Infringement of fair trial by lack of reasoning by the Court of Cassation for non-recognition of the benefit of mitigating circumstances.
JUDGMENT
Felloni v. Italy 06.02.2020 (no. 44221/14)
SUMMARY
The case concerned criminal proceedings which led to Mr Felloni’s conviction for driving while unfit
through drink. Mr Felloni alleged that his prison sentence was the result of the retrospective
application of harsher criminal legislation. In particular, he complained that he had not been granted
the benefit of mitigating circumstances, in accordance with the law in force at the time of the facts
and subsequently amended. He also complained about a lack of reasoning in the judgment of the
Court of Cassation before which he had raised this defence.
The Court found that the Court of Cassation had failed in its duty to give reasons for its decision as to
Mr Felloni’s defence on the question of mitigating circumstances.
It nevertheless concluded that Mr Felloni had not been penalised as a result of his case being
examined under a new criminal law which had become applicable after the facts.
PROVISIONS
Article 6
Article 7
PRINCIPAL FACTS
The applicant, Riccardo Felloni, is an Italian national who was born in 1978 and lives in Ferrare (Italy).
In 2007 criminal proceedings were brought against Mr Felloni on a charge of driving while unfit
through drink.
In 2011 the District Court sentenced Mr Felloni to a one-month suspended prison term and a fine of
900 euros (EUR). The court also ordered the suspension of his driving licence. He appealed, pleading
not guilty and, in the alternative, raised the defence of mitigating circumstances under Article 62 bis
of the Criminal Code, arguing in particular that he had no criminal record.
In 2012 the Court of Appeal upheld Mr Felloni’s conviction and sentence. It dismissed his plea of
mitigating circumstances, finding that the absence of a criminal record no longer permitted a
reduction in sentence. It found no other mitigating factor and could not take account of his
behaviour at the trial, during which he had shown no sign of remorse. The Court of Appeal also had
regard to the fact that, subsequent to the offence in question, Mr Felloni had once again been
arrested in his vehicle while under the influence of drink.
Mr Felloni appealed on points of law, submitting in particular that Article 62 bis of the Criminal Code
had been amended by Law no. 125 of 2008 and that the new rule had therefore entered into force
after the offence was committed.
In 2014 the Court of Cassation denied Mr. Felloni’s appeal.
THE DECISION OF THE COURT…
Article 6 § 1 (right to a fair hearing)
The Court found that the Court of Cassation had failed to respond to Mr Felloni’s ground of appeal
no. 6 concerning the allegedly retrospective application of Law no. 125 of 2008 to his case and the
refusal of the courts below to grant him the benefit of mitigation. The highest court had merely
declared inadmissible all the grounds of appeal raised by Mr Felloni on the basis that they sought to
call into question the version of the facts established by the lower courts.
The Court was not convinced that the question raised by Mr Felloni in his ground of appeal no. 6 had
concerned a factual question outside the remit of the Court of Cassation. It further found that the
question of the allegedly retrospective application of the legislation on mitigation had been one of
Mr Felloni’s principal grounds of appeal, such that it had required a specific and explicit response.
Mr Felloni had therefore not been guaranteed an effective examination of his arguments or a
response allowing him to understand the reasons for their dismissal. Consequently, the Court of
Cassation had failed in its duty to give reasons for its decisions. There had thus been a violation ofArticle 6 § 1 of the Convention.
Article 7 (no punishment without law)
The Court observed that the Bologna Court of Appeal had assessed Mr Felloni’s case under the new
text of Article 62 bis of the Criminal Code, as amended by Law no. 125 of 2008, which had entered
into force after the offence had been committed.
The Court was of the view that it had to address the question whether the domestic courts had
applied the legislation whose provisions were most favourable to the defendant.
It found that the criminal law in force at the relevant time did not provide for any automatic
acknowledgment of mitigating circumstances when the convicted person had no criminal record;
under the Criminal Code this was just one of the criteria that could be taken into account in the
discretionary assessment by the court under Article 133 of the Code.
Even though Law no. 125 of 2008 had amended Article 62 bis of the Code by limiting the court’s
discretion in the factors taken into account for sentence reduction, it had not reformed the system
of mitigating circumstances by rendering inoperative a legal criterion which might have been
favourable to Mr Felloni.
The Bologna Court of Appeal had rejected Mr Felloni’s plea of mitigating circumstances after
performing a holistic examination of the factors indicated in Article 133 of the Criminal Code and
carrying out an in-depth assessment of his conduct. It had thus concluded that no circumstance
justifying a reduction in sentence, including his conduct during the trial, and not even his conduct
after the commission of the offence, could be considered favourably. Mr Felloni had not shown any
sign of remorse during the trial, on the contrary he had committed the same offence again while the
criminal proceedings were pending.
Consequently, the Court found that the setting of Mr Felloni’s sentence had followed the weighing
up of all the relevant factors. In that context, there was nothing to suggest that the Court of Appeal,
if it had not examined the case under new Law no. 125 of 2008, would have granted him the benefit
of mitigating circumstances and taken account of his lack of criminal record. Mr Felloni had not
therefore been penalised on account of the consideration, under the new law, of facts which had
pre-dated the entry into force of that legislation. There had therefore been no violation of Article 7.
Just satisfaction (Article 41)
The Court held, by six votes to one, that Italy was to pay Mr Felloni 2,500 euros (EUR) in respect of
non-pecuniary damage.
Separate opinion
Judge Turković expressed a concurring opinion which is annexed to the judgment
