SECOND SECTION

CASE OF VARVARA v. ITALY

( Application no. 17475/09 )

JUDGMENT

( Merits )

[Extracts]

STRASBOURG

29 October 2013

FINAL

24/03/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Varvara v. Italy ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Danutė Jočienė , President, Guido Raimondi, Dragoljub Popović , András Sajó , Işıl Karakaş , Paulo Pinto de Albuquerque, Helen Keller, judges, and Stanley Naismith , Section Registrar ,

Having deliberated in private on 1 October 2013 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 17475/09) 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 Vincenzo Varvara (“the applicant”), on 23 March 2009 .

2 . The applicant was represented by Mr A. Gaito , a lawyer practising in R ome . The Italian Government (“the Government”) were represented by their Agent, Mrs E. Spatafora and their co-agent, Ms P. Accardo .

3 . The applicant alleged that the confiscation was incompatible with Articles 7 and 6 § 2 of the Convention, and with Article 1 of Protocol N o . 1.

4 . On 21 May 2012 the application was communicated to the Gove rnment. I t was also decided , in accordance with Article 29 § 1 of the Convention, that the Chamber would decide simultaneously on the admissibility and the merits of the case.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1943 and lives in Gravina di Puglia .

A. The develop ment plan

6 . The applic ant submitted a develop ment plan ( piano di lottizzazione ) to the municipality of Cassano delle Murge with a view to building housing near the Mercadante forest , On 31 October 1984 the municipality approved the plan . On 1 March 1985 the applic ant conclu ded a develop ment agreement ( convenzione di lottizzazione ) with the municipality and obtained the building permits for an initial group of buildings .

7 . On 6 February 1986 a ministerial decree of 1 August 1985 was published in the Official Gazette . This d ecree stated that the land around the Mercadante forest was to be g iven protected landscape status and as such be subject to the provisions of Law n o. 1497/1939, which imposed compulsory prior ministerial authorisation f or the issue of building permits .

8 . The municipality of Cassano delle Murge challenged the Ministerial Decree before the Puglia Administrative Court and , under a decision of 10 March 1993, was partially successful . Pursuant to that decision ( which is not included in the case file ) the land covered by the applicant ’ s plan was no longer subject to landscape constraints .

9 . Furthermore , two l aws had come into force in the meantime . The first ( Law n o. 431/1985) had granted the regions exclusive legislative powers in the landscape protection field . The second ( Regional Law n o. 30/1990) made the land adjacent to the forests subject to landscape constraints necessitating authorisation from the Region , except where the development plan had been approved prior to 6 June 1990. Under the combined effect of these laws , plans to be approved after this date had to receive a favourable opinion from the relevant regional committee .

10 . I n 1993 the applicant submitted to the municipality of Cassano delle Murge a variant of the plan already approved in 1984. The case file shows that the new variant had been necessary because the original plan had accidentally included an area comprising an aqueduct . I t had therefore been necessary to reduce the size of the project by 3 , 917 square metres . Moreover , the owners of the neighbouring plots had decided not to continue with the project , and so it had had to be modified, particularly where the layout of the buildings was concerned . That variant was approved by the municipality of Cassano delle Murge on 30 May 1994.

11 . On 19 August 1994 the applic ant conclu ded a development agreement with the municipality . The latter issued him with the building permits .

12 . On 21 May 2007 the municipality issued a certificate to the effect that all the buildings constructed by the applic ant prior to 30 September 2004 had been in conform ity with landscape legislation .

B. Criminal proceedings

13 . Criminal proceedings were brought against the applicant for unlawful land develop ment. On 6 February 1997 and interim attachment order was issued in respect of the land and buildings ( seventeen blocks containing four apartments each ).

14 . In a judgment of 1 June 1998, the Acquaviva delle Fonti D istrict C ourt noted that the applic ant had built seventeen apartment blocks in accordance with the variant approved in 1994 and the building permits issued by the municipality . However , the court considered that this variant was no t mere ly a modification of the 1984 project but rather a new develop ment plan which had to comply with the provisions which had since come into force . Given that the provisions in question required a favourable opinion from the regional committee responsible for town planning and that the applic ant had failed to apply for such an opinion , the building permits issued by the municipality had to be considered in opera tive .

The situation complained of was therefore that of an unlawful develop ment project which had damaged a protected natural site ( section 20 a) and c) of Law n o. 47/1985 and Article 734 of the Criminal C ode). Having taken account of the mitigating circumstances , the court imposed a nine- month suspended prison sentence and a fine on the applicant . I t ord ered the confiscation, in favour of the municipality , of the land and buildings co v ered by the impugned develop ment plan .

15 . Th e applic ant appealed .

