GRAND CHAMBER
 
 
 
 
 
CASE OF SCOPPOLA v. ITALY (No. 3)
 
(Application no. 126/05)
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
22 May 2012
 
 
 
 
This judgment is final but may be subject to editorial revision. In the case of Scoppola v. Italy (no. 3),
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Nicolas Bratza, President,
 Jean-Paul Costa,
 Josep Casadevall,
 Nina Vajić,
 Dean Spielmann,
 Peer Lorenzen,
 Karel Jungwiert,
 Lech Garlicki,
 David Thór Björgvinsson,
 Ineta Ziemele,
 Mark Villiger,
 George Nicolaou,
 Işıl Karakaş,
 Mihai Poalelungi,
 Guido Raimondi,
 Vincent A. de Gaetano,
 Helen Keller, judges,
 and Erik Fribergh, Registrar,
Having deliberated in private on 2 November 2011 and on 28 March 2012,
Delivers the following judgment, which was adopted on the last‑mentioned date:
PROCEDURE
1. The case originated in an application (no. 126/05) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr Franco Scoppola (“the applicant”), on 16 December 2004. 2. The applicant was represented by Mr N. Paoletti and Mr C. Sartori, lawyers practising in Rome. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and their co-Agents, Ms P. Accardo and Ms S. Coppari. 3. The applicant alleged that his disenfranchisement following his criminal conviction was in violation of Article 3 of Protocol No. 1. 4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). On 24 March 2009 it was declared partly admissible by a Chamber of that Section composed of the following judges: Françoise Tulkens, Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė, András Sajó, Nona Tsotsoria, Işıl Karakaş, and also of Sally Dollé, Section Registrar. 5. 6. On 15 April 2011 the Government made a request for the case to be referred to the Grand Chamber, in accordance with Article 43 of the Convention and Rule 73. A panel of the Grand Chamber accepted that request on 20 June 2011. 7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. On 3 November 2011 Jean-Paul Costa’s term as President of the Court came to an end. Nicolas Bratza succeeded him in that capacity and took over the presidency of the Grand Chamber in the present case (Rule 9 § 2). Jean-Paul Costa continued to sit following the expiry of his term of office, in accordance with Article 23 § 3 of the Convention and Rule 24 § 4. 8. The applicant and the Government each filed observations on the merits of the case. 9. Comments were also received from the Government of the United Kingdom, who exercised their right to intervene (Article 36 § 2 of the Convention and Rule 44 § 1 (b)). 10. A hearing took place in public in the Human Rights Building, Strasbourg, on 2 November 2011 (Rule 59 § 3). There appeared before the Court:
(a)  for the respondent Government 
Ms P. Accardo,  co-Agent;
(b)  for the applicant
Mr N. Paoletti, Counsel;
Mr C. Sartori, Counsel;
(c)  for the Government of the United Kingdom
Mr D. Walton, Agent;
Ms A. Sornarajah,  Agent;
Mr D. Grieve, QC, Attorney General;
Mr J. Eadie, QC Counsel;
Ms J. Hall,  Counsel;
Ms P. Baker, Counsel. The Court heard addresses by Mr Paoletti, Ms Sartori, Ms Accardo and Mr Grieve. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
11. The applicant was born in 1940 and is currently in compulsory residence at San Secondo Hospital – Fidenza (Parma). A. The criminal proceedings against the applicant
12. On 2 September 1999, after a violent family dispute, the applicant killed his wife and injured one of his sons. He was arrested the following day. 13. At the end of the preliminary investigation the Rome prosecution service asked for the applicant to be committed to stand trial for murder, attempted murder, ill-treatment of his family and unauthorised possession of a firearm. 14. On 24 November 2000, under the summary procedure under which the applicant had elected to stand trial, the Rome preliminary hearings judge (giudice dell’udienza preliminare) found the applicant guilty of all the charges and noted that he should be sentenced to life imprisonment. However, because the summary procedure had been used, he sentenced the applicant to thirty years’ imprisonment and a lifetime ban from public office within the meaning of Article 29 of the Criminal Code (see paragraph 36 below). 15. The judge noted that the applicant had first attempted to strangle his wife with the cable of the telephone she had used to call the police. Then, when his wife and children ran out of the flat and down the stairwell of the building, he had fired several shots at his wife at close range, and at one of his sons, who had initially been ahead of his mother but had gone back to help her. 16. In fixing the sentence the judge took into account certain aggravating circumstances, namely the fact that the applicant’s criminal behaviour had been against his own family and had been triggered by so trifling an incident as his children having allegedly broken his mobile phone. 17. The judge made no allowance for the fact that the applicant had no previous criminal record, an argument the applicant had relied on as a mitigating circumstance. He found that the applicant’s attitude in denying some of his actions and blaming his family, who he claimed were guilty of rebelling against his authority, showed that he felt no remorse whatsoever. 18. Lastly, the judge noted that according to witness statements the applicant had been responsible for other episodes of violence over the past twenty years, such as insults, physical violence and threats against his wife and children, including with weapons. 19. Both the Public Prosecutor’s Office and the applicant appealed against that judgment, and in a judgment of 10 January 2002 the Rome Assize Court of Appeal sentenced the applicant to life imprisonment, upholding the conclusions of the preliminary hearings judge as to which aggravating and mitigating circumstances should be taken into account. 20. The applicant appealed on points of law, and in a judgment deposited with its registry on 20 January 2003 the Court of Cassation dismissed the appeal. 21. Under Article 29 of the Criminal Code, the life sentence imposed on the applicant entailed a lifetime ban from public office, which in turn led to the permanent forfeiture of his right to vote, in conformity with section 2 of Presidential Decree no. 223 of 20 March 1967 (“Decree no. 223/1967” – see paragraph 33 below). 22. The applicant’s disenfranchisement was not mentioned in the judgments against him. B. Proceedings initiated by the applicant to recover the right to vote
