CEDH · CASELAW;CLIN;ENG — 22 juin 2023

.s3ABFC313 { font-size:10pt } .sD4B5322E { margin-top:12pt; margin-bottom:12pt; text-align:justify } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s97EB40D9 { margin-top:12pt; margin-bottom:14pt; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s8B6C6D43 { margin-top:0pt; margin-bottom:0pt; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } Legal summary June 2023 Giuliano Germano v. Italy - 10794/12 Judgment 22.6.2023 [Section I] Article 8 Article 8-1 Respect for family life Respect for private life Police caution imposed on the applicant in stalking-prevention proceedings without adequate legal protection against abuse: violation Facts – In November 2009, after a policy inquiry, the head of the local Police Authority ( questore ), issued a police caution against the applicant at his wife’s request after she had left him. In her request she had reported him of harassing her, their daughter’s babysitter and some mutual friends, alleging that he was trying to control her personal life and was isolating and intimidating her. The caution warned the applicant “to behave in accordance with the law” and not to repeat the behaviour which had led to its imposition. In January 2010 the applicant appealed against the measure before the Regional Administrative Court which found that his participation and defence rights had been violated and, therefore, annulled the police caution issued against him. In July 2011 the Consiglio di Stato upheld the appeal of the Ministry of the Interior, quashed the first-instance judgment, and confirmed the police caution. Law – Article   8: (1) Applicability and whether there was an interference – The caution had been formulated in such a way as to restrict, at least in principle, the applicant’s possibility to have contact with his daughter and relations with friends. Further, given that it had been adopted in respect of behaviours that fell within the definition of “stalking” and stated that the applicant had been harassing and intimidating his wife, it had been capable of having a stigmatising effect on. It had thus been capable of affecting the applicant’s right to family life, private social life and his reputation and its imposition, at the very least, had had a chilling effect on their exercise. Accordingly, Article   8 was applicable under both limbs and there had been an interference with the applicant’s rights. (2) Whether the measure was in accordance with the law – The caution had had an accessible basis in national law, namely section 8 of Decree-Law no.   11 on urgent measures for public security and combating sexual violence and stalking (Decree-Law no.   11/2009), which was aimed at combating sexual violence and the crime of stalking. (a) Whether the domestic law sufficiently delimited the discretion conferred on the questore – The text of section   8, considered in its context and the light of its aim, had been formulated with a sufficient degree of clarity in order to delimit the scope of discretion conferred on the questore and to prevent arbitrariness. The domestic authorities interpreted that provision in the sense that stalking-prevention proceedings might be instituted, and a caution issued regarding those behaviours which fell within the definition of the criminal offence of stalking provided for by Article 612-bis of the Criminal Code. According to the domestic case-law, conclusive evidence of the commission of the crime was not necessary to issue a caution; it required the existence of serious reasons for believing, on the basis of circumstantial evidence characterised by an adequate degree of reliability, that the behaviour prohibited had taken place and might take place again in the future. (b) Whether the caution was formulated with sufficient precision to enable the applicant to regulate his future behaviour – As the caution had been expressly aimed at preventing the commission of the crime of stalking, the applicant could have foreseen which behaviours had been prohibited, namely those criminalised by Article   612- bis of the Criminal Code. In this connection, the Court noted the subsequent national case-law had confirmed that the expression “to behave in accordance with the law” had to be understood as a reference to the behaviours criminalised by that Article. Moreover, the applicant had been warned not to repeat the behaviour which had led to the adoption of caution. Therefore, on the basis of the text of the caution, the applicant had known or should have known that the behaviour proscribed had corresponded to the crime of stalking, and in particular, to acts of “threat and harassment” repeated in such a way as to cause his wife a persisting and serious state of anxiety, fear and concern for her personal safety. (c) Whether the applicable legal framework provided sufficient guarantees against arbitrariness – The aim of the measure fell withing the scope of Article   53 of the Istanbul Convention concerning restraining or protection orders in the context of domestic violence, which stipulated that such measures could, if necessary, be issued at the request of one party only, with immediate but temporary effect. The domestic legal framework, as interpreted by the domestic courts, struck a fair balance between the competing interests. In the stalking-prevention proceedings at issue in the present case the effectiveness of the caution, namely the achievement of the aim of protecting the right to physical and psychological integrity of the individual who sought the adoption of the measure, often depended on a rapid decision‑making process. The Court therefore accepted that in cases of urgency, duly indicated in the reasoning of the caution’s minutes and subjected to the judicial review of the competent administrative courts, the questore might decide that the right to be heard could be derogated from (in the sense of Article   53). Consequently, the domestic legal framework allowed the individual affected by the measure to be involved in the decision-making process to a degree which, in the light of the nature and extent of the interference in question and of its purpose, was sufficient to provide him or her with the requisite protection of their interests. Further, the competent administrative courts had the power to exercise a sufficient judicial review of the reasons for the measure as indicated by the questore in the minutes of the caution and the relevant evidence. However, the fact that the domestic legal framework at the time did not provide a time-limit for the measure, or the right to obtain a review or revocation of the measure if it was no longer justified, was problematic from the point of view of the guarantees against arbitrariness imposed by the principle of legality. Article   53 §   2 of the Istanbul Convention stipulated that restraining or protection orders in cases of domestic violence were “to be issued for a specified period or until modified or discharged”. Nevertheless, in view of its conclusions regarding the necessity and proportionality of the measure in the specific circumstances of the case, the Court considered it was not necessary to assess whether that factor alone led to the conclusion that the interference in question had not been “in accordance with the law”, within the meaning