CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 22 juin 2023

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page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4EC10A73 { width:26.87pt; display:inline-block } .sB995083 { width:143.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s66E9FC38 { font-family:Arial; font-size:8pt; vertical-align:super; color:#000000 } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s6EED30A4 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial } .sDB9EB187 { font-weight:bold } .s67CAFE05 { margin-top:14pt; margin-left:18.45pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s4AA8B09A { margin-top:6pt; margin-bottom:6pt; text-align:justify; font-size:10pt }   FIRST SECTION CASE OF GIULIANO GERMANO v. ITALY (Application no. 10794/12)   JUDGMENT   Art 8 • Private and family life • Police caution imposed on the applicant in stalking-prevention proceedings without adequate legal protection against abuse • No time-limit for the effects of the caution and no right to obtain its review or revocation • Applicant’s exclusion from decision-making process to a significant degree in the absence of demonstrated reasons of urgency • Insufficient judicial review by the judicial authorities of the factual foundation and of the legality, necessity and proportionality of the measure • Absence of relevant and sufficient reasons • Insufficient procedural safeguards   STRASBOURG 22 June 2023   FINAL   06/11/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Giuliano Germano v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Marko Bošnjak , President ,   Krzysztof Wojtyczek,   Alena Poláčková,   Ivana Jelić,   Gilberto Felici,   Erik Wennerström,   Raffaele Sabato , judges and Renata Degener, Section Registrar, Having regard to: the application (no.   10794/12) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Italian national, Mr   Giuliano Germano (“the applicant”), on 5 January 2012; the decision to give notice to the Italian Government (“the Government”) of the complaints concerning Articles 6 and 8 of the Convention, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 23 May 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application raises issues under Article 8 of the Convention. It concerns allegations that the domestic provision regulating the police caution ( ammonimento ) imposed on the applicant in stalking-prevention proceedings by the head of the local police authority ( questore ) did not meet the standard of the “quality of the law” for the purposes of this provision. It further concerns the question of whether, in the domestic proceedings which led to the imposition of that measure on the applicant, he was allowed to participate in the decision-making process to a degree sufficient to provide him with the requisite protection of his interests, whether the reasons adduced by the domestic authorities to justify the impugned measure were relevant and sufficient, and whether the measure was subjected to sufficient judicial scrutiny by the competent domestic courts. THE FACTS 2.     The applicant, Mr Giuliano Germano, is an Italian national who was born in 1956 and lives in Savona. He was represented before the Court by Mr   R. Sturlese, a lawyer practising in La Spezia. 3.     The Government were represented by their Agent, Mr L. D’Ascia, Avvocato dello Stato . 4.     The facts of the case may be summarised as follows. 5.     In 2009 the relationship between the applicant and his wife ended, and on 3 May 2009 she left the family home with their daughter. 6.     On 6 May 2009 she lodged a criminal complaint ( querela ) against the applicant in respect of ill-treatment allegedly inflicted on her the night she left the family home. The proceedings instituted against the applicant were discontinued on 22 May 2015, as his wife withdrew her criminal complaint. 7.     On 13 November 2009 the applicant’s wife lodged a request ( richiesta ) with the questore of Savona, asking it to issue a police caution as provided for by section   8 of Decree-Law no. 11 of 23 February 2009 on urgent measures for public security and combating sexual violence and stalking (“Decree-Law no.   11/2009”), converted into Law no. 38 of 23   April 2009 (“Law no.   38/2009”; see paragraph 26 below). The request detailed several episodes of physical and verbal violence allegedly inflicted by the applicant on his wife while they were living together and after she had left the family home. The applicant’s wife further reported several telephone calls made by the applicant to her, their daughter’s babysitter and some mutual friends, allegedly aimed at controlling her personal life and isolating and intimidating her. 8 .     