FIRST SECTION
DECISION
Application no. 7222/22
Chiara PERNECHELE and Others
against Italy
The European Court of Human Rights (First Section), sitting on 31 October 2023 as a Committee composed of:
Péter Paczolay, President,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 7222/22) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 15 March 2022 by the applicants listed in the appended table (“the applicants”);
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns complaints lodged by six Italian lawyers about measures adopted by the national authorities between 1 February and 30 April 2022 to prevent the spread of the COVID-19 virus in courts and prisons.
2. Following an initial period of strict limitation on freedom of movement and of total closure of public places, services and shops (except those required to meet basic needs), public buildings were gradually reopened and access to them was allowed subject to the possession of a certificate (the so-called “green pass” (certificazione verde Covid-19)), attesting that the person had been vaccinated against, or, having been infected, had recovered from COVID-19. In the alternative, a molecular or antigenic test taken within the previous 48 hours could be submitted (section 9 of Decree-Law no. 52 of 22 April 2021 – “Decree-Law no. 52/2021”).
3. The certification requirement was extended to access to schools, public services and workplaces, both in the public and private sector. With reference to judicial premises and prisons, section 9-quinquies and section 9-sexies of Decree-Law no. 52/2021 imposed the same conditions on both judges and administrative staff. However, the measure did not apply to lawyers who, therefore, were given free access to courts as well as to detention centres with the aim of not impinging the exercise of defence rights.
4. By virtue of Decree-Law no. 1 of 7 January 2022 (“Decree-law no. 1/2022”), the above-mentioned section 9-sexies was amended and the obligation to submit a certificate to access courts was extended to lawyers, as from 1 February 2022. Section 9-bis of Decree-Law no. 52/2021 was also revised and certification was required for in person meetings with detainees. Thus, from 1 February 2022 to 30 April 2022, access of lawyers to courts as well as to detention centres was subjected to the requirement of the possession of the green pass.
5. In addition, according to section 1 of Decree-Law no. 1/2022, lawyers over the age of 50 were required to have a COVID-19 vaccination, unless they already had a recovery certificate. Therefore, these lawyers could not avail themselves of a molecular or antigenic test. The law provided for exemptions in the case of certified medical conditions (section 9-bis, paragraph 3, of Decree-Law no. 52/2021). However, except in such cases, from 15 February 2022 to 25 March 2022 lawyers over the age of 50 were obliged to submit a vaccination or recovery certificate to exercise their activity both in the courts and in prisons. Moreover, according to the last paragraph of section 9-sexies, failure to attend a hearing due to a lack of the required certification was not accepted and did not give rise to the right of adjournment.
6. The applicants invoked Article 6 § 1 of the Convention and complained that the measures in question had breached the right to legal assistance of potential parties in domestic proceedings.
7. They further claimed to have suffered an undue restriction of their activity and, therefore, a breach of their right to respect for their private life under Article 8 of the Convention.
8. Finally, under Article 14 of the Convention, they complained of discrimination suffered by parties in domestic proceedings whose lawyers did not possess a COVID-19 certification in relation to those who were assisted by lawyers satisfying this requirement.
THE COURT’S ASSESSMENT
9. The Court reiterates that, in order to be able to lodge an application under Article 34 of the Convention, a person, non-governmental organisation or group of individuals must be able to claim to be the victim of a violation of the rights set forth in the Convention. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure: the Convention does not envisage the bringing of an actio popularis for the interpretation of the rights it contains or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Tănase v. Moldova [GC], no. 7/08, § 104, ECHR 2010).
10. However, it is open to a person to contend that a law violates his or her rights, in the absence of an individual measure of implementation, if he or she is required either to adjust his or her conduct or risks being prosecuted, or if he or she is a member of a class of people who risk being directly affected by the legislation (see Burden v. the United Kingdom [GC], no. 13378/05, §§ 33-34, ECHR 2008; Open Door and Dublin Well Woman v. Ireland, 29 October 1992, § 44, Series A no. 246-A; and Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28).
