Published on 2 June 2025
FIRST SECTION
Application no. 22074/24
Faustino GIACCHETTO and Others
against Italy
lodged on 23 July 2024
communicated on 13 May 2025
SUBJECT MATTER OF THE CASE
The application concerns the preventive confiscation of the applicants’ assets, ordered by the competent 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).
On 21 June 2018 the Palermo District Court ordered the confiscation of the applicants’ assets. The measure was partly confirmed on 18 February 2022 by the Palermo Court of Appeal. However, by judgment no. 11988 of 21 March 2023, the Court of Cassation upheld the applicants’ appeal on points of law, quashed the measure, and ordered the restitution of the assets to the applicants. It observed that under Article 27 § 6 of Decree no. 159/2011 the confiscation order ceased to have effect given that the appeal proceedings had not been concluded within eighteen months from the date of the lodging of the appeal.
On 23 March 2023 the Public Prosecutor requested the Palermo District Court to order the seizure and the subsequent confiscation of the same assets, relying on the well-established case-law pursuant to which Article 27 § 6 of Decree no. 159/2011 did not preclude the institution of new preventive proceedings aimed at confiscating the same assets (see, for example, Court of Cassation, no. 41735 of 26 June 2019, relying on Court of Cassation, Joint Sections, judgment no. 36 of 13 December 2000, and, more recently, Court of Cassation, judgment no. 17445 of 26 March 2024). The applicants requested the Palermo District Court to raise before the Constitutional Court an issue regarding the constitutionality of the cited provision, which, in their view, breached the right to reasonable length of proceedings and to the peaceful enjoyment of possessions as guaranteed, respectively, by Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. On 27 March 2024 the Palermo District Court dismissed the applicants’ request and ordered the confiscation of the applicants’ assets.
The applicants did not lodge an appeal against the decision. They argue that, on the basis of the cited case-law of the Court of Cassation, such remedy would not have had any reasonable prospect of success.
The applicants complain under Article 6 § 1 of the Convention of an alleged breach of the right to reasonable length of proceedings. In this respect, they argue that the institution of fresh preventive proceedings following the discontinuance of the previous ones on the basis of the provision enshrined in Article 27 § 6 of Decree no. 159/2011 allows the domestic authorities to continue sine die such proceedings.
Relying on Article 1 of Protocol No. 1, the applicants further complain of an alleged breach of the right to the peaceful enjoyment of possessions. In particular, they argue that the possibility of reinstituting preventive proceedings following their discontinuance produces a state of uncertainty which offsets the fair balance that must exist between the demands of the general interest and the interests of the individuals concerned. In this respect, relying also on Article 6 § 1 of the Convention, the applicants complain of the absence of reasoning of the domestic courts’ decisions.
QUESTIONS TO THE PARTIES
1. As regards the applicants’ complaint raised under Article 6 § 1 of the Convention concerning the length of the proceedings, have they exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, considering that the two sets of confiscation proceedings were formally different, was the procedure established under Law no. 89 of 24 March 2001, known as the “Pinto Act”, available and effective in the circumstances of the present case?
If not, was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention (see, mutatis mutandis, Gherardi Martiri v. San Marino, no. 35511/20, §§ 124‑26, 15 December 2022)?
2. 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 (see, mutatis mutandis, Dimitrovi v. Bulgaria, no. 12655/09, § 46, 3 March 2015)? In particular:
(a) did the applicable legal framework provide for guarantees against arbitrariness?
(b) did the interference impose an excessive individual burden on the applicants and were the domestic decisions sufficiently reasoned in this respect?
APPENDIX
List of applicants:
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
Representative’s name
Location
1.
Faustino GIACCHETTO
1963
Italian
Santa Flavia
Stefano GIORDANO
Palermo
2.
Concetta ARGENTO
1963
Italian
Santa Flavia
3.
Carmelo Marco GIACCHETTO
1993
Italian
Santa Flavia