Published on 30 June 2025
FIRST SECTION
Application no. 9855/23
Giuseppe DESANTIS
against Italy
lodged on 23 February 2023
communicated on 11 June 2025
SUBJECT MATTER OF THE CASE
The applicant is a certified accountant. The application concerns the access of the Revenue Police (Guardia di finanza) to his professional office on 2 February 2023, in the context of a tax investigation.
The authorisation of access to, and search of, the applicant’s office (ordine di accesso, ispezione e verifica; hereafter “the warrant”) was granted pursuant to Articles 52 and 63 of Presidential Decree no. 633 of 1972 and Article 33 of Presidential Decree no. 600 of 1973 by the Head of the Revenue Police in Cerignola.
The applicant claims that the warrant at issue is not subject to a direct appeal, pursuant to Article 19 of Decree no. 471 of 1997. According to him, it can be challenged only at the end of the tax assessment proceedings, provided that a final administrative act (avviso di accertamento del tributo) has been adopted, and provided that it has been based on information and evidence gathered through the search.
The applicant complains under Article 8 of the Convention of the allegedly unlawful and disproportionate search of his professional premise, and, under Articles 8 and 13 of the Convention, of the lack of an effective judicial or independent review of the warrant. In particular, he complains:
- of the lack of an ex ante judicial scrutiny of the lawfulness of the warrant, as the authorisation to access his office and obtain the documents was adopted by the Guardia di finanza;
- of the absence of any reasonable suspicion that a tax offence had been committed, which might have justified the interference with his rights under Article 8;
- that the search warrant was extremely vague, as it did not indicate the evidence already available to the authorities nor predetermined the scope and purpose of the search, in particular by indicating the items that the authorities expected to find as evidence of the alleged offences being investigated;
- of the absence of special procedural safeguards; and
- of the lack of an effective remedy to challenge the alleged breach of his rights to home and professional life.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his “home” and “private life”, within the meaning of Article 8 § 1 of the Convention (see André and Another v. France, no. 18603/03, §§ 36‑37, 24 July 2008, and Sabani v. Belgium, no. 53069/15, §§ 46-47, 8 March 2022) and with the applicant’s duty of legal confidentiality (see, mutatis mutandis, Kruglov and Others v. Russia, nos. 11264/04 and 15 others, § 137, 4 February 2020)?
2. If so, was the interference “in accordance with the law” in terms of Article 8 § 2 of the Convention, that is to say, in accordance with a law which was accessible to the applicant, foreseeable in its application and consequences and compatible with the rule of law (see Tortladze v. Georgia, no. 42371/08, § 56, 18 March 2021, and Brazzi v. Italy, no. 57278/11, § 39, 27 September 2018). With regard to the latter condition, did the said law provide some protection against the allegedly arbitrary interferences with the applicant’s Article 8 rights (see Ben Faiza v. France, no. 31446/12, § 59, 8 February 2018)? In particular:
(i) Did the law establish an ex ante independent or judicial supervision of the warrant, capable of reviewing its lawfulness and/or limiting the investigating authorities’ discretion to assess the expediency and scope of the search (see Heino v. Finland, no. 56720/09, § 40, 15 February 2011)?
(ii) Did the law give the applicant and the authorities an adequate indication as to the circumstances and conditions in which the authorities are entitled to resort to measures affecting the applicant’s Article 8 rights (see Ben Faiza, cited above, § 59, and Budak v. Turkey, no. 69762/12, § 43, 16 February 2021)?
(iii) Did it provide for an ex post facto judicial review of the lawfulness of, and justification for, the warrant (see Kuzminas v. Russia, no. 69810/11, § 24, 21 December 2021, and Gutsanovi v. Bulgaria, no. 34529/10, § 222, 15 October 2013)?
3. If so, was the interference “necessary in a democratic society” and proportionate to the aim pursued, within the meaning of Article 8 § 2 of the Convention (see, among others, K.S. and M.S. v. Germany, no. 33696/11, § 44, 6 October 2016)? In particular:
(i) Was the warrant sufficiently reasoned and specific in its content? Did it contain an explicit and detailed reference of the offences being investigated and of the evidence already available to the authorities (see Leotsakos v. Greece, no. 30958/13, § 49, 4 October 2018, and Modestou v. Greece, no. 51693/13, §§ 45 et seq., 16 March 2017)?
(ii) Was the scope and purpose of the search sufficiently precise and limited, with an indication in the warrant of the items sought as evidence of the offences being investigated (see Modestou, §§ 46 et seq., and Gutsanovi, § 224, both cited above)?
(iii) Taking into account Article 12 § 3 (b) of Legislative Decree no. 546 of 1992, which extends the applicability of the legal professional privilege to certified accountants who practice as representatives in proceedings before tax courts, had an independent observer been present during the search of the applicant’s professional office in order to ensure that materials subject to professional secrecy would not be removed? If no such observer attended the search, was there a need for such an observer to be present (see Moulin v. France, no. 37104/06, §§ 71 and 73, 23 November 2010; Golovan v. Ukraine, no. 41716/06, §§ 62-63, 5 July 2012; Leotsakos, cited above, § 42; and Kruglov and Others, cited above, § 42)?
4. Did the applicant have access to an effective remedy, in accordance with Article 13 of the Convention, in order to challenge the lawfulness of, and justification for, the warrant?