Here is yet another informative case from the ECtHR:
CASE OF SCOPPOLA v. ITALY (No. 2) 10249/03 17/09/2009
In brief (excerpts from the Grand Chamber judgment):
On 2 September 1999, after a fight with his two sons, the applicant killed his wife and injured one of his sons. He was arrested on 3 September.
At a hearing on 18 February 2000 before the Rome preliminary hearings judge (giudice dell'udienza preliminare – “the GUP”) the applicant asked to be tried under the summary procedure, a simplified process which entailed a reduction of sentence in the event of conviction. In the version in force at that time Article 442 § 2 of the Code of Criminal Procedure (“the CCP”) provided that, if the crime committed by the defendant was punishable by life imprisonment, the appropriate sentence should be thirty years.
The GUP agreed to follow the summary procedure.
On 24 November 2000 the GUP found the applicant guilty and noted that he was liable to a sentence of life imprisonment; however, as the applicant had elected to stand trial under the summary procedure, the judge sentenced him to a term of 30 years.
On 12 January 2001 the Public Prosecutor's Office at the Rome Court of Appeal appealed on points of law against the Rome GUP's judgment of 24 November 2000. The prosecution argued that the GUP should have applied Article 7 of Legislative Decree no. 341 of 24 November 2000, which entered into force on the very day when the applicant was convicted. After being amended by parliament, Legislative Decree no. 341 was converted into Law no. 4 of 19 January 2001.
The prosecution contended in particular that Article 7 of Legislative Decree no. 341 had amended Article 442 of the CCP and now provided that, in the event of trial under the summary procedure, life imprisonment was to be substituted for life imprisonment with daytime isolation if there were “cumulative offences” (concorso di reati) or a “continuous offence” (reato continuato). The GUP's failure to apply Legislative Decree no. 341 amounted to “a manifest error of law”.
On 18 July 2003 the applicant lodged an extraordinary appeal on the ground of a factual error (Article 625a of the CCP)....The applicant further alleged that the sentence of life imprisonment imposed on him following the changes made by Legislative Decree no. 341 of 2000, and thus through a retrospective criminal-law provision, had breached Article 7 of the Convention and the principles of fair trial. He submitted that his waiver of procedural safeguards as a result of electing to stand trial under the summary procedure had not been compensated for by the reduction of his sentence promised by the State at the time when he made that choice. Lastly, he maintained that life imprisonment was an inhuman and degrading punishment and as such contrary to Article 3 of the Convention.
In a judgment of 14 May 2004, deposited with its registry on 28 October 2004, the Court of Cassation declared the applicant's extraordinary appeal inadmissible. It observed that he was not complaining of factual errors committed by the domestic courts but essentially attempting to challenge the Court of Cassation's assessment on points of law.
{Key aspects of the ECtHR judgment, critical for understanding its role, follow.}
147. By Article 46 of the Convention the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to choose the general and/or, if appropriate, individual measures to be adopted. As the Court's judgments are essentially declaratory, the respondent State remains free, subject to the supervision of the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court's judgment (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; Sejdovic, cited above, § 119; and Aleksanyan v. Russia, no. 46468/06, § 238, 22 December 2008).
148. However, exceptionally, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist (see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In other exceptional cases, where the very nature of the violation found is such as to leave no real choice between measures capable of remedying it, the Court may decide to indicate only one such measure (see Aleksanyan, cited above, § 239, and Abbasov v. Azerbaijan, no. 24271/05, § 37, 17 January 2008).
149. In the present case, the Court does not consider it necessary to indicate general measures required at national level for the execution of its judgment.
150. As regards individual measures, the Court observes that in many cases in which it found a violation of Article 6 of the Convention because an applicant had not been tried by an independent and impartial tribunal (see, among other judgments, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003, and Tahir Duran v. Turkey, no. 40997/98, § 23, 29 January 2004), or because of an interference with the right to participate in the trial (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV, and R.R. v. Italy, no. 42191/02, § 76, 9 June 2005) or with the right to examine prosecution witnesses (see Bracci v. Italy, no. 36822/02, § 75, 13 October 2005) the Court indicated in Chamber judgments that in principle the most appropriate remedy would be for the applicant to be given a retrial without delay if he or she so requested. The Grand Chamber has endorsed the general approach taken in the cases cited above (see Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV, and Sejdovic, cited above, §§ 126-127).
151. Nevertheless, the aim of individual measures should be to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85). A judgment in which the Court finds a violation imposes on the respondent State a legal obligation under Article 46 of the Convention to put an end to the violation found and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Menteş and Others v. Turkey (just satisfaction), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta, cited above, § 249; Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I; and Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004-II).
152. The State preserves discretion as to the manner of execution of a judgment, provided that it discharges its primary obligation under the Convention, which is to secure the rights and freedoms guaranteed (see Assanidze, cited above, § 202). At the same time, in ratifying the Convention the Contracting States undertake to ensure that their domestic legislation is compatible with it, so that it is for the respondent State to remove any obstacles in its domestic legal system that might prevent the applicant's situation from being adequately redressed (see Maestri, cited above, § 47, and Assanidze, cited above, § 198).
153. The Court has found in the present case that the retrospective application to the applicant's detriment of the provisions of Legislative Decree no. 341 of 2000 infringed the rights guaranteed by Articles 6 and 7 of the Convention. In particular, after a trial that the Court has found to have been unfair, the applicant received a sentence (life imprisonment) heavier than the maximum sentence to which he was liable at the time when he requested and was granted the right to be tried under the summary procedure (thirty years' imprisonment).
154. Having regard to the particular circumstances of the case and the urgent need to put an end to the breach of Articles 6 and 7 of the Convention, the Court therefore considers that the respondent State is responsible for ensuring that the applicant's sentence of life imprisonment is replaced by a penalty consistent with the principles set out in the present judgment, which is a sentence not exceeding thirty years' imprisonment.
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A summary of key concepts (and contrary to what those without citations [aka guilters] may claim):
1. The ECtHR generally leaves individual and general measures to be decided by the CoM with the respondent state.
2. When it sees the need, the ECtHR will specify any individual and/or general measures the respondent state should take it believes important from a human rights perspective, for example, apparently when there may be a need for urgency or a need for explicit direction.
3. This case to an extent addresses the calculation of the 30 year sentence that replaces a life sentence in the fast-track trial in Italy.