16 . In a judgment of 22 January 2001, the Bari C ourt of A ppeal allow ed the applic ant ’ s appeal and acquitted him on the merits ( perché il fatto non sussiste ). The court considered that there was only one de velop ment plan , which had been authorised in 1984, that is to say long before the entr y into force of the 1985 ministerial decree and Law n o. 431/1985. It held that in 1994 the applic ant had submitted a simple amendment to the already approved plan . The applic ant ’ s land had therefore not been covered by a landscape protection measure and there had been no unlawful land develop ment.

17 . The public prosecutor and the State Counsel appealed on point s of law .

18 . In a judgment given on 17 May 2002, the Court of C assation set aside the impugned decision and remitted the case for reconsideration .

19 . In a judgment of 5 May 2003, the Bari C ourt of A ppeal con victed the applic ant of unlawful land develop ment on the grounds that the variant of the develop ment plan constitu ted a new, separate p lan .

20 . Th e applic ant appealed on point s of law .

21 . In a judgment of 10 December 2004, the Court of C assation allow ed the applic ant ’ s appeal, set aside the impugned decision and remitted the case for reconsideration .

22 . In a judgment of 23 March 2006, the Bari Court of Appeal discontinued the proceedings on the ground that the offences had been time ‑ barred since the end of 2002. The court observed that pursuant to the case-law of the Court of C assation, i t was mandatory to order the confiscation in question whether the defend ant was acquitte d on the merits ( on grounds of il fatto non sussiste ) o r the case was time- barred , where the development plan was objective ly incompatible with spatial planning provisions . The court considered the variant as a new land develop ment plan, which meant that regional authorisation would have had to be obtained before the building permits could be issued . Furthermore , the C ourt of A ppeal ord ered the confiscation of the land and the buildings there on within the meaning of section 1 of Law n o. 47/1985.

23 . Th e applic ant appealed on point s of law .

24 . In a judgment of 11 June 2008, deposit ed with the registry on 1 October 2008, the Court of C assation d ismissed the applic ant ’ s appeal .

...

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

44 . The applicant complained of the illegality of the confiscation of his property on the ground that this penalty had been imposed without any prior conviction. He allege d a violation of Article 7 of the Convention, which provides :

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”

...

B . Merits

1. The applicant ’ s submissions

46 . The applicant complained that a criminal penalty had been imposed on him even though he had not been convicted of any offence. He observe d that under Italian law, criminal prosecutions could not be brought if the criminal offence in question wa s time-barred. In the present case, according to the applicant , the offence had been time-barred as far back as August 2001. However , the criminal proceedings had continued until 2008 for the sole purpose of imposing a penalty .

Th e applic ant further point ed to the inequality between the following two situations. In the n ormal course of events courts had to acquit defendant s in cases of insufficient or contradictory evidence ( Article 530 of the C ode of Criminal P rocedure [C C P] ) o r where the defendant could not be held responsible beyond any reasonable doubt ( Article 533 C C P). Nevertheless , if the offence wa s time-barred , courts could only acquit defendant s on the merits if they had clearly not committed the o f fen c e in question, the facts ha d n ever occurred , or the facts did not constitute an offence or did not come under criminal law ( Article 129 § 2 C C P). The burden of proof had therefore been re ver s ed inasmuch as the applic ant had had to attempt to prove that he was clear ly innocen t , whi ch situation was in compatible with the safeguards o f a fair trial and with the Convention.

47 . Moreover , the applic ant r eiterated that the land develop ment plan had been authorised by the municipality of Cassano delle Murge , that he had built the housing in accordance with the building permits issued to him , and that he had been assur ed that his plan was in conformity with the applicable provisions . In his view , the conduct of the authorities in first of all authorising and even encouraging the building project and then radical ly chang ing their attitude a fter allowing the work to be completed was h ighly question able. Lastly , the applic ant p ointed out that the fact that his neighbours had decided not to continue with the develop ment plan was immaterial to whether or not the p lan itself complied with national law .

2. The Government ’ s submissions

48 . The Government first of all observe d that following the finding of a violation in the judgment Sud Fondi ( Sud Fondi srl and Others v. Italy , n o. 75909/01, 20 January 2009), the Constitutional Court ( judgmen t n o. 239 of 24 July 2009) had ruled that national law should be interpreted in accordance with the Convention , and that according to the principles set out in the judgment Sud Fondi , “ confiscation cannot be automati cally implemented following unlawful land development , without having regard to of lia bility for the facts ” .

Furthermore , Law n o. 102 of 3 August 2009 had introdu ced a procedure for lifting confiscation measure s and set out the conditions for compensating persons having suffered a confiscation incompatible with the Convention.

49 . Th e Government then observe d that under Italian la w the courts still considered the impugned confiscation to be an administrative sanction. For this reason, the imposition of this sanction in the present case was compatible with A rticle 7 of the Convention.