The police station in question opened an inquiry and collected seventeen witness statements from the people referred to in the applicant’s wife’s request. Among those witnesses, a friend of the applicant’s wife confirmed that episodes of verbal abuse inflicted by the applicant on his wife had taken place in her presence; another stated that he had been told about an episode of physical assault; and another stated that the applicant had telephoned him several times with the aim of obtaining information about his wife’s life after she had left the family home. The other fourteen statements did not confirm the applicant’s wife’s version of the facts, and expressly excluded that the applicant had insulted her in their presence or had tried to isolate her. 9.     In an order no. 20406 of 27   November   2009, the questore of Savona issued a police caution. The applicant was personally notified of the caution on 28 November 2009 at the Savona police station. 10 .     The reasoning in the minutes of the caution read as follows: “In respect of the request lodged on 13 November 2009 ... expressly requesting that a caution be issued in respect of Germano Giuliano ... indicated as being responsible of the crime of stalking committed against [the person who applied for the caution], although she has decided not to lodge a criminal complaint; Taking into account that, as indicated in the request, Germano Giuliano, husband of the person who applied for the caution, from whom she is currently separating, in the last three years, but with episodes becoming more frequent from May of the current year, [carried out the following] repeated acts such as insults uttered in the presence of other persons, telephone calls made in private and at the workplace to the person who applied for the caution and other persons who are close to the former spouses, sending text messages, persistent and repeated requests, also made with a potentially threatening attitude, aimed at controlling with insistent, obsessive and intimidating tones [his wife’s] movements and, more generally, her habitual daily life, caused to the person who applied for the caution a persisting and serious state of anxiety, fear and concern for her personal safety; Considering that all the inquiries undertaken by the police and the additional documents gathered, all on the record – irrespective of the context in which Mr   Germano’s acts took place, namely the pending judicial separation of the spouses and the episodes related to custody of their seven-year-old daughter – and notwithstanding the fact that some of the episodes are of no relevance, show a situation of particular seriousness, sufficiently and objectively confirmed, which is composed of proven episodes, including physical assault, which are in addition the object of pending criminal proceedings and which cannot therefore be mentioned, but also cannot be underestimated when assessing the overall circumstances and the facts reported, and which are objectively capable of provoking in Mr   Germano’s wife a state of, at least, psychological distress and, therefore, of making her request well founded; [T]he necessity and urgency [of the measure] to prevent further stalking behaviour being carried out [has been noted] ...” 11 .     The content of the caution issued in respect of the applicant, as indicated in the minutes delivered to him, reads as follows: “Mr Germano Giuliano [is] invited to behave in accordance with the law and cautioned that, should he repeat the behaviour which led to the present order being issued, he will be referred to the competent judicial authority pursuant to Article   612 ‑ bis [of the Criminal Code], even in the absence of a criminal complaint ( querela ) lodged by the person who applied for the caution, in accordance with the [procedure], provided for under section 8 of Decree-Law no. 11/2009, converted into Law no. 38 of 23 April 2009 ... to institute criminal proceedings for the same crime against an individual who has been ‘cautioned’. Mr Germano Giuliano is also informed that the penalty of up to four years of imprisonment established for the crime provided for by Article 612- bis [of the Criminal Code] ‘will be increased if the act is committed by an individual who has been cautioned’ in accordance with section 8 of Decree-Law no. 11/2009 ...” 12.     On 14 January 2010 the applicant appealed against the measure before the Liguria Regional Administrative Court ( Tribunale Amministrativo Regionale , “TAR”). He complained, in particular, of the alleged violation of his right to take part in administrative proceedings guaranteed by section 7 of Law no. 241 of 7   August 1990 (“Law no. 241/1990”; see paragraph 24 below), as he had not been notified of the institution of the administrative proceedings and had not been allowed to express his views; of the caution’s alleged lack of reasoning; of the alleged inadequacies of the inquiries undertaken by the police; and of the alleged absence of the conditions required by section   8 of Decree-Law no. 11/2009 for the imposition of the caution. The applicant further raised the issue of the constitutionality of section 8 of Decree-Law no.   11/2009, arguing that it was at odds with Articles   3, 24, 97, 111 and 113 of the Italian Constitution in the light of the alleged violation of the adversarial principle, the rights of defence and the equality of arms. Lastly, the applicant claimed compensation for the damage allegedly suffered on account of the imposition of the measure on him. 13.     