CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 février 2025

.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 } Published on 3 March 2025   FIRST SECTION Application no. 18419/23 Gianluigi TORZI against Italy lodged on 27 April 2023 communicated on 14 February 2025 SUBJECT MATTER OF THE CASE The application concerns the applicant’s detention on remand and the imposition on him of a pecuniary sanction due to the declaration of inadmissibility of his appeal on points of law. The applicant’s detention on remand was ordered on 13   July   2022 by the division of the Milan District Court responsible for reconsidering security measures ( tribunale del riesame ), pursuant to Article   274 §   1 (c) of the Code of Criminal Procedure (CCP), notably on account of the existence of a “real   and ongoing risk” ( concreto e attuale pericolo ) of the commission of serious criminal offences of the “same kind” ( stessa specie ) as for the one for which the criminal proceedings were pending (market manipulation through the commission of fraudulent acts). The applicant appealed on points of law to the Court of Cassation, submitting that there was conflicting case-law concerning the interpretation of the notions of “real and ongoing risk” and “same kind” of criminal offence which justify detention on remand on account of the need to prevent the commission of further crimes. As regards both notions, the applicant requested the Court of Cassation to refer the interpretative questions to its Joint Chambers in order to resolve the inconsistencies in the existing case-law as to how strictly those notions should be interpreted. He justified the request by citing thirteen judgments of the Court of Cassation which had adopted one approach, and fourteen judgment of the same court which had adopted a different approach. On 20 March   2023 the Court of Cassation, although partly admitting the existence of different approaches in the case-law, dismissed as inadmissible his appeal on points of law without ruling on the request, finding the appeal “manifestly ill-founded”. Pursuant to Article 616   §   1 of the CPP, the declaration of inadmissibility implies the imposition of a pecuniary sanction. The Court of Cassation therefore imposed on the applicant a sanction of 3,000   euros   (EUR). The applicant complains under Article 5   §   1 and Article 6   §   1 of the Convention of an alleged breach of the principle of legal certainty, due to the conflicting case-law of the Court of Cassation. The applicant further complains under Article   1 of Protocol No.   1 to the Convention of an alleged violation of his right to the peaceful enjoyment of possession. In his view, there were no clear and express criteria for distinguishing between the “ill-founded” nature, which is a decision on the merits, and the “manifestly ill-founded” nature, which is a decision on admissibility, of appeals on point of law, also due to the absence of any reasoning in the Court of Cassation’s judgment. As a consequence, the imposition and determination of the sanction provided for under Article   616 §   1 of the CCP was unforeseeable and arbitrary. QUESTIONS TO THE PARTIES 1.     Was the applicant’s detention “lawful” and ordered “in accordance with a procedure prescribed by law”, for the purposes of Article 5   §   1 of the Convention?   1.1.     In particular, was the national law authorising the deprivation of liberty sufficiently precise and foreseeable in its application and consequences (see Nasrulloyev v. Russia , no.   656/06,   §§   70-71 and   77, 11   October   2007; Mooren v. Germany [GC], no.   11364/03, §   76, 9   July   2009; and Khlaifia and Others v. Italy [GC], no.   16483/12, §   92, 15   December   2016)?   1.2.     In this connection, the parties are invited to clarify whether the domestic courts’ interpretation of Article 274   §   1 (c) of the Code of Criminal Procedure regarding the following notions was sufficiently foreseeable and consistent:   (a) “real and ongoing risk” ( concreto e attuale pericolo ) (see, for example, Court of Cassation, First Section, judgments nos.   10347 of 20   January   2001, and   25214 of 3   June   2009; Court of Cassation, Third Section, judgment   no.   49318 of 27   October   2015; Court of Cassation, Fifth Section, judgment no.   70 of 24   September   2018; Court of Cassation, Second Section, judgment no.   2870 of 26   October   2021; and contrast with Court of Cassation, Third   Section, judgment no.   36319 of   5 July   2001; Court of Cassation, Fifth   Section, judgment no.   52301 of 14   July   2016; Court of Cassation, Sixth   Section, judgment no.   47887 of 25   September   2019; and Court of Cassation, First Section, judgment no.   30402 of 9   September   2020).   (b) criminal offences of the “same kind” as the ones for which the criminal proceedings are pending ( della stessa natura di quello per cui si procede ) (see, for example, Court of Cassation, Third Section, judgment no.   49318 of 27   October   2015, and Court of Cassation, Joint Sections, judgment no.   20769 of 28   April   2016, and contrast with Court of Cassation, Second Section, judgment no.   47891 of 7   September   2016, and Court of Cassation, Second   Section, judgment no.   11137 of 6   March   2020).   1.3.     If so, was the applicant deprived of his liberty in breach of Article   5   §   1   (c) of the Convention (see Kurt v.   Austria [GC], no.   62903/15, §   187, 15   June   2021)?   2.     Has there been an interference with the applicant’s right to peaceful enjoyment of possessions, guaranteed by Article 1 of Protocol No.   1 to the Convention, on account of the imposition of the pecuniary sanction provided for by Article 616   §   1 of the Code of Criminal Procedure (see, mutatis mutandis , Perdigão v. Portugal [GC], no.   24768/06,   §   61, 16   November 2010; Cindrić and Bešlić v. Croatia , no.   72152/13,   §   92, 6   September   2016; and National Movement Ekoglasnost v.   Bulgaria , no.   31678/17,   §§   70-71, 15   December 2020)?   2.1.     If so, was the interference in accordance with the principle of lawfulness, within the meaning of Article 1 of Protocol No.   1? In particular:   (a)     was Article   616 § 1 of the Code of Criminal Procedure, as interpreted in the domestic case-law (see, for example, Constitutional Court, judgment no.   186 of 13 June 2000, and Court of Cassation, Second Section, judgment no.   21317 of 16 June 2020) sufficiently clear and foreseeable with regard to the hypotheses in which the pecuniary sanction can be imposed (see, mutatis mutandis , Lekić v. Slovenia [GC], no.   36480/07, §   95, 11   December   2018, and Žaja v.   Croatia , no.   37462/09, §§   103-04, 4   October   2016)?   (b)     were the conditions established in the domestic law and case-law complied with in the applicant’s case (see, mutatis mutandis , East West Alliance Limited v. Ukraine , no.   19336/04,   §   167, 23   January   2014)?   2.2.     If so, was the measure proportionate to the aim pursued or did the applicant suffer an excessive burden? In particular:   (a)     did the applicant’s appeal on point of law have any prospect of success (see, mutatis mutandis , Cindrić and Bešlić , cited above, §   107)?   (b)     did the Court of Cassation provide relevant and sufficient reasons, in the light of the circumstances of the case, for imposing the measure on the applicant (see , mutatis mutandis , National Movement Ekoglasnost , cited above,   §   83)?   2.3.     The parties are invited to provide relevant domestic case-law concerning the criteria for distinguishing between “ill-founded” and “manifestly ill-founded” appeals on point of law lodged with the Court of Cassation for the purposes of applying Article   616   §   1 of the Code of Criminal Procedure.