23. In application of section 32 of Decree no. 223/1967 (see paragraph 35 below), on 2 April 2003 the electoral committee deleted the applicant’s name from the electoral roll. 24. On 30 June 2004 the applicant lodged a complaint with the electoral committee. Referring to the Hirst v. the United Kingdom (no. 2) judgment (no. 74025/01, 30 March 2004), amongst other authorities, he alleged that depriving him of the right to vote was incompatible with Article 3 of Protocol No. 1 to the Convention. 25. The complaint was rejected, and on 16 July 2004 the applicant lodged an appeal with the Rome Court of Appeal. He contended that the fact that the removal of his name from the electoral roll, as an automatic consequence of his life sentence and lifetime ban from public office, was incompatible with his right to vote guaranteed by Article 3 of Protocol No. 1 to the Convention. 26. By a judgment deposited with its registry on 29 November 2004 the Court of Appeal dismissed the appeal. It pointed out that, unlike in the Hirst (no. 2) case (cited above), where every person sentenced to imprisonment was divested of the right to vote, with no assessment of the competing interests or the proportionality of the measure, in Italian law the impugned measure was applied only where the offence was punishable with a particularly heavy sentence, including life imprisonment. The court found that the automatic aspect of the application of the voting ban to any custodial sentence was lacking in the applicant’s case. 27. The applicant appealed on points of law, alleging, inter alia, that his disenfranchisement was a consequence of the ancillary penalty banning him from public office (which was itself the result of the main penalty imposed on him). In his view the impugned ban had nothing to do with the offence committed and the courts had no power to decide to apply such a measure. 28. In a judgment deposited with its registry on 17 January 2006 the Court of Cassation dismissed the applicant’s appeal. First, it referred to the Hirst (no. 2) judgment of 6 October 2005 (Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 77, ECHR 2005‑IX), where the Grand Chamber considered that the withdrawal of voting rights in the United Kingdom “concern[ed] a wide range of offenders and sentences, from one day to life and from relatively minor offences to offences of the utmost gravity”. It then noted that in Italian law, under Article 29 of the Criminal Code, only those offenders sentenced to at least three years’ imprisonment were deprived of the right to vote. Where the offence attracted a sentence of less than five years, the disenfranchisement lasted only five years, a lifelong ban on voting being reserved for offenders sentenced to between five years and life. C. Reduction of the applicant’s sentence following the Scoppola v. Italy (no. 2) judgment
29. On 24 March 2003, the applicant lodged an application with the Court alleging, inter alia, that his life sentence had breached Articles 6 and 7 of the Convention. 30. In a judgment of 17 September 2009 the Grand Chamber of the Court found violations of those Articles (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009). 31. Ruling on Article 46 of the Convention, the Grand Chamber indicated that “Having regard to the particular circumstances of the case and the urgent need to put an end to the breach of Articles 6 and 7 of the Convention, the Court therefore considers that the respondent State is responsible for ensuring that the applicant’s sentence of life imprisonment is replaced by a penalty consistent with the principles set out in the present judgment, which is a sentence not exceeding thirty years’ imprisonment.” (see Scoppola (no. 2), cited above, § 154). 32. Consequently, by a judgment deposited with its registry on 28 April 2010, the Court of Cassation reversed its judgment of 20 January 2003 (see paragraph 20 above), set aside the judgment of the Rome Assize Court of Appeal of 10 January 2002 (see paragraph 19 above) and fixed the applicant’s sentence at thirty years’ imprisonment. II. RELEVANT DOMESTIC LAW
A. Loss of the right to vote
33. In the Italian legal system a ban from public office is an ancillary penalty (Article 28 of the Criminal Code) which entails forfeiture of the right to vote (Presidential Decree no. 223/1967) and for which express provision is made by law in connection with a series of specific offences, irrespective of the duration of the sentence imposed – such as embezzlement of public funds, by a public official (peculato) or otherwise, extortion, and market abuse (punishable, respectively, under Articles 314, 316 bis, 317 and 501 of the Criminal Code); certain offences against the judicial system, such as perjury by a party, fraudulent expertise or interpretation, obstructing the course of justice and “disloyal counsel” (consulenza infedele) (punishable, respectively, under Articles 371, 373, 377 and 380 of the Criminal Code); and offences involving abuse and misuse of the powers inherent in public office (Article 31 of the Criminal Code). 34. Conviction for any offence punishable by imprisonment also results in the offender being banned from public office. The ban from public office may be temporary (where the sentence is three years or more) or permanent (for sentences of five years or more and life imprisonment). The relevant domestic legal provisions are the following. 35. Presidential Decree no. 223/1967 (on the Unified Code governing the active electorate and the maintenance and revision of the electoral rolls) reads as follows, in so far as relevant:
Section 2
“1. The following persons shall not vote: ... (d) persons who have been sentenced to penalties entailing a lifetime ban from public office... (e) persons under a temporary ban from public office, for the duration of that ban. 2. Judgments in criminal cases shall entail the loss of voting rights only once they have become final.”
Section 32
“No change may be made to the electoral rolls ... save ...:
(3) where the right to vote has been lost as a result of a judgment or other measure by a judicial authority. ... (7) appeals against decisions to change the electoral rolls may be lodged with the relevant electoral committee within a ten-day time-limit. The committee shall decide within fifteen days ...”
 
