CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 septembre 2025

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } Published on 22 September 2025   FIRST SECTION Application no. 5296/20 Sandro TARTAGLIA against Italy and 2 other applications (see list appended) communicated on 2 September 2025 SUBJECT MATTER OF THE CASE The applications concern the foreseeability of the applicants’ conviction for abuse of official position under Article 323 of the Criminal Code (“the CC”). The applicants were brought to trial, inter alia , on a count of abuse of official position ( abuso di ufficio ). The offence was provided for by Article   323 of the CC and it punished the public official, or the person responsible for a public service ( incaricato di pubblico servizio ) who intentionally obtained an undue financial advantage by acting in violation of statutory rules of conduct in the discharge of his or her functions. The applicants were charged in their capacity of general director (Mr   Tartaglia, “the first applicant”), president of the board of auditors (Mr   Carlesso, “the second applicant”) and head of services (Mr Campedelli, “the third applicant”) of a special undertaking created by the Verona municipality ( Azienda Speciale del Comune di Verona – hereinafter “AGEC ” ) under Section 114 of Legislative Decree no. 267 of 2000. In these capacities they were accused of having manipulated the 2012 selection for the appointment of the new general director of AGEC, acting in breach of the rules on publicity, impartiality and fairness of the procedure prescribed by the law governing recruitment in the public administration. The Verona judge for the preliminary hearing, following trial under the summary procedure, found the applicants guilty as charged, considering that, given their roles, and given the fact that AGEC could be characterised, in substance, as part of a public administration (in the form of a “non-economic public entity”; ente pubblico non economico ), the constitutive elements of the offence of abuse of official position had been made out. The Venice Court of Appeal upheld the conviction, as did the Court of Cassation by judgment no. 35095 of 29 April 2019, filed with the registry on 31   July 2019. Throughout the proceedings the applicants contended that their conviction had no legal basis, since AGEC should be characterised as a “public economic entity” ( ente pubblico economico ), that is a private actor, not bound by the rules governing the performance of the public administration. In support of their contention, they relied on judgments by the Council of State ( inter alia , judgments no. 931 of 2011 and no. 712 of 2012) and by the Combined Civil Divisions of the Court of Cassation ( inter alia , judgments no. 14101 of 2006, and no. 96 of 2011), in which special undertakings under Section 114 of Legislative Decree no. 267 of 2000 had been characterised as private actors, or in which the recruitment of their employees had been considered as being subjected to civil law rather than to public law. The domestic courts dismissed their claims, emphasising the tight links connecting AGEC to the Verona municipality and relying on different judgments by the Council of State ( inter alia , judgments no. 4850 of   2000, no.   820 of 2014, no. 1842 of 2015, and no. 4435 of 2017) and by the Combined Civil Divisions of the Court of Cassation ( inter alia , judgments no. 15105 of 2005, no. 6573 of 2006, and no. 48036 of 2014), according to which special undertakings instituted by municipalities had been considered as falling within the notion of public administration. The Court of Cassation, relying on its own case-law ( inter alia , judgments no. 38431 of 2017, no.   39350 of 2017, and no. 58235 of 2018), observed that, in any event, the applicants should be characterised as public officials or at least as persons responsible for a public service. Under Article 6 § 1 and Article 7 of the Convention, the applicants complain of the unforeseeability of the characterisation of AGEC as a non-economic public entity and, consequently, of their conviction for abuse of official position which, in their view, stemmed from the application of an unfavorable line of case-law arisen subsequently to their actions. The first applicant further complains that the Court of Cassation had included him within the categories of public officials and persons responsible for a public service relying on a line of case-law posterior to the material time. QUESTIONS TO THE PARTIES 1.     Was there a sufficiently clear and accessible legal basis for the applicants’ conviction, as required by Article 7 § 1 of the Convention (see Kononov v. Latvia [GC], no. 36376/04, § 187, ECHR 2010)?   1.1.     In particular, did the relevant provisions on the basis of which the domestic courts convicted the applicants (namely, Article 323 of the Criminal Code and the provisions referred to therein, that is the provisions defining special undertakings and the notion of “public administration”) define with sufficient precision their scope (see   Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law [GC], request no. P16-2019-001, Armenian Constitutional Court, §§ 72 et seq., 29   May 2020 ; compare Žaja v. Croatia , no. 37462/09, §   97 in fine , 4 October 2016; and Kokkinakis v. Greece , 25 May 1993, §   40, Series A no. 260-A)?   2.     In the light of the relevant domestic law and of the domestic court’s interpretation of it at the material time, could the applicants foresee, if need be with appropriate legal advice, that their actions could make them criminally liable (see Žaja , cited above, § 102; compare Contrada v.   Italy   (no.   3) , no. 66655/13, § 75, 14 April 2015;   Tristan v. the Republic of Moldov a , no. 13451/15, §§ 62-64, 4 July 2023)?       APPENDIX List of applications:   No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 5296/20 Tartaglia v. Italy 17/01/2020 Sandro TARTAGLIA 1955 Vérone Italian Emanuele FRAGASSO 2. 7891/20 Carlesso v. Italy 30/01/2020 Marco CARLESSO 1978 Vérone Italian Iolanda DE FRANCESCO 3. 8726/20 Campedelli v. Italy 31/01/2020 Stefano CAMPEDELLI 1959 Vérone Italian Federico LUGOBONI