CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 octobre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } Published on 30 October 2023   FIRST SECTION Application no. 26187/14 Riccardo PETRIGNANI against Italy and 4 other applications (see list appended) communicated on 9 October 2023 SUBJECT MATTER OF THE CASE The applications concern the confiscation of the applicants’ assets, which were considered to be equivalent to the proceeds of crime (“confiscation by equivalent means”; confisca per equivalente ). The applicants have been found responsible, jointly with others, of crimes which give rise to the confiscation of assets by equivalent means. In particular, they were subject to the confiscation of an amount equivalent to all the proceeds of the crimes, regardless of the amount of profit obtained by each person, on the basis of the principle of joint liability. More detailed information on the national decisions, as well as the applicants’ complaints, are indicated in the appended table. The applicants complain under Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention of the lack of a foreseeable legal basis of the confiscation, in particular in regard to its scope, the application of the principle of joint liability and the allegedly disproportionate character of the confiscation, which concerned sums significantly higher than the profits received by each applicant.     QUESTIONS TO THE PARTIES The complaints raised in each application, and the corresponding questions which the parties are requested to answer, are indicated in the appended table.   1.     Taking into account the characterisation of the contested measure by the national courts, can the confiscation of the proceeds of crime by equivalent means be considered a penalty within the meaning of Article 7 §   1 of the Convention (see, for general principles, G.I.E.M. S.R.L. and Others v.   Italy [GC], nos. 1828/06 and 2 others, § 211 ss., 28 June 2018; see also Vannucci v. San Marino (dec.) , no. 33898/15, § 41, 28 March 2017; compare and contrast Voiculescu v. Romania , no. 5325/03, §§ 12-13, 3 February 2009)? If so: 1.1 was the confiscation of the proceeds of crime by equivalent means based on a sufficiently foreseeable law, as interpreted by the domestic courts (see, for example, Court of Cassation, judgments no. 26654 of 27 March 2008 and no. 33282 of 19 July 2012)? 1.2. taking into account the principle of joint liability, were the applicants punished for an offence committed by other persons, in breach of Article 7 of the Convention (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, §§ 246 and 270-272, 28 June 2018)?   2.     Was the confiscation of the applicants’ assets in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1 to the Convention? In particular, was the confiscation of all the proceeds of the crimes, on the basis of the principle of joint liability, sufficiently foreseeable (see, for example, Court of Cassation, judgment no. 26654 of 27 March 2008 and Court of Cassation, judgment no. 33282 of 19 July 2012)?   3.     Was the confiscation of all the proceeds of the crimes, on the basis of the principle of joint liability, proportionate to the aim pursued, as required by Article 1 of Protocol No. 1 to the Convention (see G.I.E.M. S.R.L. and Others , cited above, § 301)? Were national authorities required to carry out an individualised assessment of the proportionality of the confiscation, having regard to the profits actually received by the applicants (see, mutatis mutandis , Rummi v. Estonia , no. 63362/09, § 108, 15 January 2015)?   APPENDIX No. Application no. Case name Introduction date Applicant’s name Year of birth Place of residence Nationality Representative’s name Location Criminal conviction and legal basis for confiscation National decisions Complaints and questions to the parties 1. 26187/14 Petrignani v. Italy 17/03/2014 Riccardo PETRIGNANI 1972 Turin Italian Andrea CIANCI Turin Applicant convicted, following a plea-bargain, of membership of a criminal association (Article 416 of the Italian Criminal Code, "CC") and tax-related crimes (Articles 2 and 8 of Legislative Decree no. 74/2000).   Confiscation applied on the basis of Article 1 § 143 of Law no. 244/2007 and Article 322 ter CC Turin preliminary investigations judge,   15 October 2012 Court   of   Cassation, 18   September 2013 Art. 7 – penalty for third party’s crime (question no. 1.2)   Prot. 1 Art. 1 - disproportionate interference (question no. 3) 2. 7952/17 Tonolo v. Italy 19/01/2017 Filippo TONOLO 1965 Milan Italian Pasquale PANTANO Milan Applicant convicted, following a plea-bargain, of fraud (Article 640 bis CC) and bankruptcy fraud (Article 223 of Royal Decree no. 267/1942). Confiscation applied on the basis of articles 640 quater and 322 ter CC Turin preliminary investigations judge, 13 October 2015 Court of Cassation, 21 July 2016 Art. 7 - lack of legal basis and penalty for third party’s crime (questions nos. 1.1 and 1.2) Prot. 1 Art. 1 - disproportionate interference (question no. 3) 3. 17807/18 Nicita v. Italy 06/04/2018 Antonino NICITA 1951 Taormina Italian Francesco LAFACE Taormina Applicant convicted, following a plea-bargain, of money laundering (Article 648 bis CC), unlawful financial activities (Article 132 of Legislative Decree no. 385/1993) and unlawful transfer of assets (Article 12 quinquies of Law Decree   no.   306/1992). Confiscation applied on the basis of Article 648 quater and 322 ter. Messina preliminary hearing judge, 31 March 2017 Court of Cassation, 13 October 2017 Prot. 1 Art. 1 - disproportionate interference (question no. 3) 4. 24511/21 Carbone v. Italy 20/04/2021 Vincenzo CARBONE 1951 Giovinazzo Italian Vincenzo Claudio DEMICHELE Bitonto Applicant convicted, following a plea-bargain, of fraud, falsification of documents and non-execution   of   repair   works   (Articles640,   677   and 479   CC). Confiscation ordered on the basis of Articles 640 quater and 322 ter CC Taranto preliminary investigations judge, 31 January 2020 Court of Cassation, 20 October 2020 Art. 7 – penalty for third party’s crime (question no. 1.2)   Prot. 1 Art. 1 - disproportionate interference (question no. 3) 5. 31161/22 Curci v. Italy 16/06/2022 Ruggiero Massimo CURCI 1968 Carapelle Italian Tullio PADOVANI Pisa Applicant convicted of tax-related crimes (Articles 3 and 10 quater of Legislative Decree no.   74/2000). Confiscation applied on the basis of Article 12 bis of Legislative Decree no. 74/2000. Milan District Court, 15 January 2019 Milan Court of Appeal, 17 March 2021 Court of Cassation, 23 March 2022 Art. 7 - lack of legal basis (question no. 1.1) Prot. 1 Art. 1 - lack of legal basis (question no. 2) Prot. 1 Art. 1 - disproportionate interference (question no. 3)