Unlike Sud Fondi , in the instant case the applic ant had not been acquitted on the merits but had had the benefit of a decision not to prosecute because the offence had become time-barred . The Government submitted that t he applicant could have waived the implementation of the time limita tion and requested the court to decide the case under the terms of A rticle 129 § 2 of the C ode of Criminal Procedure . At all event s , with reference to the case ‑ law of the Court of C assation ( judgment n o. 5857 of 16 February 2011), the Government pointed out that the instant case had not been time ‑ barred before the commencement of the criminal proceedings , which pointed to the legality of the sanction i mposed .

The construction work carried out had objective ly breached the relevant legal provisions , and therefore the offence of unlawful land development ha d been made out , because the develop ment plan had been unlawful . According to the Government , the applic ant had known of the existence of the landscape constraints . The applic ant ’ s neighbours had allegedly dropped out of the project in order to avoid involvement in real-estate speculation . A rticle 7 of the Convention had not been viol ated because the applicable provisions had been accessible and foreseeable . In proceeding as he had done the applic ant had known that he was running the risk of having his property confiscated . This penalty had therefore been a foreseeable consequence .

50 . The Government requested that should the Court conclu de that there had been a violation of the Convention, regard should be had to these submissions for the purposes of just satisfaction.

3. The Court ’ s assessment

a) Applicability of A rticle 7 of the Convention

51 . The Court reiterates that in the case of Sud Fondi ( Sud Fondi srl and others v. Italy , decision cited above) it held that the impugned confiscation should be interpreted as a penalty. A rticle 7 of the Convention is therefore appli cable .

b) Applicable principles

52 . The guarantee enshrined in A rticle 7, which is an essential element of the rule of law , occupies a pr ominent place in the Convention protection system , as is underlined by the fact that A rticle 15 authorises no derogation from it in time of war or other public emergency . It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (see S.W. v. the United Kingdom , 22 November 1995, § 34, Series A no. 335- B , and C.R. v . the Uni ted Kingdom of 22 November 1995, Series A n os. 335-B and 335-C, § 32).

53 . A rticle 7 § 1 embodies the principle that only the law can define a crime and prescribe a penalty ( nullum crimen , nulla poena sine lege ) . While it prohibits , in particular , extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy (see, among other authorities, Coëme and Others v. Belgium , nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII).

54 . I t follows that the law must clearly define offences and the relevant penalties ( see Achour v . France [GC], n o. 67335/01, § 41, E CH R 2006 ‑ IV). This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him criminally liable .

55 . When speaking of “law” (“droit”) Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability (see, in particular, Cantoni v. France , 15 November 1996, § 29, Reports of Judgments and Decisions 1996-V ; S.W., cited above , § 35; and Kokkinakis v . Greece , 25 May 1993, §§ 40-42, Series A n o. 260 ‑ A). In any system of law, including criminal law, however clearly drafted a legal provision may be , there is an inevitable element of judicial interpretation . T here will always be a need for clarification of dubious points and for adaptation to changing circumstances . Indeed, in the Convention States, the progressive development of the criminal law through judicial law-making is a well ‑ entrenched and necessary part of legal tradition . Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen ( see Streletz , Kessler and Krenz v . Germany [GC], n os. 34044/96, 35532/97 and 44801/98, § 50, E CH R 2001 ‑ II).

56 . Foreseeability depends to a considerable degree on the content of the law concerned, the field it is designed to cover and the number and status of those to whom it is addressed . A law may still satisfy the requirement of “foreseeability” where the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails ( see Pessino v . France , n o. 40403/02, § 33, 10 October 2006).

57 . The Court must therefore verify that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Murphy v . the Uni ted Kingdom , n o. 4681/70, Commission decision , 3 and 4 October 1972, Re ports of Decisions 43 ; and Coëme and Others , cited above , § 145).

c) Appl ication of these principles to the present cas e

58 . The Court r eiterates that in the Sud Fondi case ( see Sud Fondi srl and Others v . Italy , cited abov e, §§ 112 and 114) it found that the enforcement of the confiscation despite the decision to acquit the applicant companies had been unfounded and arbitrary and breached A rticle 7 of the Convention. The acquitt al had been ordered on the ground that the applic ant compani es had committed an unavoidable and excus able error in interpreting the law .

59 . In the present case , the applic ant h a d benefited from a decision not to prosecute on the ground that the offence of unlawful land develop ment was sta t ut e-barred , and a criminal penalty had been imposed on him , namely confiscation of the buildings and plots of land covered by the impugned development plan . The Court must consider whether the imposition of such a penalty is compatible with A rticle 7 of the Convention.

60 . Firstly , the Court notes that under the terms of the applicable provision ... , confiscation of the unlawful building s and the unlawfully develop ed land is authorised where the criminal courts have issued a “final decision” establishing the unlawful nature of the development in question . This provision does not specify that the “ final decision ” must be a con vic tion.

The national courts interpreted this provision as meaning that it was possible to impose the penalty without a con vic tion where they regarded it as an administrative sanction . The Court note s in this connection that there is a domestic- law principle to the effect that defendants cannot be puni shed without a con vic tion. I n particular , no penalty can be imposed where the offence is statute-barred . Furthermore , the interpretation of the applicable provision by the national courts was prejudicial to the defendant .

