Information Note on the Court’s case-law 219
June 2018
G.I.E.M. S.r.l. and Others v. Italy [GC] - 1828/06, 34163/07 and 19029/11
Judgment 28.6.2018 [GC]
Article 7
Article 7-1
Nulla poena sine lege
Compulsory confiscation of “unlawfully developed” land, regardless of any criminal liability: violation, no violation
Article 1 of Protocol No. 1
Peaceful enjoyment of possessions
Compulsory confiscation of “unlawfully developed” land, regardless of any criminal liability: violation
Facts – The applicants are four companies with legal personality and a director of the fourth company (Mr Gironda).
Under Italian planning law, where the offence of “unlawful site development” is materially made out, the criminal court is bound, whether or not the defendants have been convicted, to confiscate the developed land (and any buildings thereon), even when it is in the possession of a third party (except one proving to have acted in good faith).
The applicants complained that they had been affected by confiscation measures without having been formally convicted (either because neither the company nor its directors had ever been prosecuted; or because only the directors had been prosecuted; or because the criminal proceedings had become time-barred – this being the case of Mr Gironda).
Law – Article 7 of the Convention
(a) Applicability – A review of the question in the light of the following criteria led the Grand Chamber to confirm the conclusion reached by the Chamber in Sud Fondi srl and Others v. Italy (dec.) (75909/01, 30 August 2007, Information Note 100): as the confiscation measures could be regarded as “penalties” within the meaning of Article 7 of the Convention, that Article was applicable, even in the absence of criminal proceedings for the purposes of Article 6.
That conclusion did not rule out the possibility for the domestic authorities to impose “penalties” (within the autonomous meaning of that concept) through procedures other than those classified as “criminal” under domestic law.
(i) Had the confiscations been imposed following convictions for criminal offences? – Even though no prior criminal conviction had been handed down against the applicant companies or their representatives, the impugned confiscation measure was nevertheless attached to a “criminal offence” based on general legal provisions. In any event, a different conclusion in relation to this criterion would not in itself be decisive.
(ii) Classification of confiscation in domestic law – Article 44 of the Construction Code, which governed the confiscation measure at issue in the present case, bore the heading “Criminal sanctions”.
(iii) The nature and purpose of the confiscation measure – The nature and purpose of the confiscation of the applicants’ property had been punitive, as the confiscation measure was a mandatory sanction, not subject to proof of genuine harm or a specific risk for the environment, and could thus be applied even in the absence of any actual activity to transform the land.
(iv) The severity of the effects of the confiscation – The impugned confiscation measure was a particularly harsh and intrusive sanction. Within the boundaries of the site concerned, it applied not only to the land that was built upon (or was intended to be built upon) or in respect of which a prohibited change of use was found, but also to all the other plots of land making up the site. Moreover, no compensation was due.
(v) Procedures for adopting and enforcing the confiscation measure – The measure was ordered by the criminal courts. The Court was not persuaded by the argument that the criminal courts acted “in the place of the administrative authority”. The criminal court’s role was not simply to verify that no site development had been carried out in the absence of or in breach of planning permission, but also to ascertain whether the development, authorised or not, was compatible with all the other applicable rules (the planning regulations). In other words, the criminal court acted independently of the administrative authority, whose position it could disregard.
(See also Varvara v. Italy, 17475/09, 29 October 2013, Information Note 167)
(b) Compliance with the safeguards of Article 7
(i) Whether the impugned confiscation measures required a mental element – The Grand Chamber confirmed that Article 7 required, for the purposes of punishment, a mental link demonstrating an element of personal liability on the part of the perpetrator of the offence, without which the penalty could not be regarded as foreseeable.
Nevertheless, this requirement did not preclude the existence of certain forms of objective liability stemming from presumptions of liability. In principle the Contracting States remained free to penalise a simple or objective fact as such, irrespective of whether it resulted from criminal intent or from negligence. Presumptions of fact or of law were acceptable, provided they did not have the effect of making it impossible for an individual to exonerate himself from the accusations against him. As the Convention had to be read as a whole, those principles from the Article 6 § 2 case-law also applied under Article 7.
(ii) The absence of a formal “conviction” – Article 7 precluded the imposition of a criminal sanction on an individual without his personal criminal liability being established and declared beforehand. Otherwise the principle of the presumption of innocence guaranteed by Article 6 § 2 of the Convention would also be breached.
