Published on 30 October 2023
FIRST SECTION
Applications nos. 47284/16 and 84604/17
Luigi EPISCOPO against Italy
and Nelso BASSANI against Italy
lodged on 3 August 2016 and 7 December 2017 respectively
communicated on 9 October 2023
SUBJECT MATTER OF THE CASE
The applications concern the confiscation of the applicants’ assets, which were considered to be direct proceeds of crime (confisca diretta), pursuant to Article 322 ter of the Italian Criminal Code (“CC”).
As regards case no. 84604/17 Bassani v. Italy, the applicant was convicted by the Bassano del Grappa District Court of participating in a criminal organisation and making fraudulent tax declarations, under Article 416 CC and Article 2 of Legislative Decree no. 74/2000. The District Court also ordered the confiscation of the amounts deposited on two bank accounts and of a life insurance contract, which were considered to be the direct proceeds of the committed crime, pursuant to Article 1 § 143 of Law no. 244/2007 and Article 322 ter CC.
The Venice Court of Appeal acquitted the applicant of participation in a criminal organisation and discontinued the proceedings as statute-barred in respect of making fraudulent tax declaration; nevertheless, it confirmed the confiscation. That judgment was ultimately upheld by the Court of Cassation on 9 June 2017.
The applicant maintains that the confiscation of assets lacked a foreseeable legal basis, in breach of Article 7 of the Convention. He states that, at the relevant time and when the criminal proceedings were initiated, there were conflicting decisions concerning the applicability of direct confiscation in case of discontinuance of the proceedings and that such conflict has been resolved only later, by the Court of Cassation judgment no. 31617 of 26 June 2015. He also complains that the confiscation was carried out without a prior conviction.
Furthermore, the applicant complains, under Article 1 of Protocol No. 1 to the Convention, of a deprivation of property without a foreseeable legal basis.
As regards case no. 47284/16 Episcopo v. Italy, the applicant was convicted by the Sala Consilina District Court of several crimes, including fraud under Article 640 bis CC. According to the first-instance judgment, the crimes committed by the applicant were aimed at obtaining public funds for the realisation of a tourist accommodation facility by the company he directed, P. s.r.l.
The Salerno Court of Appeal discontinued the proceedings as statute-barred and ordered the confiscation of the tourist accommodation facility, which was considered to be the direct proceed of the committed crime, pursuant to Articles 640 quater and 322 ter CC. That judgment was ultimately upheld by the Court of Cassation on 26 February 2016.
Under Article 7 of the Convention, the applicant raises the same complaints as in the previous case.
Additionally, the applicant complains, under Article 6 § 1 of the Convention, of the lack of legal certainty due to the above-mentioned conflicting decisions; under Article 6 § 2 of the Convention, of a breach of his presumption of innocence as a consequence of the confiscation following discontinuance of proceedings; and under Article 8 of the Convention, as the confiscation allegedly affected his reputation.
QUESTIONS TO THE PARTIES
COMMON QUESTION FOR BOTH APPLICATIONS
1. Can the confiscation of direct proceeds of crime, as prescribed by Article 322 ter CC, be considered a “penalty” within the meaning of Article 7 § 1 of the Convention (see, for general principles, G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 211 ss., 28 June 2018)?
2. If so, was the confiscation of direct proceeds of crime following discontinuance of proceedings in the present cases based on a sufficiently foreseeable law, as interpreted by the domestic courts?
CASE SPECIFIC QUESTIONS
As regards case no. 47284/16 Episcopo v. Italy:
3. Has the principle of legal certainty, guaranteed by Article 6 § 1 of the Convention, been respected? In particular, were there profound and long‑standing differences in the case-law of the Court of Cassation concerning the applicability of the confiscation of direct proceeds of crime, as provided by Article 322 ter CC, if criminal proceedings have been discontinued as statute-barred (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016, and Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, §§ 49-58, 20 October 2011)?
4. Considering that the proceedings against the applicant were discontinued as statute-barred, did the decisions of the domestic courts reflect the opinion that the applicant was guilty, notwithstanding the absence of a formal finding of guilt? If so, is the substantial declaration of guilt and the subsequent confiscation of direct proceeds of crime compatible with the presumption of innocence, guaranteed by Article 6 § 2 of the Convention (see G.I.E.M. S.R.L. and Others, cited above, § 317, and, mutatis mutandis, Geerings v. the Netherlands, no. 30810/03, § 47, 1 March 2007) ?
As regards case no. 84604/17 Bassani v. Italy:
5. Has the applicant been deprived of his possessions in accordance with a sufficiently foreseeable law, as required by Article 1 of Protocol No. 1 to the Convention?
APPENDIX
List of applications:
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
47284/16
Episcopo v. Italy
03/08/2016
Luigi EPISCOPO
1956
Polla
Italian
Enrico TAGLE
2.
84604/17
Bassani v. Italy
07/12/2017
Nelso BASSANI
1960
Arsiè
Italian
Maurizio PANIZ
Full & Egal Universal Law Academy