Published on 16 September 2024
FIRST SECTION
Application no. 13935/22
Maria Edgarda MARCUCCI
against Italy
lodged on 4 March 2022
communicated on 29 August 2024
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s placement under special police supervision by the competent domestic court pursuant to Article 6 of Legislative Decree no. 159 of 6 September 2011 (Codice delle leggi antimafia e delle misure di prevenzione, “Decree no. 159/2011”).
On 18 June 2019 the applicant was declared socially dangerous pursuant to Article 1 § 1 (c) of Decree no. 159/2011 (pericolosità generica or “ordinary dangerousness”) as an individual “who, on the basis of factual evidence, may be regarded as having committed offences ... posing a threat to ... security or public order”.
The preventive measure, which became final on 6 September 2021, imposed the following obligations on the applicant for a period of two years: not to leave her domicile without reporting it to the police authority responsible for her supervision; not to associate with persons who had a criminal record and who were subject to preventive or security measures; to lead an honest and law-abiding life; not to return home later than 9 p.m. or to leave home before 7 a.m., except in case of necessity and only after giving notice to the authorities in good time; not to go to public establishments between 6 p.m. and 9 p.m.; not to keep or carry weapons; and not to participate in public assemblies.
The applicant complains under Article 10 of the Convention that the measure arbitrarily and disproportionately affected her right to freedom of expression, since her declaration of social dangerousness has been grounded of conducts which constituted manifestation of her thoughts and ideas.
Relying on Article 11 of the Convention and Article 2 of Protocol No. 4 to the Convention, the applicant further complains of the alleged lack of clarity and foreseeability of the legal basis with regard to individuals to whom the special police supervision, as a preventive measure, is applicable, of the alleged vague and indeterminate content of the obligations imposed on her, and of the disproportionate character of the obligations imposed on her, in particular with regard to the prohibition to participate to public assemblies.
Relying on Article 6 § 2 of the Convention, the applicant complains of an alleged breach of the presumption of innocence. She argues that the domestic courts declared her socially dangerous as a person habitually committing crimes against public security, notwithstanding she had been acquitted in a previous set of criminal proceedings and the other proceedings were still pending.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?
2. Was the interference with the applicant’s right to freedom of peaceful assembly and right to liberty of movement “prescribed by law”, within the meaning of the second paragraph of Article 11 of the Convention, and “in accordance with the law”, within the meaning of the third paragraph of Article 2 of Protocol No. 4 to the Convention? In particular:
(a) Taking into account the relevant domestic case-law (see, for example, Court of Cassation, judgments no. 21350 of 4 May 2017, and no. 15492 of 19 January 2018), was Article 1 § 1 (c) of Decree no. 159/2011 sufficiently precise, clear and foreseeable in its application and consequences and compatible with the rule of law, with regard to the individuals to whom special police supervision as a preventive measure is applicable (see, mutatis mutandis, De Tommaso v. Italy [GC], no. 43395/09, §§ 117-18 and 126, 23 February 2017)?
(b) If so, was the measure imposed on the applicant compliant with the relevant domestic provision?
(c) Were the obligations imposed on the applicant sufficiently clear and determined (see De Tommaso, cited above, §§ 119-24)?
If so, was the interference “necessary in a democratic society”, within the meaning of the second paragraph of Article 11 of the Convention and the third paragraph of Article 2 of Protocol No. 4, and proportionate to the aim pursued?
3. Did the decisions of the domestic courts reflect the opinion that the applicant was guilty of crimes in respect of which she had been previously acquitted or in respect of which the criminal proceedings were still pending?
If so, has there been a violation of the presumption of innocence, guaranteed by Article 6 § 2 of the Convention (see Nealon and Hallam v. the United Kingdom [GC], nos. 32483/19 and 35049/19, §§ 150-69, 11 June 2024; Allen v. United Kingdom [GC], no. 25424/09, CEDH 2013; and Geerings v. the Netherlands, no. 30810/03, § 47, 1 March 2007)?
The Government are requested to provide the entire case file of the domestic proceedings.