Published on 28 August 2023
FIRST SECTION
Application no. 3795/22
Emanuele Sebastiano Bruno VERSACI
against Italy
lodged on 22 December 2021
communicated on 10 July 2023
SUBJECT MATTER OF THE CASE
The application concerns the dismissal by the head of the local police authority (questore) of the applicant’s request, lodged pursuant to Article 1 § 643 of Law no. 190 of 23 December 2014, to obtain the “public security licence” (licenza di pubblica sicurezza) required for lawfully exercising in Italy a bookmaking activity on behalf of a foreign company. The questore found that the applicant did not comply with the “good conduct” (buona condotta) requirement provided for by Article 11 § 2 of the Consolidated Act on Public Security (Royal Decree no. 773 of 18 June 1931), on account of the following reasons: (i) he used to associate with persons who had criminal and police records; (ii) his brother had been prosecuted, although acquitted, for drug-related crimes and was under special police supervision; and (iii) some relatives of him had relationships with convicted individuals. Because of the dismissal of the applicant’s request, which was upheld by the competent domestic courts and became definitive on 6 May 2021, the applicant could not exercise the professional activity he had previously engaged with.
The applicant complains under Article 8 of the Convention of the allegedly unlawful and disproportionate interference with his right to respect for his private-social and professional life. Further relying on the procedural limb of Article 8 of the Convention and on Article 6 of the Convention, the applicant complains of several alleged violations of the equality of arms and his rights of defence in the administrative and judicial phases of the proceedings which, in his view, put him in a position of undue disadvantage vis-à-vis the domestic authorities.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention (see Niemietz v. Germany, 16 December 1992, § 29, Series A no. 251‑B, Bărbulescu v. Romania [GC], no. 61496/08, § 71, 5 September 2017, and Denisov v. Ukraine [GC], no. 76639/11, §§ 95 and 103 et seq., 25 September 2018)?
1.1. If so, was the interference in accordance with the law, in terms of Article 8 § 2, that is to say, in accordance with a law which was sufficiently accessible, foreseeable as to its effects, and compatible with the rule of law (see, among others, Brazzi v. Italy, no. 57278/11, § 39, 27 September 2018)?
In particular:
(i) is the notion of “good conduct” enshrined in Article 11 § 2 of the Consolidated Act on Public Security, as interpreted by the domestic case-law (see, inter alia, Constitutional Court, judgment no. 440 of 16 December 1993, Council of State, judgments no. 4078 of 21 July 2000, no. 1466 of 19 March 2003, no. 1502 of 23 March 2004, and no. 3094 of 20 May 2009) capable of sufficiently delimiting the scope of discretion conferred to the domestic public security authority, thereby preventing arbitrariness (see, mutatis mutandis, Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts), De Tommaso v. Italy [GC], no. 43395/09, § 109, 23 February 2017, and Ivashchenko v. Russia, no. 61064/10, § 73, 13 February 2018)?
(ii) does the domestic legal framework provide sufficient guarantees against arbitrariness, in particular by enabling the domestic courts to review the legality, necessity and proportionality of the decisions adopted by the public security authority (see, mutatis mutandis, Karastelev and Others v. Russia, no. 16435/10, § 71, 6 October 2020, and Pişkin v. Turkey, no.33399/18, § 209, 15 December 2020)?
1.2. If so, was the interference necessary in a democratic society and proportionate, in terms of Article 8 § 2? In particular, was the decision-making process leading to the dismissal of the applicant’s request fair and sufficiently thorough, and such as to afford due respect to the interests safeguarded by Article 8 (see Fernández Martínez, cited above, §147, ECHR 2014 (extracts), and Lazoriva v. Ukraine, no. 6878/14, § 63, 17 April 2018)?
2. Is Article 6 § 1 of the Convention applicable, under its civil limb, to the circumstances of the present case (see, mutatis mutandis, De Tommaso, cited above, § 151, and Eminağaoğlu v. Turkey, no. 76521/12, § 60, 9 March 2021)? If so:
2.1. was the decision of the domestic public security authority either delivered in conformity with the requirements of Article 6 § 1 of the Convention, or subject to subsequent control by a judicial body having full jurisdiction and providing the guarantees of Article 6 § 1 (see Sigma Radio Television Ltd v. Cyprus, nos. 32181/04 and 35122/05, § 151, 21 July 2011, and Pişkin, cited above, § 126)?
2.2. was the applicant put in a position of an undue disadvantage vis-à-vis the administrative authorities (see, mutatis mutandis, Stankiewicz v. Poland, no. 46917/99, § 69, ECHR 2006‑VI)?