Published on 9 October 2023
FIRST SECTION
Application no. 47269/18
Claudia GAROFALO 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 first, third and fourth applicants are family members ‑ respectively ‑ wife, mother and son of M.D.B., the second applicant. The latter has been declared socially dangerous pursuant to Article 1 § 1 (a) and (b) of Decree no. 159/2011 (pericolosità generica or “ordinary dangerousness”). As for the first, third and fourth applicants, the domestic courts considered that their assets were formally owned by them, but actually belonged to M.D.B. (intestazione fittizia or “fictitious ownership”). They further considered that both the assets formally owned by the first, third and fourth applicants and those formally owned by M.D.B. were disproportionate to the family’s lawful income and that their lawful origin had not been demonstrated.
The second applicant complains under Article 4 of Protocol No. 7 to the Convention of the alleged violation of the ne bis in idem principle, as in previous preventive proceedings against him the relevant court found that he was not a socially dangerous individual. Since new preventive proceedings were instituted in 2013, he argues that he was tried twice on the basis of the same facts.
As regards applications nos. 47269/18, 47793/18 and 47996/18, the applicants complain under Article 7 of the Convention of the confiscation of their assets, as the measure was imposed on them notwithstanding that they have not committed any criminal offence. On the same grounds, they further complain of the alleged violation of the presumption of innocence guaranteed by Article 6 § 2 of the Convention, submitting that they have been compelled to assume liability for crimes allegedly committed by M.D.B. and not by them.
QUESTIONS TO THE PARTIES
1. Taking into account the characterisation of the contested measure under domestic law and case-law (compare, inter alia, Court of Cassation, judgments no. 18 of 3 July 1996, no. 57 of 8 January 2006, no. 39204 of 17 May 2013, and no. 4880 of 2 February 2015; contra judgment no. 14044 of 25 March 2013; see also, inter alia, Constitutional Court, judgments no. 21 of 9 February 2012, and no. 24 of 27 February 2019), its nature and purpose, the procedures involved in its imposition and implementation, and its severity, did the confiscation applied to the applicants pursuant to Article 24 of Decree no. 159/2011 amount to a criminal “penalty” or “punishment” within the meaning of Article 7 § 1 the Convention (compare Arcuri v. Italy (dec.), no. 52024/99, § 2, ECHR 2001-VII, Capitani and Campanella v. Italy, no. 24920/07, § 37, 17 May 2011, Gogitidze and Others v. Georgia, no. 36862/05, § 121, 12 May 2015, and, mutatis mutandis, Balsamo v. San Marino, nos. 20319/17 and 21414/17, § 58 et seq., 8 October 2019, Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, §§ 306‑308, 13 July 2021 and contrast with G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 214 et seq., 28 June 2018)?
If so:
(a) as regards applications nos. 47269/18, 47793/18 and 47996/18, were the requirements of Article 7 of the Convention satisfied, taking into account that the first, third and fourth applicants have not been convicted of any criminal offence?
(b) as regards application no. 47426/18, has there been a violation of Article 4 of Protocol No. 7 to the Convention, on account of the fact that in the previous preventive proceedings instituted against the second applicant the relevant court found that he was not a socially dangerous individual?
2. As regards applications nos. 47269/18, 47793/18 and 47996/18, does the prosecutor’s application for a confiscation order pursuant to Article 24 of Decree no. 159/2011 amount to the bringing of a “criminal charge” within the meaning of Article 6 § 2 of the Convention (see Phillips v. the United Kingdom, no. 41087/98, §§ 32-35, ECHR 2001‑VII, and Balsamo v. San Marino, cited above, § 73)?
If so, has there been a violation of the presumption of innocence, guaranteed by Article 6 § 2 of the Convention?
APPENDIX
List of applications:
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
47269/18
Garofalo v. Italy
27/09/2018
Claudia GAROFALO
1969
Latina
Italian
Carla BERTINI
2.
47426/18
De Bellis v. Italy
27/09/2018
Maurizio DE BELLIS
1967
Latina
Italian
Carla BERTINI
3.
47793/18
Rito v. Italy
27/09/2018
Antonia RITO
1940
Latina
Italian
Carla BERTINI
4.
47996/18
De Bellis v. Italy
27/09/2018
Martina DE BELLIS
1996
Latina
Italian
Carla BERTINI