Published on 9 October 2023
FIRST SECTION
Application no. 973/21
FRAROVI S.A.S. DI ROVINELLI THOMAS & C. against Italy
and 3 other applications
(see list appended)
communicated on 18 September 2023
SUBJECT MATTER OF THE CASE
The applications concern the confiscation of the applicants’ assets, ordered by the domestic courts pursuant to Article 24 of Legislative Decree no. 159 of 6 September 2011 (Codice delle leggi antimafia e delle misure di prevenzione, “Decree no. 159/2011”).
The applicants are family members of G.R., and a company administered and owned by them.
G.R. was declared socially dangerous pursuant to Article 1 § 1 (b) of Decree no. 159/2011 (pericolosità generica or “ordinary dangerousness”), as he had committed several crimes which generally entail unjust enrichment (such as frauds, thefts, and handling stolen goods). The domestic courts considered that the confiscated assets were formally owned by the applicants, but actually belonged to G.R. (intestazione fittizia or “fictitious ownership”). They further considered that such assets were disproportionate to G.R.’s and the applicants’ lawful incomes and that their lawful origin had not been demonstrated.
Relying on Article 1 of Protocol No. 1 to the Convention, the applicants complain of the alleged violation of their right to the peaceful enjoyment of possessions. They argue that the measure was not in accordance with the principle of lawfulness, in terms of the Convention, and was not proportionate to the aim pursued.
With regard to the legal basis, they argue that it did not allow to determine in a foreseeable way the meaning of the expression “lawful origin” of the assets. In particular, they argue that it was not clear in the case-law whether third parties in preventive proceedings could rely, in order to demonstrate that the owned assets and their “lawful income” were commensurate, on revenues which had been allegedly legally obtained but which had not been declared to the Tax Authority.
The applicants further argue that the measure was not proportionate to the aim pursued. In their view, they suffered an excessive burden on account of the reversal of the burden of proof to their detriment, as: (i) not all the crimes on which the declaration of social dangerousness of G.R. has been grounded were sufficiently serious and entailed an unjust enrichment; (ii) the domestic authorities merely relied on suspicions and stereotyped arguments in order to conclude that their assets belonged to G.R.; and (iii) they were not afforded, for several reasons, a reasonable opportunity of putting their arguments before the domestic courts in order to discharge their burden of proof.
The applicants further complain under Article 6 of the Convention of a violation of the right to a fair trial. They argue that the adversarial principle and the equality of arms have been violated and that they were put in a situation of substantial disadvantage vis-à-vis the public prosecutor.
QUESTIONS TO THE PARTIES
1. Was the interference with the applicants’ peaceful enjoyment of possessions in accordance with the requirements of Article 1 of Protocol No. 1 to the Convention? In particular:
(a) was the interference in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1, 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? In answering the question, the parties are requested to refer, inter alia, to the following points:
(i) whether the notion of “lawful income” was sufficiently clear and foreseeable, with regard to an income deriving from lawful business or professional activities that have not been declared to the competent tax authorities (see, mutatis mutandis, Dimitrovi v. Bulgaria, no. 12655/09, § 47, 3 March 2015); and
(ii) whether the applicable legal framework provided a statute of limitation for instituting preventive proceedings (Dimitrovi, cited above, § 46, and, mutatis mutandis, Camelia Bogdan v. Romania, no. 36889/18, § 38, 20 October 2020);
(b) did the reversal of the burden of proof as to the lawful origin of the assets impose an excessive burden on the applicants? In answering the question, the parties are requested to refer, inter alia, to the following points:
(i) whether the nature and severity of the crimes on which the declaration of social dangerousness of G.R. has been grounded justified the presumption that the applicants’ assets were proceeds of unlawful activities (compare Bongiorno and Others v. Italy, no. 4514/07, § 45, 5 January 2010, Gogitidze and Others v. Georgia, no. 36862/05, § 107, 12 May 2015, Telbis and Viziteu v. Romania, no. 47911/15, §§ 74 and 77, 26 June 2018, and Balsamo v. San Marino, nos. 20319/17 and 21414/17, § 91, 8 October 2019);
(ii) whether domestic authorities showed that the confiscated assets belonged to G.R in a reasoned manner, on the basis of an objective assessment of the factual evidence and without relying on a mere suspicion or stereotyped arguments (see Gogitidze and Others, cited above, § 122, and Balsamo, cited above § 91);
(iii) whether the applicants were afforded a reasonable opportunity of putting their arguments before the domestic courts and whether the latter duly examined the evidence submitted by the applicants (Telbis and Viziteu v. Romania, no. 47911/15, § 78, 26 June 2018), considering, inter alia, that: pursuant to Article 23 § 2 of Decree no. 159/2011, the applicants, as third parties, could intervene in the proceedings exclusively once their assets had been already seized; that the applicants were to prove the lawful origin of their assets many years after their acquisition had taken place; and that the applicants could not invoke, in order to demonstrate the lawful origin of their assets, their income allegedly deriving from lawful activities that they had not declared to the Tax Authority.
2. Did the applicant have a fair trial, in accordance with Article 6 § 1 of the Convention? In particular, were they afforded a reasonable opportunity to present their case under conditions that did not place them at a disadvantage vis-à-vistheir opponent? Did the domestic courts duly take into account the applicant’s arguments and were their judgments sufficiently reasoned?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth/Registration
Place of Residence
Nationality
Represented by
1.
973/21
Frarovi S.a.s. di Rovinelli Thomas & C. v. Italy
04/12/2020
FRAROVI S.A.S. DI ROVINELLI THOMAS & C.
Senigallia
Italian
Carlo ZACCAGNINI
2.
1001/21
Rovinelli v. Italy
04/12/2020
Thomas ROVINELLI
1970
Senigallia
Italian
Carlo ZACCAGNINI
3.
1227/21
Rovinelli v. Italy
04/12/2020
Monica ROVINELLI
1966
Senigallia
Italian
Carlo ZACCAGNINI
4.
1260/21
Sanchioni v. Italy
04/12/2020
Giuliana SANCHIONI
1942
Senigallia
Italian
Carlo ZACCAGNINI