The Court, emphasising that its judgments all had the same legal value (as their binding nature and interpretative authority did not depend on the formation by which they were rendered), stated that the Varvara judgment did not, however, lead to the conclusion that confiscation measures for unlawful site development necessarily had to be accompanied by convictions decided by “criminal” courts within the meaning of domestic law. The applicability of Article 7 did not have the effect of imposing the “criminalisation” by States of procedures which, in exercising their discretion, they had not classified as falling strictly within the criminal law. It was necessary and sufficient for the declaration of criminal liability to comply with the safeguards provided for in Article 7, provided it stemmed from proceedings complying with Article 6.
The Court nevertheless had to ascertain whether the impugned confiscation measures at least required a formal declaration of criminal liability in respect of the applicants. Since the applicant companies had not been prosecuted themselves, the question whether the declaration of criminal liability required by Article 7 had to meet formal requirements arose only in respect of Mr Gironda.
It was necessary to take into account, first, the importance in a democratic society of upholding the rule of law and public trust in the justice system, and secondly, the object and purpose of the rules applied by the Italian courts. The relevant rules sought to prevent the impunity which would stem from a situation where, by the combined effect of complex offences and relatively short limitation periods, the perpetrators of such offences systematically avoided prosecution and, above all, the consequences of their misconduct.
In the Court’s view, where the courts found that all the elements of the offence of unlawful site development were made out (as in Mr Gironda’s case), while discontinuing the proceedings solely on account of statutory limitation – and provided that the rights of the defence were respected –, those findings could be regarded as constituting, in substance, the “conviction” required by Article 7 for the imposition of a penalty.
(iii) Whether the confiscation measure could be imposed on the applicant companies, which were not parties to the proceedings – Having regard to the principle that a person could not be punished for an act engaging the criminal liability of another, a confiscation measure that was applied, as in the present case, to individuals or legal entities which were not parties to the proceedings was incompatible with Article 7 of the Convention.
Since Italian law, as in force at the time, did not provide for the liability of legal entities, limited-liability companies could not, as such, be “parties” to criminal proceedings, in spite of their distinct legal personality. Accordingly, they could not be legally “represented” in the context of the relevant criminal proceedings in the present case. The companies thus remained “third parties” in relation to those proceedings. Nevertheless the acts (and ensuing liability) of their respective legal representatives had been directly attributed to those companies.
Conclusions: violation in respect of the applicant companies (fifteen votes to two); no violation in respect of Mr Gironda (ten votes to seven).
Article 1 of Protocol No. 1: The complaint was examined under the second paragraph of that provision.
As to the aim pursued, an examination of the current state of the confiscated property made it doubtful that the confiscation had actually contributed to the protection of the environment.
Any interference with the right to the peaceful enjoyment of one’s possessions had to take account of the following:
(i) It had to be proportionate, as assessed in the light of a number of factors: the possibility of less restrictive alternative measures such as the demolition of structures that were incompatible with the relevant regulations or the annulment of the development plan; the limited or unlimited nature of the sanction (depending on whether it affected both developed and undeveloped land, and even areas belonging to third parties); and the degree of culpability or negligence on the part of the applicants (or the relationship between their conduct and the offence in question).
(ii) Procedural safeguards, affording the individual a reasonable opportunity of putting his or her case and discussing the relevant matters, in adversarial proceedings that complied with the principle of equality of arms.
The automatic application of the impugned confiscation measure – save in respect of bona fide third parties – was clearly ill-suited to these principles:
(i) it did not allow the courts to ascertain which instruments were the most appropriate in relation to the specific circumstances of the case or, more generally, to weigh the legitimate aim against the rights of those affected by the sanction; and
(ii) as the applicant companies had not been parties to the related proceedings, none of the above-mentioned procedural safeguards had been available to them.
Conclusion: violation in respect of all the applicants (unanimously).
Article 6 § 2 of the Convention (Mr Gironda): The applicant had been declared guilty in substance in spite of the fact that the prosecution of the offence in question had become statute-barred; this constituted a breach of his right to be presumed innocent.
Conclusion: violation in respect of Mr Gironda (sixteen votes to one).
Article 41: reserved.
(See also Sud Fondi srl and Others v. Italy, 75909/01, 20 January 2009, Information Note 115)
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