Published on 28 August 2023
FIRST SECTION
Application no. 8967/21
Pasquale GRECO and Adelina BORDA
against Italy
(see list appended)
lodged on 2 February 2021
communicated on 10 July 2023
SUBJECT MATTER OF THE CASE
The application concerns the confiscation of the applicants’ assets as a preventive measure pursuant to Article 24 of Legislative Decree no. 159 of 6 September 2011.
On 20 March 2017 the Turin District Court acquitted Pasquale Greco (“the first applicant”) of the crime of participation (partecipazione) in a mafia-type criminal organisation and condemned him for usury.
In the course of proceedings for the application of preventive measures initiated in 2017, the first applicant was declared socially dangerous in accordance with Article 1 § 1 (b) (pericolosità generica or “ordinary dangerousness”) and Article 4 § 1 (a) (pericolosità qualificata or “special dangerousness”) of Legislative Decree no. 159/2011. On these grounds, the domestic courts ordered the confiscation of his assets, as well as of assets formally belonging to his wife, Ms. Adelina Borda (“the second applicant”), which they considered to be at the first applicant’s disposal. They reasoned that such assets were disproportionate to the applicants’ lawful incomes and that they had failed in demonstrating their lawful origin. The confiscation became final with decision of the Court of Cassation no. 23813 of 11 August 2020.
The applicants complain of a violation of Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention, on account of the unforeseeable character of the notion of “ordinary dangerousness” pursuant to Article 1 § 1 (b) as well as of the notion of membership (appartenenza) of a mafia-type criminal organisation pursuant to Article 4 § 1 (a) of Legislative Decree no. 159/2011.
They further complain, under Article 7 of the Convention, that the confiscation was applied despite the first applicant’s acquittal of the charge of participation in a mafia-type criminal organisation.
Under Article 1 of Protocol No. 1 to the Convention, they complain of the disproportionate character of the measure, taking into account the prohibition to rely on revenues which have not been declared to the tax authorities and the extension of such prohibition to revenues acquired by third parties and before the first applicant was declared socially dangerous.
Under Article 6 of the Convention, they complain of the reversal of the burden of proof, which allegedly made it impossible for them to prove the lawful origin of the assets.
Finally, the first applicant complains of a breach of Article 4 of Protocol No. 7 to the Convention with regard to the previous criminal proceedings.
QUESTIONS TO THE PARTIES
1. Taking into account the characterisation of the contested measure under the 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, judgment nos. 21 of 9 February 2012, and no. 24 of 24 February 2019), its nature and purpose, the procedures involved in its making 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” of “punishment” within the meaning of Article 7 § 1 of 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, and 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, has there been a violation of Article 7 of the Convention on account of:
a) the alleged lack of clarity and foreseeability of the applicable law?
b) the application of the confiscation notwithstanding the first applicant’s acquittal of the charge of participation in a mafia-type criminal organisation (see G.I.E.M. S.R.L. and Others, cited above, § 251)?
2. Was the first applicant “tried or punished again in criminal proceedings” within the meaning of Article 4 of Protocol No. 7 to the Convention (see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 307, 13 July 2021)?
3. Was the alleged interference with the applicants’ peaceful enjoyment of possessions in accordance with the requirements of Article 1 of Protocol No. 1 to the Convention?
3.1. Was the measure in accordance with the conditions provided for by the law, as required by Article 1 of Protocol No. 1 to the Convention? In particular:
a) was Article 1 § 1 (b) of Legislative Decree no. 159/2011 sufficiently precise and clear, and foreseeable in its application and consequences and compatible with the rule of law, with regard to the individuals to whom preventive measures are applicable (see De Tommaso v. Italy [GC], no. 43395/09, §§ 110-126, 23 February 2017)?
b) was Article 4 § 1 (a) sufficiently precise and clear, and foreseeable in its application and consequences and compatible with the rule of law, with regard to the notion of “membership” (appartenenza) of a mafia-type criminal organisation as opposed to the notion of “participation” (partecipazione) provided by Article 416 bis of the criminal code (see, inter alia, judgments of the Court of Cassation no. 4880 of 2 February 2015, no. 33748 of 20 September 2005, no. 3941 of 29 January 2016 and no. 111 of 4 January 2018)?
3.2. Was the interference necessary and proportionate, as required by Article 1 of Protocol No. 1 to the Convention? In particular, did the applicants suffer an excessive burden on account of the reversal of the burden of proof to their detriment? The parties are invited to address the following points:
a) whether, in light of the acquittal of the first applicant of the charge of participating in a mafia-type criminal organisation and of his conviction for usury, the findings of dangerousness and the subsequent confiscation of assets were justified;
b) whether the national authorities showed in a reasonable manner that the confiscated assets could be of unlawful origin, also in light of the date and means of their acquisition (see, mutatis mutandis, Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 215, 13 July 2021);
c) whether the prohibition of proving the lawful origin of the assets on the basis of incomes which had not been declared to the tax authorities imposed an excessive burden on the applicants;
d) 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 (see G.I.E.M. S.R.L. and Others, cited above, § 302, and Telbis and Viziteu v. Romania, no. 47911/15, § 78, 26 June 2018).
APPENDIX
List of applicants
No.
Applicant’s name
Year of birth
Nationality
Place of residence
Representative’s Name and city
1.
Pasquale GRECO
1946
Italian
Venaria Reale
Alfredo Gaito
Rome
2.
Adelina BORDA
1949
Italian
Venaria Reale
Alfredo Gaito
Rome