61 . Secondly, the Court fails to see how punishing a defendant whose trial has not resulted in a conviction could be compatible with Article 7 of the Convention, which provision clearly sets out the principle of l egality in criminal law.

62 . Given that no one can be found guilty of an offence which is not provided for by law and that no one can incu r a penalty which is not provided for by l aw , the first consequence is clearly to prohibi t the national courts from interpreting the law in an extensive manner detrimental to the defendant , otherwise he or she could be puni shed for co nduct which is not defined in law as an offence .

63 . Another consequence of cardinal importance flows from the principle of l egality in criminal law, namely a prohibi tion o n puni shing a person where the offence has been committed by another .

64 . The Court has previously examined this issue from the angle of A rticle 6 § 2 of the Convention.

65 . In the case of A.P., M.P. and T.P. v . S witzerland , 29 August 1997, Re ports of Judgmen ts and Decisions 1997 ‑ V , a number of heirs had been punis hed f or a criminal offence committed by the deceased . The Court considered that the criminal sanction i mposed on the heirs f or tax fraud attributed to th e deceased was incompatible with the fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act (ibid., § 48). Swiss law explicit ly acknowledged this principle , and the Court affirmed that this rule wa s also requi red by the presumption of innocence enshrined in A rticle 6 § 2 of the Convention. I nherit ance of the guilt of the dead is not compatible with the standards of criminal justice in a society governed by the rule of law . Th at principle was reaffirmed in the case of Lagardère ( Lagardère v . France , n o. 18851/07, 12 April 2012, § 77), in which the Court r eiterated that the rule that criminal liability does not survive the person who has committed the criminal act is not only required by the presumption of innocence enshrined in Article 6 § 2 of the Convention, but also by the principle that inheritance of the guilt of the dead is i ncompatible with the standards of criminal justice in a society governed by the rule of law

66 . Given the connection between A rticles 6 § 2 and 7 § 1 of the Convention ( see Guzzardi v. Italy , 6 November 1980, § 100, Series A n o. 39), the Court considers that the rule r eiterated by it in the preceding paragraph is also valid from the angle of A rticle 7 of the Convention, which requires that no one can be held guilty of a criminal offence committed by an other . While it is true that anyone must be able at any time to ascertain what is permitted and what is prohibited via clear and detailed law s, a system which punished persons for an offence committed by another would be inconceivable .

67 . Nor c an one conceive of a system whereby a penalty may be imposed on a person who has been proved innocent o r , in any case , in respect of whom no criminal liability has been established by a finding of guilt . This is the third consequence of the principle of legality i n criminal law: the prohibi tion on imposing a penalty without a finding of liability , which also flows from A rticle 7 of the Convention.

68 . This principle was also affirmed by the Court in respect of A rticle 6 § 2 of the Convention. In the case of Geerings ( see Geerings v . the Netherlands , n o. 30810/03, § 47, 1 March 2007 ), the domestic courts had confis cated the applicant ’ s property because they had considered that he had benefited from the crim inal offence in question , even though he had n ever been found i n possession of property whose origin he had been unable to explain . The Court considered that the confiscation of the “ illega lly obtained advantage ” had been an inappropri ate measure, especially since the applicant had not been found guilty of the crime in question and it had never been proved that he had obtained an advantage from it . The Court held that this situation was necessarily in compatible with the presumption of innocence , and conclu ded that there had been à violation of A rticle 6 § 2 of the Convention.

70 . Of course the C ontract ing States remain free , in principle , to apply the criminal law to an act where it is not carried out in th e normal exercise of one of the right s protected by the Convention and therefore to define the constituent elements of such offence . In particular, and again in principle, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or negligence. Examples of such offences may be found in the laws of the Contracting States ( see Salabiaku v . France , 7 October 1988, Series A n o. 141, § 27). The sa me principle was affirmed in Janosevic v . Sweden (n o. 34619/97, 23 July 2002, § 68) , where the Court added that “ the lack of subjective elements does not necessarily deprive an offence of its criminal character; indeed, criminal offences based solely on objective elements may be found in the laws of the Contracting States ” . Article 7 of the Convention does not explicitly demand any “ psychologi cal ” , “ intellectual ” or “ moral ” link between the substantive element of the offence and the person deemed to have committed it. The Court in fact recently found that there had been no violation of Article 7 in a case where a fine had been imposed on an applicant party which had committed a proven offence without intention or negligence on its part ( see Valico S.r.l . v. Italy ( dec. ), no. 70074/01, E CHR 2006 ‑ III). The finding of liability was sufficient to justify implementing the sanction.

