Information Note on the Court’s case-law 34
September 2001
Riela v. Italy (dec.) - 52439/99
Decision 4.9.2001 [Section I]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Confiscation of property of persons suspected of belonging to a criminal organisation: inadmissible
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Proceedings concerning the application under Italian law of preventive measures involving the confiscation of property: Article 6 applicable
Fair hearing
Failure to inform of opening of proceedings concerning property rights: inadmissible
Public hearing
Non-public proceedings before the Court of Cassation and absence of participation of applicants' lawyers: inadmissible
Criminal charge
Proceedings concerning the application under Italian law of preventive measures involving the confiscation of property: Article 6 inapplicable
In December 1995 the Catania Court of First Instance made an order for the confiscation of various property belonging to the applicants, including land, buildings, vehicles, and shares in certain trading companies, pursuant to the Law on Preventive Measures, on the ground that the property was, or had been acquired with, the proceeds of crime. It held that a number of factors indicated that the first two applicants were members of a criminal organisation based in Sicily, whose existence had been established by the statements of a pentito (a former member of the Mafia). The Catania Court of Appeal upheld that decision in March 1998. Having examined the file it considered that it was reasonable to consider that the property concerned was, or had been acquired with, the proceeds of crime. In a judgment of March 1999 the Court of Cassation dismissed an appeal on points of law lodged by the applicants. The procedure before the Court of Cassation was held in private. The applicants’ lawyers were not permitted to attend the hearing. The order for the confiscation of the property has thus become final but, according to the information provided to the Court, has yet to be executed.
Inadmissible under Article 1 of Protocol No. 1: the confiscation constituted an interference with the applicants’ right to the peaceful enjoyment of their possessions. That measure constituted control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (and not a deprivation of possessions). The measure was provided for by law and pursued a legitimate aim. As to whether the measure was proportionate to the aim pursued, the Court afforded legislatures a wide discretion as regards policy for crime prevention and there was no principle under the Convention prohibiting presumptions of fact or law. The Court’s role was to establish whether, regard being had to the seriousness of the measure imposed, the proceedings before the Italian courts had afforded the applicants a reasonable opportunity to put forward their case to the relevant authorities. They had in the case before the Court since the procedure under which the preventive measures were imposed was adversarial and before three levels of jurisdiction. Further, the courts concerned had examined the facts objectively and not relied on mere suspicion. In particular, they had analysed the applicant's financial situation before concluding that the property that had been confiscated could only have been acquired from the proceeds of crime. Thus, regard being had to the margin of appreciation afforded to the States when controlling “the use of property in accordance with the general interest”, in particular as part of policy for combating organised crime, the interference was not disproportionate: manifestly ill founded.
Inadmissible under Article 6 § 1: (a) under Italian law, the confiscation of the applicants’ property under preventive measures did not connote a finding of guilt but was intended to prevent criminal activity. Moreover, no conviction of a criminal offence was required for the imposition of preventive measures, which thus distinguished them from “penalties”. The criminal limb of Article 6 was therefore inapplicable. However, the civil limb of Article 6 applied to any action whose subject matter was “pecuniary” in nature and which was founded on an alleged infringement of rights that were likewise of a pecuniary character, as in the case before the Court. The civil limb of Article 6 was therefore applicable.
(b) as regards the failure to inform the applicants of the commencement of the proceedings – whose effects on their property rights had been serious – their resulting application to have the judgment quashed had been made out of time and, in any event, they would be entitled to assert their property rights in the proceedings for execution of the confiscation order. As those proceedings had yet to begin, the allegations on that point were premature. Furthermore, although not all the names of those affected had been set out in the heading to the confiscation order of March 1998, that clerical error could not have affected the fairness of the proceedings, in particular as the reasons for the impugned decision and the operative provisions of that decision had clearly identified all the owners of the confiscated property: manifestly ill founded.
(c) as regards the lack of a public hearing before the Court of Cassation and the fact that the applicants’ lawyers were prohibited from attending, it could be seen from an examination of the impugned procedure that the appeal on points of law had been lodged after the case had been considered by two courts, both of which had had full jurisdiction on the merits and had held hearings which the parties’ lawyers had been able to attend. Furthermore, the lawyers concerned had been able to lodge submissions in support of the appeal to the Court of Cassation. Thus, regard being had to the role of the Court of Cassation and to the proceedings considered as a whole, there was no appearance of a violation of Article 6 § 1: manifestly ill founded.
[Note: this decision further clarifies the case-law after the judgment of Raimondo v. Italy of 22 February 1994].
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This summary by the Registry does not bind the Court.
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