11. The Court reiterates in this context that, in order to be able to claim victim status, applicants must produce reasonable and convincing evidence of the likelihood that a violation affecting them personally will occur; mere suspicion or conjecture is insufficient in this respect (see Fenech v. Malta, no. 19090/20, § 101, 1 March 2022, and Zambrano v. France (dec.), no. 41994/21, § 42, 21 September 2021).
12. The Court observes in this regard that such evidence is lacking with reference to the complaints under Article 6 § 1 and Article 14 of the Convention. Quite apart from the ancillary nature of Article 14, which merely complements the other substantive provisions of the Conventions and Protocols and, therefore, cannot be invoked on its own (see Molla Sali v. Greece [GC], no. 20452/14, § 123, 19 December 2018), it is evident that the applicants complained of the breach of the right to defence of potential parties in domestic proceedings or of detainees assisted by lawyers without certification. Nonetheless, when submitting their application form the applicants acted in their own names and not on behalf of clients. No client was identified, and no form of authority provided (see Angelique Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009). It follows that the applicants cannot be considered victims of the said violations, nor can they be deemed to be representatives of potential victims.
13. Concerning the complaint under Article 8 of the Convention, the applicants did not submit any information about their situation except for their identity and occupation. They provided no data to show how exactly the impugned measures had affected, or would have been likely to have affected, them directly or to target them because of their possible individual characteristics (see Zambrano, cited above, § 43). In particular, the applicants did not indicate whether there had been scheduled hearings that they should have attended during the relevant period or whether they had needed to meet with detained clients in person. Similarly, they did not indicate whether alternative means of participation in hearings or of contact with detainees had been available, for example through videoconferences, telephones calls or in writing (see, mutatis mutandis, Ibrahima Bah v. the Netherlands, no. 35715/20, §§ 40 and 44, 22 June 2021). Lastly, five of the six applicants had not attained the age of 50 at the time the application was lodged with the Court. Thus, the vaccination requirement did not apply to them.
14. The absence of any such element makes it impossible for the Court to conduct an individual assessment of the applicants’ situation, including the question of exhaustion of domestic remedies (see Zambrano, cited above, §§ 24-26). It thus appears that the applicants complained about the impugned measures in a general manner, believing their freedoms to have been automatically violated as a result of the adoption of those measures (see Dalibor Magdić v. Croatia, no. 17578/20, §§ 7-13, 5 July 2022).
15. In that connection, and noting that the applicants are all lawyers, the Court reiterates that, having due regard to the Court’s duty to examine allegations of human rights violations, the applicants, as lawyers, must show a high level of professional prudence and meaningful cooperation with the Court by sparing it from the introduction of unmeritorious complaints and, once proceedings have been instituted, they must meticulously abide by all the relevant rules of procedure and urge their clients to do the same (see Bekauri v. Georgia (preliminary objection), no. 14102/02, § 24, 10 April 2012). Otherwise, the wilful or negligent misuse of the Court’s resources may undermine the credibility of lawyers’ work in the eyes of the Court and even, if it occurs systematically, may result in particular individual lawyers being banned from representing applicants under Rule 36 § 4 (c) of the Rules of Court (see Stevančević v. Bosnia and Herzegovina (dec.), no. 67618/09, § 29, 10 January 2017).
16. The Court considers that, in the light of all the material in its possession, and taking into account the above considerations, the application constitutes an actio popularis and the applicants cannot be regarded as victims for the purposes of Article 34 of the Convention.
17. It follows that the present application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and that it must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 23 November 2023.
Liv Tigerstedt Péter Paczolay
Deputy Registrar President
Appendix
List of the applicants :
Applicant’s name
Year of Birth
Place of Residence
Nationality
Member of Bar Association
Chiara PERNECHELE
1973
Roncegno Terme (TN)
Ivana MARTELLETTO
1969
Lonigo (VI)
Eva VIGATO
1976
Este (PD)
Francesco MARACINO
1973
Padoue
Francesca VENTURIN
1976
Padoue
Lydia SCHIAVOLIN
1977
Legnaro (PD)
Italian
Italian
Italian
Italian
Italian
Italian
Padoue
Vicenza
Padoue
Larino (CB)
Padoue
Padoue
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