71 . The “ penalty ” and “p uni shment ” rationale and the “ guilty ” concept ( in the English version) and the correspond ing notion of “ personne cou pable ” ( in the French version) support an interpretation of A rticle 7 as requiring, in order to implement punishment , a finding of liability by the national courts enabling the offence to be attributed to and the penalty to be imposed on its perpetrator . Otherwise the puni shment would be devoid of purpose ( see Sud Fondi and Others , cited above , § 116). I t would be inco nsist ent on the one hand to require an accessible and foreseeable legal basis and on the other to permit puni shment where, as in the present case , the person in question has not been con victed .

73 . Therefore , there has been a violation of A rticle 7 of the Convention.

...

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

78 . The applicant complained of the unlawfulness and the disproportionate nature of the confiscation of his property . He a llege d a violation of A rticle 1 of Protocol N o. 1, the relevant part of which p rovides as follows :

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . N o one shall be deprived of his p ossessions except in the public interest and subject to the conditions provided for by l aw and by the general principles of international law .

The preceding provisions shall not, however, in any way impair the right of a State to enforce such l aw s as it deems necessary to control the used of property in accordance with the general interest ... ” .

79 . The Government contested that argument .

...

B. Merits

1. The parties ’ submissions

81 . The applicant mainly re iterated the arguments advanced under A rticle 7 , asking the Court to find a violation of this provision . He further observe d that the impugned penalty was disproportionate given that 90% of the land confis cated was un developed .

82 . Th e Government conteste d that argument . In their view the lawfulness and proportionality criteria had been satisfied since the d eterrent aim of the confiscation ensured its proportion ality even if it covered the whole surrounding land and not just the buildings erected . Th e Government invited the Court to have regard to these arguments for the purposes of just satisfaction should it find a violation of the Convention.

2. The Court ’ s assessment

a) Applicability of A rticle 1 of Protocol N o. 1

In Sud Fondi ( cited above, §§ 128-129), the Court held as follows:

“ 128. The Court note s that the present cas e differs from that of Agosi v . the Uni ted Kingdom ( judgment of 24 October 1986, Series A n o. 108), in which the confiscation was ord ered in respect of property which had been the object of the offence ( objectum sceleris ) following the defendants ’ conviction , because in the instant case the confiscation was ord ered following an acquitt al . Fo r the sa me reason , the present case also differs from C.M . v . France ([ d e c. ], n o. 28078/95, E CH R 2001 ‑ VII) and Air Canada v . the Uni ted Kingdom ( judg ment of 5 May 1995, Series A n o. 316 ‑ A), in which the confiscation was ord ered after the defendants ’ con vic tion in respect of property which was the instrumentum sceleris and was in the possession of third persons . In connection with the proceeds of a criminal activity ( productum sceleris ), the Court observes that it has considered a case in which the confiscation followed the applicant ’ s con vic tion ( see Phillips v. the United Kingdom , n o. 41087/98, §§ 9-18, ECHR 2001-VII) a nd cases in which confiscation had been ord ered independently of the existence of any criminal proceedings because the applic ant ’ s property had been assumed to be of unlawful origin ( see Riela and Others v. Italy ( d e c. ), n o. 52439/99, 4 September 2001; Arcuri and Others v . Italy ( d e c. ), n o. 52024/99, 5 July 2001 ; and Raimondo v . Italy , 22 February 1994, Series A n o. 281-A, § 29) o r to be u sed for unlawful activities ( see Butler v . the Uni ted Kingdom ( d e c. ) n o. 41661/98, 27 June 2002). In the first case cited above , the Court held that the confiscation constituted a penalty within the meaning of the second paragraph of A rticle 1 of Protocol No. 1 ( see Phillips, cited above , § 51, and , mutatis mutandis , Welch v . the Uni ted Kingdom , 9 February 1995, Series A n o. 307-A, § 35), whereas in the other cases it considered that t he aim had been to control the u se of property .

129. In the instant case the Court considers it unnecessary to determine whethe r the confiscation f all s into the first or the second category because the second paragraph of Article 1 of Protocol no. 1 applies in all cas es ( see Frizen v . Russia , n o. 58254/00, § 31, 24 March 2005). ”

As in Sud Fondi ( cited above , § 129), the Court considers it unnecessary to determine whether the confiscation f all s into the first or the second category because , in both cases, it is the second paragraph of Article 1 of Protocol no. 1 which applies .

b) Compliance with A rticle 1 of Protocol No. 1

85 . The Court has already noted that the offence in respect of which the confiscation was imposed on the applicant was not provided for by law within the meaning of Article 7 of the Convention and was arbitrary (see paragraphs 72-73 above). Accordingly, the Court find s that the interference with the applicant ’ s right to the peaceful enjoyment of his property was contrary to the requirement of lawfulness and was arbitrary , and that there was a violation of Article 1 of Protocol No. 1. This finding dispenses the Court establish ing whether or not a fair balance was struck .

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

86 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

87 . The applicant request ed the rest itu tion of the confiscated property plus a sum of 500, 000 euros (EUR) in compensation f or the deterioration of the buildings . H e also requested the pay ment of EUR 250 , 000 in respect of non-pecuniary damage .