The applicant further requested the provisional suspension of the order pending the proceedings before the TAR. On 4 February 2010 the TAR dismissed the suspension request, observing that there was no risk of irreparable harm to the applicant’s rights and interests. 14 .     In its judgment no. 8145 of 30 September 2010, the TAR found that the applicant’s participation and defence rights, guaranteed by section 7 of Law no. 241/1990, had been violated and, therefore, upheld the applicant’s claim and annulled the police caution issued against him. 15 .     The TAR observed that the measure at issue, which seriously and directly affected the cautioned individual’s right to personal image, could not be imposed on the mere basis of the information and evidence provided by the person who applied for the caution. Such elements had to be compared with the information and evidence provided by the individual affected by the measure, in proceedings which had to have as their basis an appropriate and sufficient inquiry and which allowed the person affected by the measure to express his or her views. According to the TAR, an exception to the respect of the individual’s participation rights was justified in cases of strict urgency and necessity, which had to be sufficiently demonstrated and justified in the reasoning of the order. The TAR further observed that a police caution was not an administrative act whose content was predetermined ( atto vincolato ), as it presupposed a complex assessment of the relevant factual circumstances. Therefore, the restriction of the individual’s participation rights was not justified. 16.     Lastly, the TAR dismissed as inadmissible the applicant’s claim for compensation, observing that he had not provided any evidence capable of demonstrating that he had suffered damage as a consequence of the imposition of the police caution. 17.     On 3 January 2011 the Ministry of the Interior appealed against the judgment before the Consiglio di Stato . In its appeal, the Ministry observed that the first-instance judgment had not taken into account the urgency which characterised stalking-prevention proceedings; it further argued that the participation of the applicant in the administrative proceedings would not have changed the outcome, as the questore had found that the applicant’s wife’s request was well founded. 18 .     The Ministry further requested the suspension of the impugned judgment. On 11 February 2011 the Consiglio di Stato upheld the request. It observed that, in the light of the preventive purpose of the police caution, there was a serious risk of irreparable harm to the applicant’s wife. 19.     In its judgment no. 4365 of 19 July 2011, the Consiglio di Stato upheld the Ministry’s appeal, quashed the first-instance judgment, and confirmed the police caution. It acknowledged that the measure had serious consequences on the applicant’s personal sphere, as it entailed the possibility to prosecute him for the crime of stalking even in the absence of a criminal complaint lodged by the victim and the automatic application of an aggravating circumstance in the event of conviction for that crime. 20.     However, the Consiglio di Stato emphasised the aim of the caution, which was to prevent potentially serious and irreparable harm to the alleged stalking victim. In the Consiglio di Stato ’s view, the stalking-prevention proceedings were by their very nature characterised by the need for a prompt and immediate response. In the light of the above, it considered that the failure to notify the applicant of the institution of the administrative proceedings before the questore and to hear him before the imposition of the measure had not amounted to a violation of the applicant’s participation rights, as he could have obtained a full review of the decision by directly addressing a request for review to the police authority ( Questura ) or by lodging an appeal with the higher administrative authority ( ricorso gerarchico ), namely the local prefect ( prefetto ), pursuant to the relevant provisions of Presidential Decree no. 1199 of 24   November 1971 (“Decree   no.   1199/1971”; see paragraph 23 below). 21 .     The Consiglio di Stato further noted that the caution did not lack reasoning and did not have its basis in insufficient inquiries, as the questore had stated that the investigations undertaken by the police had demonstrated the insulting and intimidating behaviour inflicted by the applicant on his wife. 22.     