Published on 18 December 2023
FIRST SECTION
Applications nos. 29902/20 and 54212/20
Giuseppe Massimiliano PERRONE against Italy
and Vincenzo GIUDICE against Italy
lodged on 13 July 2020 and 24 November 2020 respectively
communicated on 27 November 2023
SUBJECT MATTER OF THE CASE
The applications concern the questions whether, in criminal proceedings against the applicants on charges of, inter alia, participation in and direction of a mafia-type organisation with the aggravating circumstance of armed organisation (“Cosa Nostra”), provided for by Article 416 bis §§ 1-2-3-4-6 of the Italian Criminal Code, the domestic courts applied presumptions in determining the date on which the continuous offence had ceased (“tempus commissi delicti”), and whether they applied retroactively a heavier penalty to the applicants’ disadvantage.
The applicants complain under Article 6 § 2 of the Convention that their right to be presumed innocent was not respected, since the domestic courts applied presumptions in considering the crime as continuing even after their arrest, in the absence of evidence of that provided by the prosecutor, with a reversal of the burden of proof from the prosecution to the defence. They also complain under Article 7 of the Convention that the heavier penalty introduced after their arrest was applied retroactively to their disadvantage.
QUESTIONS TO THE PARTIES
1. Was the presumption of innocence, as guaranteed by Article 6 § 2 of the Convention, respected in the present applications? In particular, did the domestic courts apply presumptions against the applicants in considering that the crime committed by them was still ongoing even after their arrest, with a reversal of the burden of proof from the prosecution to the defence (Salabiaku v. France, 7 October 1988, §§ 27-28, Series A no. 141-A; Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; Telfner v. Austria, no. 33501/96, § 15, 20 March 2001; and Klouvi v. France, no. 30754/03, § 41, 30 June 2011)?
2. If so, was the use of presumptions confined to reasonable limits which took into account the importance of what was at stake for the applicants, also in light of the consequences on the applicable law (see also the principles expressed by the Court of Cassation in the judgments no. 23343 of 6 June 2016 and no. 14823 of 28 February 2020)?
In answering the above questions, the parties are invited, in particular, to comment on:
(i) what specific factual elements have been taken into account by the domestic courts in order to consider the offence continuing even after the arrest;
(ii) whether the proof of dissociation, required in order to rebut the presumption of continuation of the crime (see, mutatis mutandis Court of Cassation no. 34615 of 10 June 2021 and no. 1688 of 26 October 2021), is compatible with the right of defence, also considering the privilege against the self-incrimination.
3. Was a heavier penalty imposed on the applicants than the one which was applicable at the time of the commission of the offences in the present applications, as proscribed by Article 7 of the Convention (see Rohlena v. the Czech Republic [GC], no. 59552/08, § 57, ECHR 2015; Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, §§ 31-37, ECHR 2001-II; and Veeber v. Estonia (no. 2), no. 45771/99, § 30-39, ECHR 2003-I)? In particular, were the elements of the offences, including the “tempus commissi delicti”, clearly set out in the indictment?
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