of Article   8. It thus proceeded on the assumption that it had. (3) Whether the measure pursued a legitimate aim – The interference had pursued the legitimate aims of the prevention of disorder and crime and the protection of health, or the protection of the rights and freedoms of others. With the purpose of fulfilling these legitimate aims Italy had ratified the Istanbul Convention. (4) Whether the measure was necessary in a democratic society and proportionate – (a) Whether the applicant was sufficiently involved in the decision-making process which led to the imposition of the measure – The applicant had not been heard by the questore before the issuing of the caution which had been granted on the basis of the arguments and evidence presented by the person who had applied for it. In this connection, after receiving a complaint of domestic violence the authorities were under a duty to conduct an “autonomous” and “proactive” assessment of the risk and a decision on the measures to be taken must take into consideration the entirety of the evidence available to the authorities. Further, the minutes of the caution had not set out the pressing circumstances which had allegedly necessitated an urgent measure. The Consiglio di Stato had not carried out an independent review of whether there had been an imminent risk for the applicant’s wife’s safety or other reasons justifying the failure to hear the applicant. No justification had been provided for the derogation from the applicant’s right to be heard in the administrative proceedings before the questore . As the domestic authorities during the inquiry had heard seventeen witness statements from the people referred to in the applicant’s wife’s request, the Court saw no reason why they could not have heard the applicant as well. In addition, the approach followed by the Consiglio di Stato in this case was at odds with the domestic case-law at the material time in accordance with which the reasons of necessity and urgency had to be duly demonstrated in the light of the circumstances of each specific case and subjected to the judicial scrutiny of the administrative courts. (b) Whether the domestic authorities provided relevant and sufficient reasons on the merits of the adopted measure – While reiterating the importance of the aim pursued by the police caution at issue, the Court considered that several factors militated in favour of strict scrutiny. First, the measure produced serious consequences, as it entailed the possibility of prosecution for the criminal offence 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. Secondly, the obligations imposed on the applicant had been worded in very general terms, the measure remained in force for an indefinite period of time and, at least at the time, there had been no right to obtain a periodic review or reassessment of it. Thirdly, the measure had been adopted without previously allowing the applicant to put forward his arguments. In this connection, the minutes of the caution had lacked in reasoning, and the relevant facts, in addition to being referred to “as indicated by the person who applied for the caution”, had been worded in an extremely generic fashion. There was no reference to the fact that most of the witnesses had not confirmed the applicant’s wife’s version of the facts. The minutes mentioned “additional documents gathered” without indication what these had been and what conclusions had been drawn from them. The reasoning had taken as its starting-point the hypothesis of the facts as alleged by the applicant’s wife, and had stipulated that those facts had been proven, without mentioning the inquiries that had been undertaken and without assessing in what way the results of those inquiries had confirmed the original hypothesis. Therefore, such reasoning did not allow the Court to assess in what way the administrative authority had assessed the evidence gathered. The measure was an “oral” caution, and the minutes were a record of the inquiries undertaken by the police and a summary of the assessment of the questore which, in cases of urgency, must be drafted in a very short time. However, that could not exempt the domestic authorities from the obligation to provide for relevant and sufficient reasons justifying measures interfering with rights protected under Article   8, also in the light of the need to guarantee a full judicial review of those reasons. In any case, no reasons of urgency had been shown by the domestic authorities. (c) Whether the measure was subjected to a sufficient judicial review – A thorough judicial review had been all the more necessary in this case, given the failure of the questore to provide relevant and sufficient reasons for the adopted measure. However, the Consiglio di Stato had merely held that the caution had been legitimate in the light of the questore without undertaking an assessment of the available evidence. That had not been a “sufficient scrutiny”, within the meaning of the Court’s case-law. It had failed, in particular, to examine the critical aspect of the case, namely whether the questore had been able to demonstrate the existence of specific facts serving as a basis for the assessment that the applicant had constituted a danger to his wife. The Consiglio di Stato had confined itself to a purely formal examination of the decision to impose the caution. Accordingly, the judicial authorities had not carried out a sufficient judicial review of the factual foundation and of the legality, necessity and proportionality of the measure. (d) Conclusions – The applicant had been excluded from the decision-making process to a significant degree in the absence of demonstrated reasons of urgency, the domestic authorities had failed to give relevant and sufficient reasons justifying the measure and that, in view of how the Consiglio di Stato had carried out the review of the matter, any safeguards it had provided the applicant had been limited. In sum, the domestic authorities had not afforded the applicant the adequate legal protection against abuse to which he had been entitled under the rule of law in a democratic society. The interference with the applicant’s right to private and family life had not been “necessary in a democratic society”. Conclusion : violation (unanimously). Article   41: EUR 9,600 in respect of non-pecuniary damage. (See also Sanchez Cardenas v.   Norway , 12148/03, 4   October 2007, Legal Summary ; Mikolajová v.   Slovakia , 4479/03, 18   January 2011, Legal Summary ; Karastelev and Others v.   Russia , 16435/10, 6   October 2020, Legal Summary ; Kurt v.   Austria [GC], 62903/15, 15   June 2021, Legal Summary ; Resolution 77 (31) of the Committee of Ministers of the Council of Europe to Member States on the protection of the individual in relation to the acts of administrative authorities of 28   September 1977; Recommendation CM/Rec(2007)7 of the Committee of Ministers of the Council of Europe to Member States on good administration of 20   June 2007; Council of Europe Convention on preventing and combating violence against women and domestic violence, the Istanbul Convention , adopted on 11   May 2011; Explanatory Report to the Istanbul Convention )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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