Lastly, the Consiglio di Stato observed that the failure to hear the applicant before issuing the caution had been based on the urgent need to prevent a potential escalation of violence perpetrated against his wife. RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW Presidential Decree no. 1199 of 24 November 1971 (Simplification of procedures concerning administrative appeals) 23 .     Decree no. 1199/1971 regulates the appeal which may be lodged against administrative acts and decisions before the higher administrative authority. The relevant provisions read as follows: Article 1: Appeal “Non-final administrative measures may be appealed against before the higher administrative authority, whose decision is not subject to further appeal, on grounds of legitimacy and of merits, by any interested party. ... The notification of the measures subject to appeal under this Article shall indicate the time-limit and the body to which the appeal must be submitted.” Article 5: Decision “If it finds that the appeal should not have been brought, the competent authority shall declare it inadmissible. If it finds a rectifiable irregularity, it shall grant the appellant a time-limit to rectify it and, if the appellant fails to do so, it shall declare the appeal inadmissible. If it considers that the appeal is ill-founded, it shall dismiss it. If it upholds the appeal for lack of competence, it shall quash the measure and remit the matter to the competent body. If it upholds the appeal on other grounds of lawfulness or on the merits, it shall quash or reformulate the measure, or, if necessary, refer the matter back to the competent body that issued it. The decision must be reasoned, and it must be issued and notified to the body or agency that issued the contested measure, the appellant and other interested parties to whom the appeal has been notified, either by administrative notification or by registered letter with acknowledgement of receipt.” Article 6: Failure to reply “If the deciding authority does not communicate its decision within ninety days from the institution of the appeal, the latter shall be deemed to have been dismissed, and the contested measure may be appealed against before the competent judicial authority, or through extraordinary appeal to the President of the Republic.” Law no. 241 of 7 August 1990 (New provisions concerning administrative proceedings and the right of access to administrative documents) 24 .     Law no. 241/1990 regulates administrative proceedings and the right of access to administrative documents. The relevant provisions read as follows: Section 3: Reasoning “1.     Any administrative measure ... must be reasoned, except for the cases provided for in subsection 2. The reasoning shall indicate the factual and legal reasons that justified the decision of the public administration, in relation to the results of the preliminary investigation undertaken. 2.     A statement of reasons shall not be required for regulatory measures and for normative measures and general content measures. ... 4.     Every document served on the addressee must indicate the time-limit and the authority before which an appeal is possible.” Section 7: Notification of the institution of proceedings “1.     Where there are no impediments arising from specific reasons to expedite the proceedings, the institution of proceedings shall be notified, in the manner provided for in section 8, to the persons in respect of whom the final measure is to have direct effect and to those who by law must intervene. Similarly, in the absence of the above-mentioned reasons, where a measure may cause prejudice to identified or easily identifiable persons other than its direct addressees, the administration is required to notify them of the institution of the proceedings in the same manner. 2.     In the cases referred to in subsection 1, this is without prejudice to the power of the administration to adopt, even before the notifications referred to in that paragraph, provisional measures.” Decree-Law no. 11 of 23 February 2009 (Urgent measures for public security and combating sexual violence and stalking), converted into law on 23 April 2009 (Law no. 38/2009) 25.     Decree-Law no. 11/2009 introduced in the Italian legal order urgent measures for public security and combating sexual violence and stalking. Section 7 introduced a new provision into the Criminal Code (Article   612 ‑ bis ), introducing the criminal offence of stalking ( atti persecutori ). Article   612- bis , as in force when the facts relevant for the present application took place, read as follows: “Unless the act constitutes a more serious criminal offence, anyone who repeatedly threatens or harasses someone in such a way as to cause a persistent and serious state of anxiety or fear, or to create a well-founded fear for his or her own safety or that of a close relative or a person linked to him or her by a relationship of affection, or to force him or her to alter his or her lifestyle, shall be punished by imprisonment of between one year and six years and six months.” 