Published on 13 June 2022
FIRST SECTION
Application no. 36617/18
ITALGOMME PNEUMATICI S.R.L. against Italy
and 12 other applications
(see list appended)
communicated on 24 May 2022
SUBJECT MATTER OF THE CASES
The applications concern searches carried out in the applicants’ registered offices, business premises or professional domiciles, in the context of tax assessment investigations. The search warrants were 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 applicants complain of the allegedly unlawful search of their registered offices, business premises or professional domiciles and of the lack of an effective judicial or independent review.
The applicants complain under Article 8 of the Convention taken alone and in conjunction with Article 13 of the Convention about the lack of an ex ante judicial scrutiny of the lawfulness of the search warrants, as the decisions to authorise the searches were taken by tax authorities themselves or by police forces (“Guardia di finanza”).
The applicants further complain under Article 8 of the Convention of the absence of any reasonable suspicion that an offence had been committed, which might have justified the interference with their Article 8 rights. They further argue that the search warrants were extremely vague, as they did not indicate the evidence already available to the authorities nor predetermined the scope and purpose of the searches, in particular by indicating the items that the authorities expected to find as evidence of the offences being investigated.
The applicants further complain under Article 6 of the Convention and/ or under Article 8 of the Convention in conjunction with Article 13 of the Convention about the lack of access to court to contest the alleged breach of their rights to home and privacy. In particular, they complain of the absence in the Italian legal system of a judicial remedy directly accessible and aimed at assessing the lawfulness of, and justification for, the search warrants. As the applicants argue, search warrants are not subject to a direct appeal, pursuant to Article 19 of Decree no. 471 of 1997. They 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.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their home, within the meaning of Article 8 § 1 of the Convention? 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 applicants, foreseeable in its application and consequences and compatible with the rule of law (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 applicants’ Article 8 rights (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 search warrants, capable of reviewing their lawfulness and/or limiting the investigating authorities discretion to assess the expediency and scope of the searches (Heino v. Finland, no. 56720/09, § 40, 15 February)?
(ii) Did it give the applicants 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 applicants’ Article 8 rights (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 search warrants (Kuzminas v. Russia, no.69810/11, § 24, 21 December 2021, and Gutsanovi v. Bulgaria, no. 34529/10, § 222, 15 October 2013)?
(b) 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) Were the search warrants sufficiently reasoned and specific in their content? Did they contain an explicit and detailed reference of the offences being investigated and of the evidence already available to the authorities at that time (Leotsakos v. Greece, no. 30958/13, § 49, 4 October 2018, and Modestou v. Greece, no. 51693/13, §§ 45 et seq., 16 March 2017)?
(ii) Was the scope and purpose of the searches sufficiently precise and limited, with an indication in the warrants of the items sought as evidence of the offences being investigated (Modestou, cited above, §§ 46 et seq., and Gutsanovi, cited above, § 224)?
2. Did the applicants have access to a court for the determination of their civil rights under Article 8 of the Convention, in accordance with Article 6 § 1 of the Convention (see Société Canal Plus and Others v. France, no. 29408/08, § 40, 21 December 2010; Compagnie des gaz de pétrole Primagaz v. France, no. 29613/08, § 30, 21 December 2010; and Ravon and Others v. France, no. 18497/03, §§ 28, 31 and 33, 21 February 2008), or to an effective remedy, in accordance with Article 13 of the Convention, in order to challenge the lawfulness of, and justification for, the search warrants?
3. Having regard to the circumstances of the cases, are such situations indicative of an underlying systemic problem arising from the defective legal framework governing home searches in the context of tax assessment proceedings, which could call for indication of general measures under Article 46 of the Convention?
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth/Registration
Place of Residence
Nationality
Represented by
1.
36617/18
Italgomme Pneumatici S.r.l. v. Italy
18/07/2018
ITALGOMME PNEUMATICI S.R.L. – 2009
Foggia
Italian
Ornella BONASSISA
2.
7525/19
Tecnonet S.r.l. v. Italy
25/01/2019
TECNONET S.R.L. – 2014
Cerignola (FG)
Italian
Cristiano STASI
3.
19452/19
Tecnonet S.r.l. v. Italy
02/04/2019
TECNONET S.R.L. – 2014
Cerignola (FG)
Italian
Ornella BONASSISA
4.
52473/19
Riviera del Gargano S.r.l. v. Italy
02/10/2019
RIVIERA DEL GARGANO S.R.L. – 2007
San Severo (FG)
Italian
Cristiano STASI
5.
55943/19
Bio Ecoagrim S.r.l. v. Italy
16/10/2019
BIO ECOAGRIM S.R.L. – 2010
Lucera (FG)
Italian
Cristiano STASI
6.
261/20
Ortofrutta Lezzi S.R.L. v. Italy
12/12/2019
ORTOFRUTTA LEZZI S.R.L. 1994
Cerignola (FG)
Italian
Cristiano STASI
7.
7991/20
Monirr S.r.l. v. Italy
29/01/2020
MONIRR S.R.L. - 2002
Lucera (FG)
Italian
Cristiano STASI
8.
8046/20
Bio Ecoagrim S.r.l. v. Italy
29/01/2020
BIO ECOAGRIM S.R.L. – 2010
Lucera (FG)
Italian
Cristiano STASI
9.
20062/20
Terrenzio v. Italy
05/05/2020
Eligio Giovanbattista TERRENZIO
1959
Rignano Garganico
Italian
Cristiano STASI
10.
34827/20
Studio Commerciale Rinaldi-Varraso&Associati v. Italy
29/07/2020
STUDIO COMMERCIALE RINALDI-VARRASO&ASSOCIATI
Foggia
Italian
Cristiano STASI
11.
26376/21
Enoagrimm Import-Export S.r.l. v. Italy
14/05/2021
ENOAGRIMM IMPORT-EXPORT S.R.L.
2016
Foggia
Italian
Cristiano STASI
12.
28730/21
Monirr S.r.l. v. Italy
14/05/2021
MONIRR S.R.L. - 2002
Lucera (FG)
Italian
Cristiano STASI
13.
20133/22
Holding Gestione Immobiliare S.r.l. v. Italy
15/04/2022
HOLDING GESTIONE IMMOBILIARE S.R.L. -
2016
Foggia
Italian
Cristiano STASI