Decision of the Court of Appeal of Caltanissetta 18 November 2015

With this decision, concerning so-called ‘Contrada affaire’, the Court of Appeal in Caltanissetta examined the possibility of revoking a final decision of conviction for the offense of ‘concorso esterno in associazione mafiosa’ (i.e., the fact of supporting mafia association without participating in it in proper sense) because of a subsequent decision of the ECHR Court relevant to the case (Article 46 of the ECHR). The application for revocation grounded its basis on, among others, the judgment of the ECHR Court according to which Italy had failed to respect the principles of non-retroactivity and of law certainty in criminal matters ex Article 7 of the ECHR (Contrada v. Italy, 14 April 2015). This because the offense of ‘concorso esterno’ is not expressly provided for in the criminal code, but has developed as an effect of interpretation by Italian courts of Articles 110 and 416 bis of the criminal code. The Appeal Court found, however, that the ECHR Court did not state, in its decision, that an offense of ‘concorso esterno’ does not exist in the Italian legal order, as argued by the defendant. Rather, the Italian judges had omitted to duly considered whether the accused had, at the relevant time, an effective opportunity of knowing that a criminal sanction could be imposed upon him. On these grounds, the Court of Appeal rejected the application because the judgment of the ECHR Court was not a sufficient reason for revocation.