Published on 16 September 2024
FIRST SECTION
Application no. 33868/22
Cristiano STASI
against Italy
lodged on 28 June 2022
communicated on 29 August 2024
SUBJECT MATTER OF THE CASE
The applicant is a certified accountant who practices as representative of taxpayers in proceedings before domestic tax courts and the Court. The application concerns the access of the Revenue Police (Guardia di finanza) to his professional office, in the context of a tax investigation. The authorisation to have access to, and search, the applicant’s office (ordine di accesso, ispezione e verifica; hereafter “warrant”) has been adopted pursuant to Articles 52 and 63 of Presidential Decree no. 633 of 1972 and Article 33 of Presidential Decree no. 600 of 1973.
The applicant asked the officers of the Guardia di finanza to clarify the reasons and suspicions on which the access was grounded and highlighted that he practices as representative in proceedings pending before tax courts. The search was suspended but, a few days later, all the fiscal documents concerning the applicant’s professional activity in 2019, 2020 and 2021 were seized.
The applicant argues that the warrant at issue is not subject to a direct appeal, pursuant to Article 19 of Decree no. 471 of 1997. It can be challenged only at the end of the tax assessment proceedings, provided that a final administrative act (avviso di accertamento del tributo) has been adopted, and provided that it has been based on information and evidence gathered through the search. He complains under Article 8 of the Convention of the allegedly unlawful and disproportionate search of his professional premise, and, under Articles 8 and 13 of the Convention, of the lack of an effective judicial or independent review of the warrant. In particular, he complains:
- of the lack of an ex ante judicial scrutiny of the lawfulness of the warrant, as the authorisation to access to his office and obtain the documents was adopted by the Guardia di finanza;
- of the absence of any reasonable suspicion that a tax offence had been committed, which might have justified the interference with his rights under Article 8;
- that the search warrant was extremely vague, as it did not indicate the evidence already available to the authorities nor predetermined the scope and purpose of the search, in particular by indicating the items that the authorities expected to find as evidence of the alleged offences being investigated;
- of the absence of special procedural safeguards related to his quality of representative in proceedings pending before domestic tax courts and before the Court; and
- of the lack of an effective remedy to contest the alleged breach of his rights to home and professional life.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his “home” and “private life”, within the meaning of Article 8 § 1 of the Convention (see André and Another v. France, no. 18603/03, §§ 36-37, 24 July 2008, and Sabani v. Belgium, no. 53069/15, §§ 46-47, 8 March 2022) and with the applicant’s duty of legal confidentiality (see Kruglov and Others v. Russia, nos. 11264/04 and 15 others, § 137, 4 February 2020)?
If so, was the interference in conformity with the requirements of Article 8 § 2 of the Convention? In particular:
(a) Was the interference “in accordance with the law” in terms of Article 8 § 2 of the Convention, that is to say, in accordance with a law which was accessible to the applicant, foreseeable in its application and consequences and compatible with the rule of law (see Tortladze v. Georgia, no. 42371/08, § 56, 18 March 2021, and Brazzi v. Italy, no. 57278/11. § 39, 27 September 2018). With regard to the latter condition, did the said law provide some protection against the allegedly arbitrary interferences with the applicant’s Article 8 rights (see Ben Faiza v. France, no. 31446/12, § 59, 8 February 2018)? In particular:
(i) Did it establish an ex ante independent or judicial supervision of the warrant, capable of reviewing its lawfulness and/or limiting the investigating authorities discretion to assess the expediency and scope of the search (see Heino v. Finland, no. 56720/09, § 40, 15 February)?
(ii) Did it give the applicant and the authorities an adequate indication as to the circumstances in which, and conditions on which, the authorities are entitled to resort to measures affecting the applicant’s Article 8 rights (see Ben Faiza, cited above, § 59, and Budak v. Turkey, no. 69762/12, § 43, 16 February 2021)?
(iii) Did it provide for an ex post facto judicial review of the lawfulness of, and justification for, the warrant (see Kuzminas v. Russia, no. 69810/11, § 24, 21 December 2021, and Gutsanovi v. Bulgaria, no. 34529/10, § 222, 15 October 2013)?
(b) If so, was the interference “necessary in a democratic society” and proportionate to the aim pursued, within the meaning of Article 8 § 2 of the Convention (see, among others, K.S. and M.S. v. Germany, no. 33696/11, § 44, 6 October 2016)? In particular:
(i) Was the warrant sufficiently reasoned and specific in its content? Did it contain an explicit and detailed reference of the offences being investigated and of the evidence already available to the authorities (see Leotsakos v. Greece, no. 30958/13, § 49, 4 October 2018; Modestou v. Greece, no. 51693/13, §§ 45 et seq., 16 March 2017)?
(ii) Was the scope and purpose of the search sufficiently precise and limited, with an indication in the warrant of the items sought as evidence of the offences being investigated (see Modestou, cited above, §§ 46 et seq., and Gutsanovi, cited above, § 224)?
(iii) taking into account Article 12 § 3 (b) of Legislative Decree no. 546 of 1992, which extends the applicability of the legal professional privilege to certified accountants who practice as representatives in proceedings before tax courts, had an independent observer been present during the access to the applicant’s professional office in order to ensure that materials subject to professional secrecy would not be removed? If no such observer attended the access to the applicant’s professional office, was there a need for such an observer to be present (see Niemietz v. Germany, 16 December 1992, § 37, Series A no. 251‑B, Roemen and Schmit v. Luxembourg, no. 51772/99, § 69, ECHR 2003‑IV, André and Another, cited above, §§ 41-47, Aleksanyan v. Russia, no. 46468/06, § 214, 22 December 2008 Moulin v. France, no. 37104/06, § 71 and 73, 23 November 2010, Golovan v. Ukraine, no. 41716/06, §§ 62-63, 5 July 2012, Leotsakos, cited above, § 42, Kruglov and Others, cited above, § 42)?
2. Did the applicant have access to an effective remedy, in accordance with Article 13 of the Convention, in order to challenge the lawfulness of, and justification for, the warrant?
3. Having regard to the circumstances of the case, is such situation indicative of an underlying systemic problem arising from the defective legal framework governing searches carried out in certified accountants’ professional office in the context of tax assessment proceedings, which could call for indication of general measures under Article 46 of the Convention?