26 .     Section 8 of Decree-Law no. 11/2009 introduced the measure of the police caution, to be issued in stalking-prevention proceedings by the head of the local police authority ( questore ). It reads as follows: “1.     Until a criminal complaint ( querela ) for the crime provided for by Article 612 ‑ bis of the Criminal Code, introduced by section 7, has been lodged, the injured party may report the facts to the public security authority by lodging a request ( richiesta ) with the questore for a caution to be issued against the author of the behaviour. The request is transmitted to the questore without delay. 2.     If the request ( richiesta ) is well founded, the questore , having obtained, if necessary, information from the investigative bodies and heard the persons having knowledge of the facts, shall orally caution the subject against whom the measure has been requested, inviting him or her to behave in accordance with the law, and draw up minutes ( processo verbale ) of the caution. Copies of the minutes are provided to the person who applied for the caution and to its subject. The questore adopts measures concerning weapons and ammunitions. 3.     The punishment inflicted for the criminal offence provided for by Article 612- bis of the Criminal Code is increased if the offence is committed by a person who has already received a caution in accordance with the present section. 4.     If the offence is committed by a person who has already received a caution under this section, criminal proceedings for the crime provided for by Article 612- bis of the Criminal Code may be instituted even in the absence of a criminal complaint ( querela ) lodged by the injured party.” RELEVANT DOMESTIC CASE-LAW Case-law on the nature of the measure and the conditions under which the caution set out in section 8 of Decree-Law no. 11/2009 can be issued 27 .     The relevant domestic case-law has clarified that police caution imposed under section 8 of Decree-Law no.   11/2009 fulfils a “preventive and deterrent function”, as it aims to prevent repetition of the behaviour criminalised by Article 612- bis of the Criminal Code causing irreparable harm to the victim ( Consiglio di Stato , Third Section, judgments nos. 4365 of 19 July 2011 and 4077 of 25 June 2020; see also Court of Cassation, judgment no. 17350 of 19   August 2020). In the light of this function, the questore is not requested to assess the criminal responsibility of the alleged stalker, but to ascertain the probability that such behaviour has taken place and to analyse the potential existence of a danger for the future ( Consiglio di Stato , Third Section, judgment no. 4077 of 25   June 2020). 28 .     From a factual point of view, the imposition of the measure requires the establishment of the same behaviours which constitute the criminal offence provided for by Article 612- bis of the Criminal Code ( Consiglio di Stato , Third Section, judgments nos. 2599 of 7   September   2015 and 4077 of 25   June 2020). In particular, in judgment no.   2045 of 21 April 2020, the Consiglio di Stato , Third Section, has stressed that a police caution can only be issued where repeated behaviour which can be qualified as “threat or harassment” which produces negative consequences on the physical, psychological and existential state of the victim and restricts his or her self ‑ determination has taken place. 29 .     Article 612- bis of the Criminal Code is indeed composed of three constitutive elements: (i) repeated acts of threats or harassment; (ii)   causing the victim a state of anxiety or fear for his or her safety or that of a close relative, or the alteration of the victim’s daily habits; (iii)   the existence of a causal nexus between the first and second element. The interpretation of the criminal offence of stalking was clarified by the Constitutional Court in judgment no. 172 of 11 June 2014, in which it held that the provision did not lack clarity and foreseeability, as it was a specification of the criminal offences of threat and harassment provided for, since its original formulation, in Articles 612 and 660 of the Criminal Code. 30 .     The difference between the establishment of situations leading to the imposition of a police caution and criminal prosecution for the crime of stalking lay, on the one hand, in whether a criminal complaint has been lodged by the victim and, on the other hand, in the burden of proof applied. The case ‑ law has clarified that for the purposes of the imposition of a caution, conclusive evidence of the commission of the crime is not necessary ( Consiglio di Stato , Third Section, judgment no.   4077 of 25 June 2020). The measure requires the existence of circumstantial evidence of the fact that the behaviour criminalised by Article   612- bis has taken place and, on the basis of a prognostic assessment, that it may take place again in the future ( Consiglio di Stato , Third Section, judgments nos. 1085 of 15 February 2019 and 4077 of 25 June 2020). 