[TRANSLATION-EXTRACTS]

...

THE FACTS

The applicant, Mr Generoso Zigarella, is an Italian national who was born in 1945 and lives in Mercogliano (Avellino).

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

First set of proceedings (no. 10221/93)

By a summons of 14 March 1994, served on 27 October 1994, the applicant was requested to appear before the Avellino magistrate’s court (pretura) on 2 January 1995 on charges of breaching three different town planning laws.

As it appears that the hearing was not held, the applicant was summoned again on 24 March 1995 to appear for trial on 15 May 1995. Owing to a lawyers’ strike, the trial was adjourned to 10 April 1996. On that day evidence was heard from one of the prosecution witnesses, but the prosecution decided not to examine their second witness. Both parties asked the court to adjourn the trial to 20 November 1996. On that date the magistrate’s court noted that the applicant had applied to the District Council for his position to be regularised and had obtained planning permission for the relevant building works. The court accordingly concluded that there was no cause to continue with the criminal proceedings because there was no longer any offence.

The judgment became final on 11 January 1997.

Second set of proceedings (no. 590/94)

In the meantime, on 17 June 1996, the Avellino public prosecutor’s office had summoned the applicant to appear before the Avellino magistrate’s court on 26 June 1997 on charges of breaching four different town planning laws. The applicant received the summons on 29 April 1997. It informed him that he was being prosecuted in his capacity as site manager. The works in question involved two building sites that had been the subject of the first set of proceedings and two others. The investigation had been partly conducted by the deputy public prosecutor who had been in charge of the first proceedings.

The hearing listed for 26 June 1997 did not apparently take place. The Avellino magistrate’s court adjourned it to 19 February 1998 as one of the defendants was ill. On 19 February 1998 the same court adjourned the trial to 30 April 1998 because the witnesses had not appeared. On that date the applicant informed the court that he had already been tried for the same offence. On the same day the Avellino magistrate’s court concluded from the pleadings filed by the prosecution and the defence that the proceedings against the applicant could not be continued because a court decision (which had become final on 11 January 1997) had already been delivered in the case. The judgment of 30 April 1998 became final on 4 June 1998.

B.  Relevant domestic law

Article 649 of the Code of Criminal Procedure provides:

“Anyone who has been acquitted or convicted by a final judgment or order of a criminal court cannot be tried again for the same offence, even if it is tried on a different basis in terms of classification, degree of seriousness or circumstances ... .

If fresh proceedings are nevertheless instituted, the court shall, at any stage of the proceedings, acquit or discharge the defendant and state the reasons for doing so in the operative part of the judgment.”

Article 121 of the Code of Criminal Procedure provides:

“The parties and counsel may at any stage of the proceedings submit written pleadings or requests to the court, which they shall file with the court registry.

The court shall rule on these duly submitted requests without delay and in any event, subject to any specific statutory provision to the contrary, within fifteen days.”

COMPLAINTS

...

The applicant also alleged a violation of Article 4 of Protocol No. 7 on the ground that he had been tried twice for the same offences.

THE LAW

...

2. The applicant further alleged a violation of Article 4 of Protocol No. 7, which provides:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2.  The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.

3.  No derogation from this Article shall be made under Article 15 of the Convention.”

The applicant complained that the second set of proceedings (from 29 April 1997 to 30 April 1998) had been instituted against him for the same offence as the one for which he had been tried on 27 October 1994 and acquitted on 20 November 1996.

The Government submitted that there had been no violation of Article 4 of Protocol No. 7 to the Convention. They made a preliminary submission that Article 649 of the Code of Criminal Procedure precluded a second trial and that, if fresh proceedings were nonetheless instituted, the court acquitted or discharged the defendant, stating its reasons for doing so in the operative provisions of the judgment.

With regard to the present application, the Government added that on 17 June 1996 (date of the summons to appear for trial on 26 June 1997) the first judgment was not yet final. Furthermore, it was the applicant’s responsibility to inform the court at the hearing on 26 June 1997, by requesting the application of Article 121 of the Code of Criminal Procedure, of the existence of a previous judgment and have himself discharged immediately. He had preferred to let time pass, however, and wait until the case came for trial on 30 April 1997 before pointing this out.

In the Government’s submission, it was clear that the Italian courts had remedied the position as soon as they had learned of the earlier proceedings. Consequently, the applicant could not claim to be a victim since the national courts had remedied the violation.

The applicant rejected the Government’s observations. He maintained that the hearing listed for 26 June 1997 had not gone ahead and that the first hearing at which he could have informed the court of an earlier judgment was the one on 30 April 1998 of which he claimed to have been first informed on 29 April 1997.

The Court notes that paragraph 1 of Article 4 of Protocol No. 7 applies not only to cases where defendants are convicted twice, but also to cases where they are prosecuted twice. Were this not the case, it would not have been necessary to add the word “punished” to the word “tried” since this would be mere duplication. This provision applies even where the individual has merely been prosecuted in proceedings that have not resulted in a conviction. In criminal cases the non bis in idem principle applies whether the person has been convicted or not.

Moreover, this principle is also enshrined in the same terms in Article 50 of the Charter of Fundamental Rights of the European Union and Article 14 § 7 of the United Nations International Covenant on Civil and Political Rights.

The situation to be examined by the Court in the present case is that of an applicant who was prosecuted twice for the same offence involving the same facts. In the light of the information provided by the respondent Government and not disputed by the applicant, the Court notes that the Italian courts brought the second set of proceedings in error and terminated them as soon as they became aware of their error.

In these circumstances, the Court must now determine whether Article 4 of Protocol No. 7 applies to all new proceedings instituted in respect of the same offence, whether or not they are brought in the knowledge that the defendant has already been tried in previous proceedings, or only to new proceedings which are indeed brought in the knowledge that the defendant has already been tried.

For want of any indication in the explanatory report on Protocol No. 7, the Court considers that it cannot content itself with a literal construction of the term in question, but should favour a teleological interpretation. The object and aim of the provision in question imply, in the absence of any damage proved by the applicant, that only new proceedings brought in the knowledge that the defendant has already been tried in previous proceedings contravene this provision.

Such is not the case here. As confirmation of this, the Court refers to the fact that the Italian courts terminated the proceedings as soon as they were informed that there had been a breach of the non bis in idem principle.

Even if the provision in question does extend to proceedings brought without knowledge that the defendant has already been tried in earlier proceedings, the applicant cannot claim to be a victim because the domestic courts acknowledged in substance – and put right – the alleged violation.

It follows that this complaint must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

ZIGARELLA v. ITALY DRAFT DECISION


ZIGARELLA v. ITALY DRAFT DECISION