Section 42
“The decisions of the electoral committee ... may be challenged by appeal to the appropriate Court of Appeal.”
 
36. The Criminal Code provides as follows, in so far as relevant:
Article 28
(Ban from public office)
“The ban from public office may be for life or temporary. In the event of a lifetime ban from public office, unless the law provides otherwise, the convicted person shall be deprived of:
(1)  the right to vote or stand for election in any electoral body (comizio elettorale) and all other political rights.”
... Article 29
(Sentences which entail a ban from public office)
“A sentence to life imprisonment or to imprisonment for no less than five years shall entail a lifetime ban from public office for the convicted person; sentencing to imprisonment for not less than three years shall entail a five-year ban from public office ...”
B. Sentencing
37. Articles 132 and 133 of the Criminal Code lay down sentencing guidelines for the trial courts and read as follows:
Article 132
(Limits to the court’s discretion when determining the sentence)
“Within the limits set by the law, the court shall apply the sentence at its discretion; it shall justify its use of this discretionary power with proper reasoning. In increasing or decreasing the sentence the court shall not overstep the statutory limits for each type of sentence, save where expressly provided for by law.”
Article 133
(Gravity of the offence: assessment of the effects of the sentence)
“In exercising the discretionary power mentioned in the preceding Article the court shall take into account the gravity of the offence, having regard to:
(1) the nature, type, means, object, time, place and any other attribute of the action;
(2) the gravity of the harm done or the danger caused to the victim of the offence;
(3) the level of intent or the degree of guilt. The court shall also take into account the offender’s propensity to commit crime (capacità a delinquere), based on:
(1) the motives behind the offence (motivi a delinquere) and the character of the offender (reo);
(2) the offender’s past criminal and judicial record and, in general, the person’s life and conduct prior to committing the offence;
(3) the offender’s conduct at the time of, or after, the offence;
(4) the offender’s personal, family and social situation.”
C. Rehabilitation
38. Articles 178 and 179 of the Criminal Code provide for the rehabilitation of offenders and read as follows:
Article 178
(Rehabilitation)
“Rehabilitation shall terminate any ancillary penalties and other penal effect of the conviction, unless otherwise provided by law.”
Article 179
(Conditions of rehabilitation)
“Rehabilitation may be granted three years after the day on which the main penalty has been completed or otherwise extinguished, provided that the offender has displayed consistent and genuine good conduct. ...”
D. Law no. 354 of 1975
39. Law no. 354 of 26 July 1975 provides, inter alia, for the possibility of early release. The relevant part of section 54 (1) reads as follows:
“In order to facilitate reintegration into society, convicted prisoners who take part in the re-education scheme may have their sentence reduced by forty-five days for every six months served ...”
III. RELEVANT INTERNATIONAL AND EUROPEAN DOCUMENTS
A. International Covenant on Civil and Political Rights (adopted by the General Assembly of the United Nations on 16 December 1966)
40. The relevant provisions of the International Covenant on Civil and Political Rights read as follows:
Article 10
“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
... 3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation ...”
Article 25
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status] and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.”
B. United Nations Human Rights Committee
41. In its General Comment no. 25 (1996) on Article 25 of the International Covenant on Civil and Political Rights, the Human Rights Committee expressed the following view:
“14. In their reports, States parties should indicate and explain the legislative provisions which would deprive citizens of their right to vote. The grounds for such deprivation should be objective and reasonable. If conviction for an offence is a basis for suspending the right to vote, the period of such suspension should be proportionate to the offence and the sentence. Persons who are deprived of liberty but who have not been convicted should not be excluded from exercising the right to vote.”
42. In its views on the Yevdokimov and Rezanov v. Russian Federation case (21 March 2011, no. 1410/2005), the Human Rights Committee, referring to the Court’s judgment in Hirst (no. 2) [GC] (cited above), stated:
“ 7.5 ... the State party, whose legislation provides a blanket deprivation of the right to vote to anyone sentenced to a term of imprisonment, did not provide any arguments as to how the restrictions in this particular case would meet the criterion of reasonableness as required by the Covenant.

Article of the Convention at issue: Article 3
Outcome: no_violation