31.     The Consiglio di Stato has also held that the measure cannot have as its basis solely the version of the facts submitted by the person who applied for the caution. The police authority is required to undertake sufficient inquiries in order to assess whether the request is well founded ( Consiglio di Stato , Third Section, judgment no. 4077 of 25 June 2020). 32 .     It has also clarified that, in accordance with section   3 of Law no.   241/1990 (see paragraph 24 above), the existence of such circumstantial evidence is to be duly demonstrated and indicated in the minutes of the caution (among others, Consiglio di Stato , Third Section, judgment no.   1085 of 15 February 2019). The reasoning included in the minutes must allow the assessment of the legitimate exercise of administrative powers, in order to avoid the imposition of the measure on the basis of mere and unproven suspicions ( Consiglio di Stato , Third Section, judgments nos. 2108 of 29   March 2019 and 7883 of 10 December 2020). Case-law on the obligations arising from the caution 33 .     In its judgment no. 17350 of 19   August 2020, the Court of Cassation (Fifth Section) has clarified that the police caution invites the addressee to refrain from behaviour that falls within the scope of application of Article 612- bis of the Criminal Code. 34.     According to the Court of Cassation, section 8 of Decree-Law no.   11/2009 was aimed at delimiting the scope of discretion conferred on the questore , namely at clarifying the conditions for the adoption of the measure by making reference to the criminal offence of stalking (see paragraph 28 above). 35.     However, as far as the addressee of the measure is concerned, the Court of Cassation has clarified that the caution does not impose new legal obligations, as it merely reminds him or her to behave in accordance with Article 612- bis of the Criminal Code. It also advises him or her of the “strengthened” ex lege consequence which would follow from repeating such behaviour, namely the possibility of prosecuting such a crime even in the absence of a criminal complaint lodged by the victim and the application of an aggravating circumstance in the event of conviction. 36.     In the light of those observations, the Court of Cassation concluded that section 8 of Decree-Law no. 11/2009 did not lack clarity and foreseeability. Case-law on the individual’s right to take part in stalking ‑ prevention proceedings under section 8 of Decree-Law no. 11/2009 37 .     In the early cases concerning the police caution, the domestic judicial authorities considered that it was an administrative measure which directly affected individuals’ interests from the moment of its adoption. As a consequence, it remained subject to the respect of the right to take part in proceedings and of the adversarial principle enshrined in Law no. 241/1990, and to the obligatory assessment by the questore of the elements provided by the affected individual in the exercise of his or her right to defence (Liguria TAR, Second Section, judgments nos.   31 of 12   January   2010 and 208 of 15   April 2010). Similarly, in judgment no. 5676 of 21 October 2011, the Consiglio di Stato , Third Section, observed that section 8 of Decree-Law no.   11/2009 expressly stipulated that before issuing a caution, the questore had to hear the persons with knowledge of the relevant facts, including the addressee of the caution. 38.     In the subsequent case-law, two conflicting approaches were developed. The majoritarian approach, following the case-law cited in the previous paragraph, considers that the preventive function of the caution does not justify, per se , the derogation from the individual’s right to be heard in proceedings. By contrast, a minority of the case-law considers that, in the light of the preventive function of the caution, the questore retains full discretion in assessing whether to notify the addressee of the institution of the proceedings and whether to hear him or her before the adoption of the measure. 39 .     According to the majority of the case-law, the stalking-prevention proceedings must be carried out in accordance with the adversarial principle, in order to allow the addressee of the measure to express his or her views ( Consiglio di Stato , Third Section, judgments nos. 5676 of 21 October 2011, 4187 of 9 July 2018 and 1085 of 15 February 2019). The participation rights of the addressee can be derogated from exclusively in exceptional circumstances of urgency which must be assessed by the questore ( Consiglio di Stato , Third Section, judgment no. 6038 of 9 December 2014). Such specific reasons, namely the existence of an imminent risk of serious harm, must be duly indicated in the reasoning of the caution ( Consiglio di Stato , Third Section, judgment no. 2108 of 29 March 2019). 40 .     