Resolution CM/ResDH(2011)122

Execution of the judgment of the European Court of Human Rights
F.C.B. against Italy and 4 four other similar cases

(F.C.B.: Application No. 12151/86, judgment of 28/08/91,
Resolution DH(93)6 and Interim Resolution ResDH(2002)30;
Ali: Application No. 24691/04, judgment of 14/12/2006, final on 14/03/2007
Hu: Application No. 5941/04, judgment of 28/09/2006, final on 28/12/2006
Pititto: Application No. 19321/03, judgment of 12/06/2007, final on e 12/11/2007
Zunic: Application No. 14405/05, judgment of 21/12/2006, final on 21/03/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern the unfairness of in absentia criminal proceedings brought against the applicants in Italy (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the applicant the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of
- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ResDH(2011)122

Information on the measures taken to comply with the judgment in the case of
F.C.B. against Italy and four other similar cases

Introductory case summary

These cases concern the unfairness of in absentia criminal proceedings brought in Italy against the applicants, who were sentenced to several years’ imprisonment.

The European court found that there had been a denial of justice in these cases since it had not been shown that the applicants had fled justice or had decided not to appear in order to defend themselves. Subsequently, having been informed of the judgments against them, they had no possibility of obtaining a fresh examination by a court of the merits of the accusations laid against them (violations of Articles 6§1 and 6§3).

I.	Payment of just satisfaction and individual measures

a) Details of just satisfaction

Case	Pecuniary damage	Non-pecuniary damage	Costs and expenses	Total	Paid on	
F.C.B.			5 000 000 Italian lire	5 000 000 Italian lire	21/12/1992	
Ali			8  000 EUR	8  000 EUR	27/11/2007	
Hu			5 000 EUR	5 000 EUR	18/12/2007	
Pititto			6 299 EUR	6 299 EUR	25/02/2008	
Zunic			3 849,50 EUR	3 849,50 EUR	09/08/2008	

Payment of just satisfaction has been done under conditions that seem to be accepted by the applicants.

b) Individual measures

1) F.C.B.: The applicant, an Italian national, was convicted in absentia in 1984 and sentenced to 24 years’ imprisonment.

In March 1993, the Committee of Ministers adopted Resolution DH(93)6, putting an end to the examination of the case on the basis of information provided concerning the general measures taken to avoid new, similar violations. However, in 1999, the Committee decided to resume the examination of this case, the Italian authorities having requested the extradition of the applicant from Greece with a view to enforcing the conviction at issue. In September 2000, the Italian authorities dropped their request. In 2004 the applicant, who had meanwhile returned to Italy, was arrested for other offences. The Italian authorities issued an enforcement order in respect of the conviction at issue in the present case.

In 2004 the applicant contested the lawfulness of his imprisonment by means of an objection to enforcement (“incidente d’esecuzione”) before the Milan Assizes Court of Appeal, which dismissed his appeal. Upon appeal by the applicant, the Court of Cassation, in a judgment of 22/09/2005, quashed the decision of the appellate court, to which it referred the case back. In doing so the Court of Cassation was careful to specify to the appellate court that, given the supranational value of the provisions of the European Convention, it should determine whether this was of a nature to prevent the enforcement in national law of a sentence pronounced in unfair proceedings, or whether on the other hand the value of the res judicata should prevail in the absence of an appropriate means of redress. The appeal court dismissed again the applicant’s motion concerning the illegality of his imprisonment. Seised once more by the applicant, the Court of Cassation dismissed his appeal (judgment of 15/11/2006) on the grounds that the applicant should rather have submitted an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termine) pursuant to the new Article 175 of the Code of Criminal Procedure (CPP).

In August 2007 the applicant lodged a new application before the European Court, complaining that he had been deprived of his freedom and that, moreover, as a result of proceedings found to be unfair by the European Court. He also complained of the dismissal of his “incidente d’esecuzione” and the national authorities’ failure either to free him or to seise the Constitutional Court of the matter.

