Published on 9 October 2023
FIRST SECTION
Application no. 36551/22
Giuseppe ISAIA against Italy
and 2 other applications
(see list appended)
communicated on 18 September 2023
SUBJECT MATTER OF THE CASE
The applications concern the confiscation of the applicants’ assets, ordered by the domestic courts pursuant to Article 24 of Legislative Decree no. 159 of 6 September 2011 (Codice delle leggi antimafia e delle misure di prevenzione, “Decree no. 159/2011”).
The first applicant is Mr Giuseppe Isaia, who has been declared socially dangerous in accordance with to Article 1 § 1 (b) of Decree no. 159/2011 (pericolosità generica or “ordinary dangerousness”). The domestic courts considered that his assets were disproportionate to his lawful income and that he had failed to demonstrate their lawful origin.
The second and third applicants are respectively the first applicant’s wife and son. The domestic courts considered that their assets were formally owned by them, but actually belonged to the first applicant (intestazione fittizia or “fictitious ownership”), were disproportionate to their lawful incomes and that they had failed to demonstrate their lawful origin.
The applicants challenged the measures before the competent domestic courts. On 14 December 2021 the substitute general prosecutor before the Court of Cassation asked the latter court to uphold the applicants’ appeal on points of law, observing that domestic courts had failed to fulfil the conditions provided by the law. In particular, he observed that the first applicant had been considered socially dangerous for crimes committed between 1980 and 2008, while the confiscated assets had been acquired several years later. On 7 April 2022 the Court of Cassation dismissed the applicants’ appeal, holding that the competent domestic courts had demonstrated that the assets had been presumably acquired through the proceeds of the crimes previously committed by the first applicant.
Relying on Article 6 of the Convention, the applicants complain of the elements on the basis of which the first applicant has been declared socially dangerous. They maintain, in particular, that the first applicant committed a series of crimes (such as robberies, thefts, blackmails) between 1980 and 1998, and an attempted theft in 2008. The domestic courts further considered that the third applicant had been convicted of theft of electric energy, committed in 2013, and possession of hashish, committed in 2014. The applicants submit that the first and third applicant had been considered dangerous sine die. They further argue that the confiscation was at odds with the domestic law, as interpreted by the Court of Cassation in judgment no. 4880 of 2 February 2015, since the vast majority of the confiscated assets was purchased after the end of the period during which the first applicant had been declared socially dangerous and the domestic courts allegedly failed to provide any evidence to demonstrate that those assets had been acquired through the proceeds of crimes.
QUESTIONS TO THE PARTIES
1. Was the interference with the applicants’ peaceful enjoyment of possessions in accordance with the requirements of Article 1 of Protocol No. 1 to the Convention? In particular:
1.1. Was the interference in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1? In particular:
(a) did the nature and severity of the crimes committed after 1998 justify the declaration of social dangerousness and the presumption that the applicant’s assets were proceeds of unlawful activities (compare Bongiorno and Others v. Italy, no. 4514/07, § 45, 5 January 2010, Gogitidze and Others v. Georgia, no. 36862/05, § 107, 12 May 2015, and Telbis and Viziteu v. Romania, no. 47911/15, §§ 74 and 77, 26 June 2018)?
In answering this question, the parties are requested to take into account, in inter alia, the following judgments: Court of Cassation, judgment no. 31209 of 17 July 2015, and Constitutional Court, judgment no. 24 of 27 February 2019.
(b) was the measure in accordance with the relevant domestic case-law, which delimited from a temporal point of view the assets that could be confiscated (see, mutatis mutandis, Dimitrovi v. Bulgaria, no. 12655/09, § 45 et seq., 3 March 2015)?
In answering this question, the parties are requested to refer, inter alia, to the following judgments: Court of Cassation (Joined Sections), judgment no. 4880 of 2 February 2015; Court of Cassation, judgments no. 14165 of 27 March 2018, and no. 30974 of 9 July 2018.
1.2. If so, was the measure necessary and proportionate for the purposes of Article 1 of Protocol No. 1 to the Convention?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
36551/22
Isaia v. Italy
14/07/2022
Giuseppe ISAIA
1964
Bagheria
Italian
Antonio TURRISI
2.
36926/22
Scaletta v. Italy
19/07/2022
Carmela SCALETTA
1968
Bagheria
Italian
Antonio TURRISI
3.
37907/22
Isaia v. Italy
19/07/2022
Davide ISAIA
1991
Altavilla Milicia
Italian
Antonio TURRISI