88 . The Government objected to an award of any amount because they considered that the application raised no issues under the Convention. Should the Court find a violation, they requested that the fact that the applic ant had not been acquitted on the merits be taken into account for the purposes of just satisfaction.

89 . The Court consider s that under the circumstances of the ca se, the question of the appl ication of A rticle 41 i s not ready for decision in respect of pecuniary damage , given the complexity of the case and the possibility of the parties securing some form of compens ation a t the domestic level . This question should therefore be reserved and the subsequent procedure determined in the light of a possible agreement between the respondent S tat e and the applicant ( Ru le 75 § 1 of the Rules of Court ).

90 . Where non- pecuniary damage i s concerned, the Court , rul ing on an equitable basis , awards the applicant EUR 10, 000.

B. Costs and expenses

91 . The applicant did not claim reimbursement of the costs and expenses incurred hitherto in the proceedings. Under these circumstances the Court considers that the applicant should receive no award under this head.

C. Default interest

92 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASO NS, THE COURT

...

2 . Holds , by six votes to one, that there has been a violation of Article 7 of the Convention;

...

4 . Holds , unanimously, that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

5 . Holds , unanimously,

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sum of EUR 10,000 (ten thousand euros) plus any tax that may be chargeable to the applicant , in respect of non-pecuniary damage ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Holds , unanimously, that the question of Article 41 of the Convention is not ready for decision in respect of pecuniary damage; consequently, it

a) reserves this question;

b) invites the Government and the applicant to inform it, within six months, of any agreement which they may reach

c ) reserves the procedure and delegates to the President the power to fix the same if ne ed be ;

7. Dismisses , unanimously, the remainder of the applicant ’ s claim for just satisfaction.

Done in Frenc h, and notified in writing on 29 October 2013 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stanley Naismith DanutÄ— JočienÄ— Registrar President

In accordance with Article 45 § 2 of the Convention and Rul e 74 § 2 of the Rules of Court , the separate opinion of Judge Pinto de Albuquerque is annexed to this judgment .

D.J . S.H.N.

PARTLY CONCURRING AND PART LY DISSENT ING OPINION OF JU D GE PINTO DE ALBUQUERQUE

In the Varvara case the Court has once again to deal with a confiscation without any prior conviction in criminal proceedings. While the confiscation in Sud Fondi srl and Other s had been ordered in respect of applicant companies which were third parties vis-à-vis the defendants in criminal proceedings which had resulted in the acquittal of the latter on the ground that they could not be accused of any negligence or intention to commit a criminal offence and that they had committed an “unavoidable and excusable error” in interpreting “obscure and poorly worded” regional provisions [1] , the applicant in the present case had himself been accused in criminal proceedings which had led to a decision not to prosecute on the grounds that the offence was statute-barred . In the light of the un cert ainties in the Court ’ s case-law regarding the point of principle of the compatibility with the European Convention on Human Rights ( “ the Convention ” ) of systems of confiscation without criminal conviction and “ extended confiscation ” , the present cas e should have been an opportunity for the Court to clarify the conditions and modalities of this fundamental instrument of contempora ry criminal-law policy , by taking account of developments in international human rights law , international criminal law , compar ative criminal law and European Union law . The Chamber decided not to take this opportunity . Th at is precisely what I intend to do in this opinion, pending urgent clarification by the Grand Chamber . I shall try to highlight the reasons for my opposition to the finding of a violation of A rticle 7 of the Convention, even though I a gree with the finding of a violation of A rticle 1 of Protocol No. 1 and the decision no t to rule in respect of A rticle 6 § 2.

The i nternational obligation to confiscate the instruments and pro ceeds of crime

International law has long recognised the cardinal importance of confiscation as a mea n s of combat ing the most serious forms of crime , such as drug trafficking , terrorism , organised transnational crime and corruption.

Article 37 of the 1961 Single Convention on Narcotic Drugs as amended by the 1972 Protocol thereto , provides for the confiscation of any drugs, substances ( objectum sceleris ) and equipment used in or intended for the commission of any of the offences referred to in Article 36 ( instrumentum sceleris ) . A rticle 22 (3) of the Convention on P sychotrop ic Substances of 1971 also incorporates this provision . A rticle 5 of the 1988 Unite d Nations Convention against Illicit Traffic in Narcotic Drug s and Psychotropic Substances extends confiscation beyond narcotics, psychotrop ic substances and equipment or other instruments u sed in o r intended in any way for the commission of the offences referred to in A rticle 3 (1) of the Convention, to include pro ceeds derived from offences established in accordance with this paragraph , or property the value of which correspond s to such pro ceeds ( productum sceleris ). Incomes or other advantages derived from the pro ceeds of the crime, property into which the pro ceeds have been transformed or converted or property with which such proceeds have been intermingled may also be confiscated , unless this would prejudice the rights of bona fide third p a r tie s . The burden of pro ving the lawful origin of the presumed proceeds of the crime o r of other property liable to confiscation may be placed on the defendant [2] . These rules on confiscation have been incorporated into several other binding international provisions such as Articles 77 (2) (b), 93 (1) (k), and 109 (1) of the Rome Statute of 1998 of the International Criminal Court [3] , Article 8 of the 1999 International Convention for the Suppression of the Financing of Terrorism [4] , Article 12 of the UN Convention of 2000 against Transnational Organised Crime [5] , Article 31 of the UN Convention of 2003 against Corruption [6] , and Article 16 of the 2003 Convention of the African Union on Preventing and Combating Corruption [7] .

