of the Convention.

THE COURT’S ASSESSMENT

24.  The Government argued that the application had been lodged outside the six-month time-limit, the applicant’s request for the review of his enforcement order being an extraordinary remedy and thus not relevant for the purposes of Article 35 § 1 of the Convention. They also observed that no violation of the alleged provisions had occurred in this case.

25.  The applicant replied that he wished to pursue the present application albeit not presenting any observations on the admissibility and merits of the case.

26.  The Court reiterates that in assessing whether an applicant has complied with Article 35 § 1, the requirements contained in that Article concerning the exhaustion of domestic remedies and the six-month period[1] are closely interrelated (see Jeronovičs v. Latvia [GC], no. 44898/10, § 75, 5 July 2016).

27.  As a rule, the six-month period runs from the date of the final decision in the process of the exhaustion of domestic remedies. Where an applicant avails himself or herself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 259-60, ECHR 2014 (extracts), and Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009).

28.  In the present case, the Court observes that, by its judgment no. 210 of 3 July 2013, the Constitutional Court found that section 7 of Decree-Law no. 341 of 2000 was unconstitutional and that a review of the enforcement order was the appropriate means by which the benefit of the more lenient penalty of thirty years’ imprisonment could be granted to those who had made a request to be tried under the summary procedure while Law no. 479 of 1999 had been in force and had been sentenced afterwards (see paragraph 16 above).

29.  The Court further notes that, deciding on the applicant’s appeal, the Lecce District Court, acting as an enforcement judge, referred to the Constitutional Court the question of the constitutionality of Section 4 ter of Decree-Law no. 82 of 2000, pursuant to which the applicant had been prevented from requesting the summary procedure before the Court of Cassation (see paragraph 18 above).

30.  It recalls that by order no. 235 of 16 July 2013, the Constitutional Court, while deeming the question inadmissible, explicitly held that section 4 ter of Decree-Law no. 82 of 2000 was a procedural rule falling outside the scope of Article 7 of the Convention and that the applicant was not entitled to a reduction of his sentence by way of a review of the enforcement order (see paragraph 19 above).

31.  The Court thus considers that, following the Constitutional Court’s order no. 235 of 16 July 2013 (published in the Official Gazette on 31 July 2013), the applicant must have become aware of the fact that the remedy of which he had availed himself had turned out to be ineffective.

32.  Despite this, once the Lecce District Court, acting as an enforcement judge, had rejected the applicant’s request on 16 January 2014, he lodged an appeal on points of law (see paragraphs 20 and 21 above).

33.  The Court finds that, in the light of the Constitutional Court’s conclusion (see paragraph 19 above), such an appeal on points of law was doomed to failure from the outset (see Jeronovičs, cited above, § 75, in fine). Accordingly, in the circumstances of the present case, the final domestic decision to be taken into account to calculate the six-month time‑limit pursuant to Article 35 §§ 1 and 4 of the Convention is the Constitutional Court’s order no. 235 of 16 July 2013 or, at the latest, the Lecce District Court’s decision of 16 January 2014 (see also Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

34.  Considering that these two decisions were handed down more than six months prior to 4 April 2016, the date on which the applicant lodged the present application, the Court concludes that this application is out of time and must be declared inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 27 June 2024.

 Liv Tigerstedt Péter Paczolay
 Deputy Registrar President

[1] Protocol No. 15 to the Convention has shortened to four months from the final domestic decision the time-limit provided for by Article 35 § 1 of the Convention. However, in the present case the six-month period still applies, given that the final domestic decisions were taken prior to 1 February 2022, date of entry into force of the new rule (pursuant to Article 8 § 3 of Protocol No. 15 to the Convention).