Court of Strasbourg’s judgments and imprisonment in the Italian jurisprudence

In the evolution of the Italian jurisprudence aimed to enforce the pronounce­ments of the European Court of Human Rights regarding criminal matters, the Stoichov vs Bulgaria case has had crucial importance because that decision gave rise to an innovative interpretation of some rules established in the Italian criminal procedure code.

The revolutionary impact of ECtHR case law 67 illegal detention due a conviction stated after an unfair trial. In this field, the indications coming from ECtHR have been enforced by the judges appointed to deal with this stage of criminal proceedings subsequent to the enforcement of the conviction (so-called ‘giudice dell’esecuzione’, according to the Italian legal system). Such judges, in accordance with art. 670 c.p.p., have the power to sus­pend the detention if it is doubtful that the deadline for appealing has been expired or if the defendant’s right to appeal the judgment has to be restored (id est, if it results or it is doubtful that the defendant did not attack the conviction because he did not know that this pronouncement had been stated before). After the Court of Strasbourg ruled in the Stoichov vs Bulgaria case, the Italian Court of Cassazione established that the imprisonment has to be suspended when the person in prison obtained a pronouncement of the ECtHR which declared the violation of art. 6 ECHR or the principles embodied therein regarding the trial in which the applicant has been convicted.

This application of art. 670 c.p.p. has been discussed and it is still under dis­cussion today in Italy. Most of the doctrine criticised the pronouncements with whom the Italian Court of Cassazione allowed the suspension of the imprison­ment of those convicted people who presented their application to the Strasbourg Court and won their appeal. Many criminal procedure scholars said that criminal judges haven’t got the power of suspension in this case and that those judgments do not comply with the law.^[156] According this opinion, the Italian jurisprudence just examined is the umpteenth piece of proof that nowadays Italian courts create criminal procedural rules, despite art.

On the other hand, there are other scholars agreeing with the possibility of suspending imprisonment of convicted people based on the need that Italian judges have been bound by Strasbourg Court judgments. This opinion is founded on the idea that in the Italian system judges’ power protects people’s freedom - according to art. 13 paragraph II of the Italian Constitution, which establishes that the right to liberty shouldn’t be violated and according to the law only judges may restrict someone’s freedom and they must give their reasons for doing so. Therefore, when judges issue a pronouncement to expand the freedom after it has been restricted, it is an unneeded and superfluous express provision of the law because the judges can always rule in favour of freedom.^[157]

Between these two interpretations, the second one appears the most plausible and consistent with the role attributed by the Italian Constitution to judges as a guarantor institution protecting freedom and other fundamental rights. Moreover, the second interpretation has to be preferred also because the suspension of the imprisonment - decided by the Sentence Enforcement Court - allows the Italian legal system to find a domestic remedy to prevent the violation of art. 5 ECHR, when the ECtHR recognised that a conviction has followed a criminal proceeding in which procedural rights granted by art. 6 ECHR have been breached.

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