Information Note on the Court’s case-law No. 128
March 2010
Sommer v. Italy (dec.) - 36586/08
Decision 23.3.2010 [Section II]
Article 6
Criminal proceedings
Article 6-1
Criminal charge
Investigations by authorities not resulting in a charge: Article 6 § 1 inapplicable; inadmissible
Article 6-3-d
Examination of witnesses
Inability of person accused of crimes against humanity to find evidence in defence owing to passage of time between alleged offence and start of investigation: admissible
Article 14
Discrimination
Restriction on grounds of nationality on right to benefit from amnesty: inadmissible
Facts – At the end of the Second World War, the Italian authorities launched investigations into killings of groups of Italian civilians, in particular during the massacre in Sant’Anna di Stazzema on 12 August 1944. Almost fifty years later, on 19 September 1992, an Italian military tribunal informed the applicant, a German citizen, that a preliminary investigation had been opened into his suspected involvement in the massacre as commanding officer of an SS unit. In 2005 the military tribunal found the applicant guilty and sentenced him to life imprisonment. The decision was upheld on appeal.
Law – Article 6 § 1: As regards the delay in opening the proceedings, the Court did not have jurisdiction to deal with complaints concerning facts dating from before 1 August 1973, when Italy’s recognition of the right of individual petition had taken effect. As to the events occurring after that date, the investigations launched by the Italian authorities in 1947 into the Sant’Anna killings had not, at that time, resulted in the indictment of the applicant. Only from 19 September 1992, when he had been informed of the opening of a preliminary investigation in respect of him, had the investigation substantially affected his situation. Accordingly, Article 6 was not applicable in its criminal aspect for the period prior to 19 September 1992.
Conclusion: inadmissible (incompatible ratione temporis and ratione materiae).
Article 6 § 3 (d): (a) Inability to examine the sole prosecution witness – The witness in question had been examined on the basis of a request for judicial assistance under the procedure provided for in the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959. The applicant’s lawyer had been able to take part in the examination of the witness and to exercise the rights of the defence, for the purposes of the 1959 Convention and domestic law. In any event, the witness’s statements had not been the only evidence on which the trial and appeal judges had based the applicant’s conviction. There had also been statements by other witnesses and archive documents.
Conclusion: inadmissible (manifestly ill-founded).
(b) Impossibility of securing exonerating evidence sixty years after the events – This complaint was closely linked to the question of non-applicability of statutory limitations to particularly serious crimes punishable by life imprisonment. While limitation periods served several purposes, which included ensuring legal certainty, the importance of the obligations under Articles 2 and 3 of the Convention to enact laws punishing serious infringements of the rights secured therein and to take steps to ensure effective investigation and prosecution should not be overlooked. In the various cases that had come before the Court concerning crimes against humanity, it had never found the non-applicability of statutory limitations to be contrary to the Convention. It could not therefore conclude that Article 6 was breached by a restriction of the rights of the defence resulting from difficulties no more severe than those inevitably entailed by a prosecution which, on account of the non-applicability of statutory limitations, it had been possible to conduct several decades after the commission of the acts in question. Furthermore, the prosecution evidence had been adduced and discussed in adversarial proceedings in the trial and appeal courts and the applicant, in person or through his lawyers, had been able to put forward all the arguments he had considered useful for the protection of his interests and to produce evidence in his favour.
Conclusion: inadmissible (manifestly ill-founded).
Article 7: As regards the allegation that the domestic courts had imposed a heavier penalty on the applicant than the one applicable at the time the offence had been committed, there was nothing to suggest that the law under which he had been convicted had not been clear or foreseeable as to its effect or that the national courts had been arbitrary in their interpretation of the relevant provisions of the Wartime Military Criminal Code, which had been in force at the time of the commission of the offences of which he was accused.
Conclusion: inadmissible (manifestly ill-founded).
Article 14 in conjunction with Article 7: The applicant alleged that he had been discriminated against in that only Italian nationals were entitled to an amnesty under Presidential Decree no. 332/1966. However, the Court found that although the decree in question, as interpreted by the domestic courts, gave rise to a difference in treatment on the basis of nationality, the choice of limiting the amnesty to Italian citizens alone was based on objective and reasonable grounds, namely the restoration of peace between Italian citizens in the extraordinary post-war context.
Conclusion: inadmissible (manifestly ill-founded).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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