The international rule i n matters of confiscation is firmly anchored in Europe . In the Council of Europe framework , A rticles 2 and 13 of the Council ’ s 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime already provided for the confiscation of the instruments and pro ceeds of crime, confiscation of the equivalent value and confiscation without criminal con vic tion [8] . A rticles 5 and 23 of the 2005 Convention on Laundering, Search, Seizure and C onfiscation of the P ro ceed s from C rime and the F inanc ing of Terrorism further clarified the previous provisions [9] .

The current legal framework of the European Union in respect of confiscation of the instruments and pro ceeds of crime comprises several texts : Framework Decision 2001/500/J H A, which requires Member S tat e s not to make or uphold reservations in respect of the provisions of the Council of Europe Convention on confiscation where the offence is punish able by deprivation of liberty or a detention order of a maxim um period of more than one year , to authorise value confiscation where the direct proceeds of the crime cannot be apprehended and to ensure that requests from other Member States are given the same degree of priority as domestic procedures [10] ; Framework Decision 2003/577/J H A, which provides for mutual recognition of freezing or de r s ; Framework Decision 2005/212/J H A, which provides for ordinary confiscation , including value confiscation , in respect of all offences subject to imprisonment of a maximum period of one year, and confiscation of some or all assets held by a person who has been found guilty of specified serious offences , where they have been “ committed with in the framework of a criminal organisation ” , without establishing a link between the assets deemed to be of criminal origin and a specific offence ; Framework Decision 2006/783/J H A, which provides for mutual recognition of confiscation order s ; and Council Decision 2007/845/J H A c on cerning cooperation between the Asset Recovery Offices of Member States [11] .

Lastly , a sound opinio j uris i n favour of international rules o n the confiscation of the instruments and pro ceeds of crime has emerged with the adoption by several international organisations of recommendations and best- practice guides , such as Recommendation n o. 3 of the OECD ’ s i nternational Financial Action Task Force ( F A T F) as revised i n February 2012 [12] . The F A T F has suggested that the S tat e s adopt similar measures to those laid down in the Vienn a and Palermo Conventions , including legislation , to enable their competent authorities to confis cate laundered assets , the pro ceeds of money laundering or predicate offenc es, a nd the instruments u sed in or intended for the comm ission of such offences , o r assets of corr e sponding value , without prejudice to the right of bona fide third p a r tie s . The FATF considers that S tat e s should envisage adopt ing measures to allow confiscation of such pro ceed s or instruments without a prior con vic tion o r to require the presumed perpetrator of the offence to demonstrate the lawful origin of the assets alleged to be liable to confiscation, in so far as such a requirement complies with the principles of their domestic legislation . The third of the FATF ’ s nine special recommendations on the financing of terrorism reinforces this proposal where the freezing and confiscation of terrorists ’ asset s are concerned.

It must be concluded from the established and virtually universal practice of States and the above-mentioned opinio j uris that there is currently a six ‑ pronged international customary norm in matters of confiscation of the instruments and proceeds of crime: confiscation of instruments used in or intended for the commission of the crime, confiscation of the proceeds of the crime, confiscation of their equivalent value, confiscation of proceeds which have been transformed or intermingl ed with other assets, confiscation of incomes and other indirect benefits [13] and protection of bona fide third parties [14] . Mandatory confis cation of the instruments and pro ceeds of crime, in accordance with the extensive procedures described , covers the large st possible number of criminal offences , and at the very least those cr eated in accordance with the aforementioned conventions . This universal rule in respect of confiscation of the instruments and pro ceeds of crime represents a minimum threshold , and the S tat e s may elect to go further in the ir domestic legislation .

The c onfiscation of the instruments and pro ceeds of crime in the Court ’ s case-law

The Court has hitherto avoided ruling on the point of principle of the compatibility with the Convention of confiscation without criminal conviction and e nlarged confiscation. The questions arising have often been decided on the bas is of secondary aspects of the legal regulations g o ver n ing the measure implemented by the respondent S tat e , or even on the basis of highly specific facts pertaining to each individual case , such as the total assets lost by the applic ant. This cas uistic approach has produced con flicting and inco nsistent case-law .

