Decision of the Court of Cassation, I Criminal Section, No. 44193 of 11 October 2016


Diritto penale contemporaneo

In 2015, the ECHR Court decided on the case Contrada vs. Italy by ruling that sentencing the claimant for the offense of ‘concorso esterno in associazione mafiosa’ (‘external contribution to mafia association’) was in violation of Article 7 of the ECHR (nulla poena sine lege). For the ECHR Court, Italian criminal legislation did not provide said offense. The offense resulted from the relevant jurisprudence of Italian courts, which has developed, however, after the facts of the ‘Contrada case’ took place. The decision of the ECHR Court was later invoked in order to obtain from the Court of cassation the revocation of a final sentence issued in another criminal proceeding (against Mr. Dell’Utri) for the same offense. The recourse was grounded on Article 46 of the ECHR, under which States parties must conform to the ECHR Court’s final decisions in any case to which they are parties. The Italian Constitutional Court has clarified, in its decision No. 49 of 2015, under what circumstances the obligation to conform to final decisions of the ECHR Court extends to further cases, in addition to the one decided by the same Court. These circumstances were not present in the case at hand, because there was not ‘absolute identity’ between the Contrada and the Dell’Utri cases as is required for so-called ‘erga alios’ application of ECHR Court’s decisions.

  • See also:

    Decision of the Court of Cassation, V Criminal Section, No. 42996 of 14 September 2016, Decision of the Constitutional Court No. 49 of 14 January 2015

  • Original language: Italiano