The minoritarian approach, by contrast, considers that the stalking ‑ prevention proceedings are characterised, by their very nature, by the need to prevent a risk of irreparable harm to the person who applied for the caution. As a consequence, it remains within the discretionary powers of the questore to assess whether to hear the addressee. The failure to hear the addressee of the measure in the absence of demonstrated reasons of urgency cannot be invoked, according to such an approach, as a ground for annulment of the measure ( Consiglio di Stato , Third Section, judgments nos.   2419 of 6   June   2016 and 4241 of 13   October 2016). Case-law on the nature of the judicial review of the caution 41 .     According to the Consiglio di Stato ’s case-law, administrative courts have the power to assess whether the measure had sufficient factual grounds, was sufficiently reasoned and was justified in the circumstances of each case. For example, in judgment no. 5676 of 21 October 2011, cited above, the Consiglio di Stato found that the caution lacked reasoning, as there had been no assessment of the elements provided by the individual who had been cautioned, which were merely noted in the text. On the merits, the Consiglio di Stato noted that there were no demonstrated factual elements justifying the imposition of the measure (see also judgments nos. 5259 of 6 June 2018 and 5445 of 21 April 2020, in which the Consiglio di Stato , Third Section, assessed and established the facts in the light of the available evidence, in order to conclude whether the imposition of the caution was justified in the specific circumstances of the cases). Case-law on the review and revocation of public security administrative measures 42 .     The applicable legal framework does not set out a time-limit for the effects of the caution, nor does it provide for a procedure of periodic review. According to the general principles applicable to administrative measures, the addressee may request the administrative authority to review the measure, but the latter retains full discretion in deciding whether to exercise its powers of review. Therefore, the administrative authority is not legally obliged to proceed to such a review or to revoke the measure owing to the mere passage of time ( Consiglio di Stato , Sixth Section, judgment no. 3634 of 9 July 2013). The individual has the right to appeal before the competent administrative court against the dismissal of the request for review or the failure to reply on the part of the administrative authority ( Consiglio di Stato , Third Section, judgment no. 4365 of 19   July   2011, which was the judgment complained of in the present case). 43 .     When an individual lodges a review request, the passage of time from the imposition of the measure is one of the elements taken into account by the administrative authority (for example, Bolzano TAR, judgment no.   262 of 24   June 2015). However, under the available case-law, the caution issued in stalking-prevention proceedings is an “instantaneous” measure which is not subject to review or revocation requests. Accordingly, the individual is not entitled to challenge before the administrative courts the implicit or explicit dismissal of a review or revocation request lodged with the questore (ibid.; see also Genova TAR, judgment no. 826 of 22 July 2022). Moreover, pursuant to the case-law of the Court of Cassation, the revocation of the measure by the administrative authority would not preclude its legal effects in the criminal proceedings, namely the possibility of prosecuting the addressee of the measure in the event of him or her reiterating the stalking behaviour, even in the absence of a criminal complaint ( querela ), and the imposition of a heavier penalty in the event of conviction (see Court of Cassation, Fifth Section, judgment no. 34474 of 16 September 2021). 44 .     According to some recent developments, concerning another public security measure, the power of review conferred on the administrative authority must be interpreted in the light of the constitutional principles of good administration, reasonableness and proportionality. In judgment no. 508 of 20   February 2019, the Sicily TAR, Second Section, considered that when a public security measure affects an individual, and the legal framework does not provide for a time-limit for its effects, the individual must be accorded the right to obtain a review of the justification for the measure. Should a change in the relevant circumstances and the passage of time no longer justify it, the measure must be revoked, as it would not fulfil any public interest (see also Campania TAR, Fifth Section, judgment no. 2859 of 21   May   2015). In those situations, the competent administrative courts might quash the implicit dismissal of the review request deriving from the failure to reply of the administrative authority with which it had been lodged and order the latter to exercise that power and adopt a reasoned decision in respect of the request. INTERNATIONAL LAW AND MATERIALS Instruments concerning the rights of the individual in administrative procedures Committee of Ministers Resolution 77 (31) on the protection of the individual in relation to the acts of administrative authorities 45 .     