ON THOSE GROUNDS
THE CONSTITUTIONAL COURT
declares that Article 630 of the Code of Criminal Procedure is unconstitutional insofar as it does not provide for a different ground for the review of a judgment or conviction in order to enable a trial to be reopened when this is necessary, pursuant to Article 46(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms in order to comply with a final judgment of the European Court of Human Rights.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 4 April 2011.
....
Starting from judgments no. 348 and no. 349 of 2007, the case law of this Court has been settled in ruling that the provisions of the ECHR – as interpreted by the European Court of Human Rights, specifically established in order to interpret and apply the Convention (Article 32(1) of the Convention) – supplement the constitutional principle laid down under Article 117(1) of the Constitution as “interposed rules” by requiring that national legislation comply with the requirements resulting from “international law obligations. ...” [p. 11]
..., {T}he Strasbourg Court considers, according to case law that is now settled, that the obligation to comply with its final judgments incumbent upon the contracting Parties under Article 46(1) ECHR also entails the commitment for the contracting States to allow trials to be reopened, if requested by the interested party, whenever this may appear necessary in order to grant full redress to that person in cases in which the guarantees recognised by the Convention have been violated, particularly the right to a fair trial.
This interpretation cannot be deemed to contrast with the relevant protections offered by the Constitution. In particular – without prejudice to the undoubted relevance of the values represented by the certainty and stability of a res iudicata – the provision for the setting aside of the related exclusionary effects in cases involving particularly serious infringements – such as those ascertained by the Strasbourg Court, having regard to the judicial proceedings as a whole – of the guarantees relating to fundamental human rights cannot be regarded as unconstitutional. With particular reference to the provisions of Article 6 of the Convention, these guarantees are moreover largely confirmed under the current text of Article 111 of the Constitution. [p. 12 - 13]
....{R}eview {that is, revision} – which entails the reopening of the trial as an extraordinary ground for appeal of a general nature, implying a resumption of procedural activities addressing the merits of the case, including also the discovery of evidence – is that which most closely resembles the remedy which it appears necessary to introduce in order to guarantee that the national legal order complies with the principle invoked.[p. 13]
In this case, Article 630 of the Code of Criminal Procedure must be ruled unconstitutional precisely because (and insofar as) it does not contemplate a “different” ground for review compared to those currently available which is aimed specifically at permitting a trial to be reopened ... when it is necessary to reopen the case pursuant to Article 46(1) ECHR in order to comply with a final judgment of the European Court of Human Rights.... Moreover, the concept of “trial” here is to be understood in generic terms that are also conducive to the repetition of activities already carried out and, if appropriate, of the whole case.
The need for the case to be reopened must naturally be assessed taking account of the indications contained in the judgment to be enforced, as well as in any “interpretative” judgment that may be requested from the European Court by the Committee of Ministers pursuant to Article 46(3) ECHR, as well as with reference to the objective nature of the violation ascertained.
The Court holds moreover that, should the situation considered above obtain, the court will be required to review the compatibility of the individual provisions relating to the review proceedings. Any provisions which appear to be irreconcilable in logical and legal terms with the objective pursued (that of placing the interested party in the situation in which he would have been had the violation ascertained not occurred, and not remedying an incorrect assessment by the trial court resulting from elements external to the trial) will have to be considered inapplicable....[p. 14]
...{I}n the appropriate cases, the provisions of Article 637(2) and (3) of the Code of Criminal Procedure (which provide, respectively, that the acceptance of the application will inevitably entail the acquittal of the interested party, and that the court may not reach its decision exclusively on the basis of a different assessment of the evidence heard in the previous proceedings) should also be considered inapplicable.
....{T}he review court will also have to assess how the grounds for the unfairness of the trial found by the European Court translate into flaws in procedural acts under national law, and shall adopt all consequent measures in the new proceedings in order to remove them.[p. 15]