Published on 25 July 2022
FIRST SECTION
Application no. 40607/19
Matteo FERRIERI against Italy
and 2 other applications
(see list appended)
communicated on 7 July 2022
SUBJECT MATTER OF THE CASES
The applications concern tax investigating authorities’ access to the applicants’ banking data regarding movements, transactions and any other disposition that could be related to the applicants or traced back to them. The authorisations to obtain such information directly from the banks was issued pursuant to Article 51 § 2 (7) of Presidential Decree no. 633 of 1972 and Article 32 § 1 (7) of Presidential Decree no. 600 of 1973. The applicants have not been notified by tax authorities of the authorisation. They have received letters from the banks informing them that they had received such requests from the investigating authority and that they were going to comply with their legal obligation to provide the requested information.
The applicants complain under Article 8 of the Convention taken alone and in conjunction with Article 13 of the Convention that the measure has interfered with their private life, it has neither been necessary in a democratic society nor proportionate, as it has not been taken by a judicial authority. Nor was the measure subject to ex ante or ex post facto judicial review, and it lacked proper reasoning.
The applicants further complain under Article 6 § 1 of the Convention and under Article 13 of the Convention that they did not have effective access to a court to contest the alleged breach of their Article 8 rights.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention (see Liebscher v. Austria, no. 5434/17, § 31, 6 April 2021, and G.S.B. v. Switzerland, no. 28601/11, § 51, 22 December 2015)? If so, was the interference in conformity with the requirements of Article 8 § 2 of the Convention? In particular:
(a) 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 applicants, foreseeable in its application and consequences and compatible with the rule of law (Breyer v. Germany, no. 50001/12, § 83, 30 January 2020)? As regards the latter condition, did the said law provide protection against the allegedly arbitrary interferences with the applicants’ Article 8 rights (Ben Faiza v. France, no. 31446/12, § 56 et seq., 8 February 2018)? In particular:
(i) Did it establish an ex ante independent or judicial supervision of the decisions authorising searches of banking data and information, capable of assessing the lawfulness of the measure and/or limiting the investigating authorities discretion to assess the expediency and scope of the searches (M.N. and Others v. San Marino, no. 28005/12, §§ 73 and 77, 7 July 2015)?
(ii) Did it give the applicants and the authorities a sufficiently clear indication of the scope of discretion conferred on the competent authorities and the manner of its exercise, in particular by requiring the existence of clear suspicions against the applicant (M.N. and Others, cited above, § 78)?
(iii) Did it provide for an ex post facto judicial review of the lawfulness of, and justification for, the searches of banking data and information (M.N. and Others, cited above, §§ 78 and 81, 7 July 2015)?
(b) Was the interference “necessary in a democratic society” and proportionate to the aim pursued, within the meaning of Article 8 § 2 of the Convention (M.N. and Others, cited above, § 76 et seq.)? In particular, were the decisions authorising the searches sufficiently reasoned (Sommer v. Germany, no. 73607/13, §§ 57 and 61, 27 April 2017)?
2. Did the applicants have access to a court for the determination of their civil rights, in accordance with Article 6 § 1 of the Convention (see, mutatis mutandis, Société Canal Plus and Others v. France, no. 29408/08, § 40, 21 December 2010; Compagnie des gaz de pétrole Primagaz v. France, no. 29613/08, § 30, 21 December 2010; Ravon and Others v. France, no. 18497/03, §§ 28, 31 and 33, 21 February 2008), or to an effective remedy, in accordance with Article 13 of the Convention, in order to challenge the lawfulness of, and justification for, the decisions authorising the searches of banking data and information?
3. Having regard to the circumstances of the cases, are such situations indicative of an underlying systemic problem arising from the defective legal framework governing searches of banking data and information in the context of tax assessment proceedings, which could call for indication of general measures under Article 46 of the Convention?
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
40607/19
Ferrieri v. Italy
23/07/2019
Matteo FERRIERI
1965
Cerignola
Italian
Cristiano STASI
2.
40608/19
Paparella v. Italy
23/07/2019
Chiara PAPARELLA
1971
Cerignola
Italian
Ornella BONASSISA
3.
34583/20
Bonassisa v. Italy
01/08/2020
Ornella BONASSISA
Foggia
Italian
Ornella BONASSISA