The European Court declared the application inadmissible on 25/11/2008 on grounds of non-exhaustion of internal remedies (Cat Berro, application no. 34192/07). It noted that, following to the Court of Cassation’s judgment of 15/11/2006 (see under general measures), the applicant had had the possibility to lodge an application for suspension of the time-limit for appeal against sentence under Article 175 CPP, as amended by Act No. 60 of 22/04/2005. In these circumstances, as well as in the light of the Court of Cassation’s case law, the European Court considered that “the possible application for suspension of the time-limit for appeal against sentence was not deemed to fail or not to guarantee the applicant, with a sufficient degree of legal certainty, the opportunity to go before a court and defend himself in a new set of proceedings”.

2) Ay Ali: The applicant, a Swedish national, was convicted in absentia and sentenced to 20 years’ imprisonment. The judgment became final in 1999. In 2000, the applicant was arrested in Lithuania under the terms of an international arrest warrant issued by the Italian authorities and extradited to Italy.

On 16/11/2000, the applicant applied for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini). This was denied by the final judgment by the Court of Cassation of 4/12/2003. Following the judgment of the European Court on 14/12/2006, the applicant applied again to the Verona Tribunal for the suspension of time-limit for appeal against sentence (istanza di rimessione in termini) and for being freed, on the basis of Articles 670 and 175 of the CPP. The court decided to accept the request for suspension of time-limit for appeal against sentence to lodge an appeal, as provided by Article 175 of the CPP, and meanwhile freed the applicant. In conformity with the court’s decision, he lodged an appeal.

3) Hu: The applicant, a Chinese national, was sentenced in absentia to 19 years’ imprisonment. The judgment became final in 1998.

In 2003, the applicant was arrested at Amsterdam airport under an international arrest warrant issued by the Italian authorities. The Netherlands authorities then rejected the application for extradition on the ground that the applicant had not had the opportunity to defend himself. The applicant was then freed (25/11/2003) and resides in the Netherlands.

No application for suspension of the time-limit for appeal against sentence under Article 175 CPP to lodge a late appeal against the in absentia conviction has been received by the competent court (Turin court) so far.

4) Pittito: The applicant, an Italian national, was convicted in absentia and sentenced to 21 years’ imprisonment. The judgment became final in 1999.

The applicant was arrested in Spain in 2000 under an international arrest warrant issued by Italy, and was extradited. On 08/08/2007, following an order of the Milan tribunal accepting an application for the suspension of time-limit for appeal against a conviction imposed in absentia, the Milan Appeal Court ordered the applicant’s release on condition that he remained in Milan and reported daily to the appropriate police station.

On 30/07/2001 the applicant lodged a motion for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termine) which was dismissed. The applicant then introduced before the Court of Milan a new application for the suspension of time-limit for appeal, as provided in Article 175 of the Code of Criminal Procedure as amended in the meantime. The court decided to accept it on 19/07/2007. The applicant appealed against his conviction in absentia on 23/11/2007.

5) Zunic: The applicant, a national of Bosnia and Herzegovina, was convicted in absentia and sentenced to 10 years’ imprisonment and a fine. The judgment became final in 1999.

In 2002, the applicant was arrested in Croatia under the terms of an international arrest warrant issued by the Italian authorities and extradited to Italy.

The applicant has brought several appeals against his conviction, including, on 13/02/2004, an incidente d’esecuzione (objection to enforcement) and on 13/05/2005, an application for suspension of the time-limit for appeal against his sentence (istanza di rimessione in termini), but these were all rejected. In 2006, the applicant issued a further objection to enforcement, which was denied by the Florence Appeal Court. The applicant seised the Court of Cassation which, in March 2007, decided to annul the enforcement order related to his conviction and ordered his release. The applicant was freed and is subject to no obligation based on his conviction. The competent court (the Court of Lucca) indicated that the applicant had not applied for suspension of the time-limit for appeal pursuant to Article 175 CPP, as modified in 2005.

In the light of the foregoing, no further individual measure was considered necessary by the Committee of Ministers in these cases.

