Published on 27 November 2023
FIRST SECTION
Application no. 81658/17
Alessandro NOCERINO
against Italy
and 3 other applications
(see list appended)
communicated on 6 November 2023
SUBJECT MATTER OF THE CASE
The applications concern the confiscation of the applicants’ assets, which were considered to be proceeds of crime, on the basis of Article 12 sexies of Law Decree no. 306/1992, introduced on 20 June 1994 by Law Decree no. 399/1994 (“extended confiscation”; confisca allargata).
As regards application no. 81658/17 Nocerino v. Italy, the applicant was convicted, under Article 416 bis of the Criminal Code, for being a member of a mafia-type criminal organisation from 1984 until 1994. Having established that the applicant’s assets were disproportionate to his declared income and that he was unable to demonstrate their lawful origin, the national courts ordered their confiscation. The confiscation became final with the judgment of the Court of Cassation no. 25732 of 23 May 2017.
As regards applications nos. 17886/20 Gulizia v. Italy and 32708/20 Bruno v. Italy, I.G. (the brother and husband of the applicants respectively) was convicted twice – by judgments issued on 14 July 1993 and 17 May 1994 – for being a member of a criminal organisation dealing with drug trafficking, under Article 74 of Presidential Decree no. 309/1990. The national courts established that certain assets formally owned by the applicants belonged, in reality, to I.G. and were disproportionate to the family’s declared income. As I.G. and the applicants were unable to demonstrate the lawful origin of such assets, the national courts ordered the confiscation thereof. The confiscations became final with judgments no. 48525 of 28 November 2019 and no. 14846 of 13 May 2020 respectively.
As regards application no. 6411/21 Esposito and Cosimo v. Italy, the applicants were convicted, under Articles 73 and 74 of Presidential Decree no. 309/1990, for drug-related crimes committed in 2008. Having established that the construction of a building, dating back to 1992 and erected on land purchased by the first applicant’s parents in 1991, was disproportionate to the applicants’ declared income, and that they were unable to demonstrate its lawful origin, the national courts ordered the confiscation of the building. The confiscation became final with the judgment of the Court of Cassation no. 12928 of 24 April 2020.
In applications nos. 81658/17 Nocerino v. Italy, 17886/20 Gulizia v. Italy and 32708/20 Bruno v. Italy the applicants complain, under Article 7 of the Convention, of the retroactive application of Article 12 sexies of Law Decree 306/1992.
In applications nos. 81658/17 Nocerino v. Italy and 6411/21 Esposito and Cosimo v. Italy, the applicants complain of a violation of Article 1 of Protocol No. 1 to the Convention, for (i) lack of a foreseeable legal basis in light of the retroactive application of Article 12 sexies and (ii) the disproportionate character of the confiscation, in light of the reversed burden of proof as to the lawful origin of the confiscated assets and (iii) an incorrect assessment of evidence, which showed that the assets had been acquired lawfully or, in any case, long before the commission of the crimes.
QUESTIONS TO THE PARTIES
1. As regards applications nos. 81658/17 Nocerino v. Italy, 17886/20 Gulizia v. Italy and 32708/20 Bruno v. Italy, can the confiscation of the alleged proceeds of crime, as prescribed by Article 12 sexies of Law Decree no. 306/1992, be considered a “penalty” within the meaning of Article 7 § 1 of the Convention (see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, §§ 302-306, 13 July 2021, Ulemek v. Serbia (dec.), no. 41680/13, §§ 47-57, 2 February 2021 and Welch v. the United Kingdom, 9 February 1995, §§ 28-35, Series A no. 307-A)?
2. If so, was a heavier penalty imposed on the applicants than the one which was applicable at the time of the commission of the offences, as proscribed by Article 7 § 1 of the Convention?
3. As regards applications nos. 81658/17 Nocerino v. Italy and 6411/21 Esposito and Cosimo v. Italy, was the confiscation of the applicants’ assets in compliance with Article 1 of Protocol No. 1 to the Convention?
In particular, was the application of Article 12 sexies of Law Decree no. 306/1992 sufficiently foreseeable (see Gogitidze and Others v. Georgia, no. 36862/05, § 99, 12 May 2015 and Dimitrovi v. Bulgaria, no. 12655/09, § 46, 3 March 2015)?
4. If so, was the confiscation of the applicants’ assets proportionate to the aim pursued, as required by Article 1 of Protocol No. 1? In particular, the parties are invited to address the following points:
(i) whether the domestic authorities showed that the confiscated assets could have been the proceeds of crimes in a reasoned manner, on the basis of an objective assessment of facts and evidence and without relying on a mere suspicion, also in light of the date of their acquisition (see Todorov and Others v. Bulgaria, nos. 50705/11 and 6 others, § 215, 13 July 2021);
(ii) whether the reversal of the burden of proving the lawful origin of assets acquired many years earlier imposed an excessive burden on the applicants (see Todorov, cited above, § 202 and, mutatis mutandis, Dimitrovi v. Bulgaria, no. 12655/09, § 46, 3 March 2015);
(iii) 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 (Telbis and Viziteu v. Romania, no. 47911/15, §§ 78, 26 June 2018).
APPENDIX
List of applications:
No.
Application no.
Case name
Lodged on
Applicant
Date of Birth
Place of Residence
Nationality
Represented by
1.
81658/17
Nocerino v. Italy
22/11/2017
Alessandro NOCERINO
02/01/1947
Naples
Italian
Giovanni ROMANO
2.
17886/20
Gulizia
v. Italy
15/04/2020
Carmela GULIZIA
12/12/1955
Cinisello Balsamo
Italian
Nicola CAMPANA
3.
32708/20
Bruno
v. Italy
23/07/2020
Silvana BRUNO
23/05/1964
Milan
Italian
Nicola CAMPANA
4.
6411/21
Esposito and Cosimo
v. Italy
19/01/2021
Sergio Vito ESPOSITO
15/06/1957
Collepasso
Italian
Agata COSIMO
25/06/1966
Collepasso
Italian
Antonella MASCIA
Full & Egal Universal Law Academy