Breach of the presumption of innocence

The case Rigolio v. Italy concerned the proceedings against the applicant for extortion (concussione) while he was a councillor in the municipality of Besozzo, Italy, for intentionally delaying the issuance of a building permit in order to receive a bribe of 40 million Italian lire (equivalent to EUR 20,658 at the time) from the building owner, M.M.

The District Court of Varese, on May 14, 2002, ruled that the applicant had to pay damages to the owners and to the municipality of Besozzo, in addition to sentencing him to 4-years of incarceration. On March 31, 2006, the Milan Court of Appeal found the case time-barred due to the statute of limitations, and overturned the applicant’s obligation to pay to the owners, while holding his obligation to pay to the municipality. 

The Court of Cassation refused the applicant’s appeal for a substantive acquittal on November 29, 2007, by stating that the offence was evidenced through M.M’s and his co-defendant’s testimonies as well as the applicant’s confessions.

In February 2005, the Lombardy public prosecutor’s office of the Court of Auditors asked the applicant for his defense. On June 14, 2005, while the hearings were still ongoing before the Court of Appeal, the public prosecutor’s office demanded the applicant to pay the municipality of Besozzo EUR 41,316. In February 2006, the Regional Chamber rejected the demand, however, in 2008, the Central Chamber ordered the applicant to pay. 

The applicant argued before the ECtHR that the hearings before the Court of Auditors were not fair and moreover breached the principle of the presumption of innocence. The ECtHR deemed the argument qualified under Article 6.2 ECHR only, which states that “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. 

The ECtHR noted that even if a person is acquitted criminally, they could be found liable in civil matters. Moreover, it found that, according to Italian law, after criminal charges against the accused are dropped due to the statute of limitations, compensation could still be granted. Moreover, the administrative liability constituted a separate case before the Court of Auditors, and not a continuation of the criminal hearings. The applicant’s civil liability did not equate to a declaration of his criminal guilt. In line with this, the ECtHR unanimously decided that there was no breach of the principle of the presumption of innocence.

Impartiality of the Court of Appeal ruling in the same context

The case Urgesi and Others v. Italy concerned the facts that in 2000, the applicants, Urgesi, Albano, and Florio were convicted guilty in the case “Cahors” for criminal activities related to usury within a criminal association active in the region of Puglia; whereas Urgesi was also convicted for involvement in a criminal enterprise, and Albano and Florio were found guilty of affiliation with a criminal organization and involvement in extortion.

The applicant Mr. Florio in the hearings had a plea agreement before Taranto Office of the Lecce Court of Appeal, and the mentioned court ordered the seizure of part of his property. Appeal proceedings for the applicants Mr. Urgesi and Mr. Albano were heard openly, and their conviction was confirmed on December 14, 2009 by the ruling of the Court of Cassation. UM, the prosecutor in the appeal hearings, played a role in reaching an agreement with Mr. Florio and requesting the Appeal Court to affirm the convictions of the other two applicants.

The ECtHR struck the applicants’ complaint regarding the failure to hold a public hearing under Article 6.1 ECHR from its list, pursuant to Article 37.1 (c) and its established case law. Secondly, regarding the applicants’ lack of impartiality complaint concerning the Court of Appeal due to the presence of UM, who served as a judge on the bench and, in the past, had acted as prosecutor in the criminal trials against some of the applicants in the “Cahors” case, the ECtHR, relying on its case law, noted that it must assess the impartiality of the aforementioned court both subjectively and objectively. Accordingly, the ECtHR considered that if the issues dealt with by the same person were “similar” or “essentially the same” in nature, this would be a relevant factor in assessing impartiality.

In its further examination, the ECtHR noted that a relevant indicator in assessing impartiality was the fact that UM, the reporting judge, had requested to withdraw from the proceedings on the grounds of concern about their own impartiality, which is a circumstance that influenced the Court of Appeal’s position on the issue. Additionally, the ECtHR found that both hearings concerned, at times, the same questions, which supported the concerns about impartiality and that Italy’s argument regarding UM not being involved in the decision-making on Mr. Florio’s conviction was unsatisfactory. Based on these considerations, the ECtHR found that the Lecce Court of Appeal could not claim to be impartial, and that there was a breach of Article 6.1 ECHR accordingly. 

Acknowledging that it was not able to anticipate the conclusion of the hearings that there was no breach of the mentioned article, the ECtHR said that there was no existent connection between the identified violation and the claimed economic loss, and dismissed the applicants’ claims regarding pecuniary damage in this respect. Furthermore, the ECtHR pointed out that a reopening of the case in which Article 6 ECHR was violated upon the applicant’s request would suffice as a redress. Regarding this kind of redress, Italy was asked to determine the measures to be applied in its national legal system in order to comply with the provisions of Article 46 ECHR. The ECtHR, unanimously, awarded the applicants EUR 2,500 concerning non-pecuniary damage.

Legislative intervention in pending cases

The case L’ortofrutticola Societa’ Cooperativa v. Italy concerned a change of legislation affecting ongoing domestic court cases. The company, L’ortofrutticola Societa’ Cooperativa, had benefited from both a benefit and an exemption on social security contributions since 1980. After 8 years, the INPS introduced a new scheme requesting companies to choose between one of them, excluding double benefits. The company challenged this decision on December 24, 2002; however, in November 2003, while the case was pending, a new Law no. 326/2003 favoring the INPS application came into effect. Accordingly, the first instance court ruled in favor of the new law, whose ruling was upheld by the subsequent appeal courts. The applicant company claimed before the ECtHR that its right to a fair trial was breached due to the legislative change.

In its assessment, the ECtHR referred to its case law Azienda Agricola Silverfunghi S.a.s. and Others, and found likewise that there was a breach of Article 6.1 ECHR. Deciding that there was a “loss of opportunity” in terms of loss sustained for the applicant company, the ECtHR granted unanimously the applicant EUR 144,380 for pecuniary damage, EUR 900 for non-pecuniary damage, and EUR 23,300 for costs and expenses incurred.

The case Vainieri and Others v. Italy comprised three different applications before the ECtHR, which were taken jointly due to the similar nature of their matters. The case concerned the retroactive legislative intervention of the 2007 Finance Act in the applicants’ ongoing cases, resulting in defining the verdict of their initial proceedings.

The applicants were among the retirees of the Volo Fond between 1996 and 2004. To obtain the remaining part of their pension after receiving a lump sum, they asked for a revaluation based on the 1981 and 2003 Ministerial Decrees, instead of the coefficients initially applied by the INPS. Before the first instance court rulings, a new legislation of 2007 Finance Act went into effect, consenting the retroactive implementation of the coefficients determined by the INPS in calculating pensions. In 2009 and 2014, the Court of Cassation endorsed the Act’s application accordingly, and following these, the applicants’ arguments were dismissed. The applicants claimed before the ECtHR that their right to a fair trial was breached.

In its assessment, the ECtHR noted, contrary to Italy’s argument, that the 2007 Finance Act directly had an impact on the domestic courts’ rulings. The ECtHR furthermore clarified that the discussion before the Act’s introduction only concerned whether or not the legal criteria to be used had to be based on a regulatory framework. It was noted that the Act was introduced to legitimize the INPS’ behavior, favoring the State. Following these, and considering its case law Vegotex International S.A. v. Belgium, the ECtHR unanimously found a breach of Article 6.1 ECHR, and granted EUR 2400 for non-pecuniary damages and EUR 3000 for costs and expenses incurred per applicant, and decided respective amounts per applicant for pecuniary damages.