II.	General measures

	1) Legislative measures: In 1989, Italy adopted a new Code of Criminal Procedure improving the guarantees in case of in absentia proceedings (see Resolution DH(93)6).
In 2004, in its chamber judgment in the Sejdovic case (10/11/2004), the European Court found the improvement brought about by the reform of 1989 insufficient. Some months later Italy amended Article 175 of the CPP (Legislative Decree No. 17 of 21/02/2005, confirmed by Act No. 60 of 22/04/2005), to determine the requirements of the remedy referred of the application for suspension of the time-limit for appeal against sentence (istanza di rimessione in termini). Thus it is possible to appeal against judgments rendered in absentia at first instance even if the normal deadlines have expired.

Under the new provisions, the time-limit for appeal against a judgment issued in absentia is reopened upon request of the accused. There are two exceptions to this rule: where the accused has had “effective knowledge” of the proceedings against him or of the judgment, and when he/she has wilfully decided not to appear or to appeal. Moreover, the basic deadline has been extended from ten to thirty days counting from the date upon which the accused is delivered to the Italian authorities. In its Grand Chamber judgment in the Sejdovic case on 1/03/2005 - after the entry into force of the new law - the European Court considered that it was premature in the absence of any domestic case-law, to pronounce itself on this reform (§§123-124). A bill further reforming in absentia conviction (draft law AC 2664) fell following the dissolution of the Italian Parliament in February 2008.

In its inadmissibility decision concerning a new application from one of the applicants (F.C.B.), the European Court assessed the reform of in absentia proceedings as described above. The Court considered that the wording of the new Article 175 CPP appears to have filled the gaps it found in the past (see the above mentioned decision Cat Berro).

The European Court also recalled that, according to its constant case law, an accused convicted in absentia, who was not given the possibility to appear in court or defend himself, is not entitled to have his conviction erased. But he is entitled to a have a fresh judicial determination, after having been heard, on the merits of the accusations against him. Therefore, the Court concluded that the provision at issue combined with the Court of Cassation’s case law on the subject (see judgment No. 32678, Somogy, below) constitute an adequate remedy to guarantee with sufficient legal certainty an opportunity to those convicted in absentia to go before a court and defend themselves in new proceedings.

	2) Jurisprudential measures: By the combined application of Article 175 CPP and of the Court of Cassation’s case law it is now possible to re-examine a judgment having the status of res judicata which led to an in absentia conviction sanctioned as unfair by the European Court. According to the Court of Cassation (judgment No. 32678 of 12/07/2006, Somogy, judgment No. 4395 of 15/11/2006, Cat Berro), an application for suspension of the time-limit for appeal against sentence (istanza di rimessione in termini) is the appropriate means for the re-opening of such proceedings. To this purpose, the Court affirmed that, when a final judgment of the European Court sanctions a violation of Article 6 of the Convention, the national judge cannot dismiss an application for suspension of the time-limit for appeal against sentence on the ground of arguments excluding the unfairness of the proceedings or the fact that the judgment is final in the domestic legal order. In order to achieve this, the Court of Cassation reaffirmed the direct effect of the Convention and of the case-law of the European Court in Italian law, not least in respect of domestic judgments having the status of res judicata. It thus affirmed the retroactive application of Article 175 of the CPP.

The case-law of the Court of Cassation has been applied by the Verona Tribunal in the Ay Ali case (order No. 202/08 of 12/03/2008), thereby showing that it seems possible to rely directly on the direct effect of the Convention to resolve these cases. By reference to decisions Nos. 3600 (Dorigo) and 32678 (Somogy) of the Court of Cassation, the Tribunal held that the direct applicability in the internal legal order of the European Court’s judgment finding the violation of Article 6 means that the applicant had the right to ask for the re-opening of the procedure or for the revision of the judgment; as a consequence of this right the conviction was not definitive and thus unenforceable, and the detention was illegal. The Tribunal indicated that the remedy at the applicant’s disposal in the domestic legal order is the suspension of time-limit for appeal against sentence as provided by Article 175 CPP. It noted that in the event of retroactive application, the thirty days available for applying run as from the date in which the European Court’s judgment become final.

III.	Conclusions of the respondent state

The government considers that the individual measures adopted have fully remedied the consequences for the applicants of the violations of the Convention found by the European Court in these cases, that the general measures will prevent similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.