This Resolution, adopted by the Committee of Ministers on 28   September 1977, established principles applying to the protection of physical and legal persons in administrative procedures with regard to any individual measures or decisions which are taken in the exercise of public authority, and which are of such nature as directly to affect their rights, liberties or interests. 46 .     Article I of the Resolution, concerning the right to be heard, reads as follows: “1.     In respect of any administrative act of such nature as is likely to affect adversely his rights, liberties or interests, the person concerned may put forward facts and arguments and, in appropriate cases, call evidence which will be taken into account by the administrative authority. 2.     In appropriate cases the person concerned is informed, in due time and in a manner appropriate to the case, of the rights stated in the preceding paragraph.” 47 .     According to the Appendix, the implementation of the principles established in the Resolution must take into account the requirements of good and efficient administration, as well as the interests of third parties and major public interests. Therefore, the cited interests can justify the modification or exclusion of the principles established in the Resolution, either in particular cases or in specific areas of public administration. However, such modifications or derogation should be in conformity with the fundamental aim of the Resolution, which is the achievement of the highest possible degree of fairness. 48.     Article IV, which concerns the reasoning of administrative acts, reads as follows: “Where an administrative act is of such nature as adversely to affect his rights, liberties or interests, the person concerned is informed of the reasons on which it is based. This is done either by stating the reasons in the act, or by communicating them, at his request, to the person concerned in writing within a reasonable time.” Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states on good administration 49.     This Recommendation, adopted by the Committee of Ministers on 20   June 2007, lays down principles and rules which should be applied by public authorities in their relations with private persons, in order to achieve good administration (Article 1). 50 .     Article 8, establishing the principle of participation, reads as follows: “Unless action needs to be taken urgently, public authorities shall provide private persons with the opportunity through appropriate means to participate in the preparation and implementation of administrative decisions which affect their rights or interests.” 51 .     Article 14, which enshrines a right of private persons to be heard with regard to individual decisions, reads as follows: “If a public authority intends to take an individual decision that will directly and adversely affect the rights of private persons, and provided that an opportunity to express their views has not been given, such persons shall, unless this is manifestly unnecessary, have an opportunity to express their views within a reasonable time and in the manner provided for by national law, and if necessary with the assistance of a person of their choice.” 52 .     Article 17 § 2, concerning the form of administrative acts, enshrines a duty to state the reasons for the measure: “Appropriate reasons shall be given for any individual decision taken, stating the legal and factual grounds on which the decision was taken, at least in cases where they affect individual rights.” The Charter of Fundamental Rights of the European Union 53 .     The relevant parts of Article 41 of the Charter read as follows: “1.     Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union. 2.     This right includes: –     the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;” 54.     The Court of Justice of the European Union (CJEU) has held that the right to be heard guarantees every person the opportunity to make known his or her views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. The relevant judgments of the CJEU were cited in the Court’s judgment in Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 55, 17   May 2016. Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) 55 .     The Istanbul Convention was ratified by Italy through Law no.   77 of 27 June 2013. The relevant provisions read as follow: Article 34 – Stalking “Parties shall take the necessary legislative or other measures to ensure that the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety, is criminalised.” Article 50 – Immediate response, prevention and protection “1.     Parties shall take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by o