According to the Court , the safeguards set out in A rticles 6 §§ 2-3 and 7 of the Convention and A rticle 4 of Protocol N o. 7 do not apply to the measure laid down in section 2 ter of the Italian Law n o. 575/1965 ( now A rticle 24 of the Anti-M afia Code introduce d under Legislative Decree No. 159 of 6 September 2011 ) , which concerns the confiscation of property belonging direct ly or indirect ly to any person suspected of belonging to a mafia-type association, where the value of such property appears disproportion ate to the person ’ s income or economic activities or where it can be reasonably contended, on the bas is of available evidence , that such property constitutes the pro ceeds of unlawful activities , if no satisfa ctory explanation has been provided in de fence of its lawful origin [15] . The same applies to confiscation in civil proceedings in rem [16] . In the sa me way the Court considers that confiscation measures can be appli ed to third persons following the defendant ’ s con vic tion in criminal proceedings or even after the latter ’ s death . The Court does, however, consider the compatibility of this type of measure with the civil -law aspect of A rticle 6 and with A rticle 1 of Protocol N o. 1 [17] . Lastly , it also a ccep ts the implementation of confiscation measures vis-à- vis defendants who have been acquitted o r discharged on grounds other than acquitt al at the close of criminal proceedings [18] , a s well as during the phase following the con vic tion which is an integral part of the sentencing process [19] .

On the other hand , the Court does consider that confiscation as provided for in section 19 of Law n o. 47 of 1985 is surrounded by the safeguards of A rticle 7 of the Convention [20] . Yet, a s we shall see , the application of this measure has to comply with much stricter conditions than confiscation under the anti-mafia regulations . In the context of an equivalent value confiscation i n Greece , the Court did not grasp the ful l impact of the terms u sed , which drew what the Court considered to be an artificial distinction between a finding of guilt and a finding of “ objective ” perpetration of an offence as the bas is for a confiscation order , and conclu ded that there had been a violation of A rticle 6 § 2 of the Convention [21] . In another case it even reached the conclusion that the confiscation had been “ a measure ... inappropriate to assets which [ were ] not known to have been in the possession of the person affected, the more so if the measure concerned relate [ d ] to a criminal act of which the person affected ha [ d ] not actually been found guilty”, since Article 6 § 2 prohibits such a measure [22] .

Accordingly , beyond the contradictions in the various cases concerning measures which are substantially analogous , the Court affords weaker safeguards for more serious, indeed more intrusive, confiscation measures , and stronger guarantees for less serious confiscation measures . Some “ civil -law ” measures and some “ crime prevention ” measures which disguise what is in effect a ction to annihilate the suspect ’ s economic capacities , sometimes on threat of imprisonment should they fail to pay the sum due , are subject to weak, vague supervision , or indeed escape the Court ’ s control , while other intrinsically administrative measures are sometimes treated as equivalent to penalties and made s ubject to the strict er s afeguards of Articles 6 and 7 of the Convention [23] .

The nature of confiscation on grounds of unlawful land development

In a judgmen t of 12 November 1990 the Italian Court of C assation ruled that the confiscation provided for in section 19 of Law n o. 47 of 1985 was a mandatory administrative sanction, i rrespective of any criminal con vic tion and the m ens rea of the offence [24] . It considered that the measure could therefore be ordered in respect of third persons because the confiscation was based on a situation – buildings and/or land develop ment – which was materially unlawful , i rrespective of the m ens rea . The c ourt held that confiscation could therefore be ord ered in cas es where the defendant had been acquitte d on the grounds of absence of m ens re a ( perché il fatto non costituisce reato ), but could not be order ed where the defendant ha d been acquitte d on the grounds that the actus reus of the offence had not been made out ( “ perché il fatto non sussiste ” ).

The Court of C assation introdu ced two significa n t exceptions to this principle , the first being that of bon a f i de third persons uninvolved in the commission of the offence [25] , and the second that of the offence of unlawful l and development becom ing time-barred before the commencement of criminal proceedings [26] . In the Court of Cassation ’ s view , confiscation was excluded in these two cases .

In Sud Fondi the Cour t decided otherwise . It held that the measure provided for in section 19 of Law n o. 47 of 1985 was geared not to providing pecuniary compensation for damage but primarily to puni shing the defendant in order to prevent a r ecurrence of infringements of the conditions laid down in l aw . This conclusion was reinforced , in its view, by the fact that 85% of the land affected by the confiscation order was undeveloped , and therefore there had been no real damage to the environment . The Court noted the severity of the actual penalty, which affected all the land covered by the development plan , that is, a total area of 50, 000 m 2 . It also stressed that the Building Code of 2001 class ified confiscation f or unlawful development a s a criminal penalty .

It is highly questionable to classify confiscation as a “ penalty ” under the criteria both of traditional crimi nal theory and those – deriving from the Engel case-law – on the legal class ification of the offence under C onvention law . The national legislation is unclear because sections 19 and 20 of Law n o. 47 of 1985 do not mention confiscation as a crimi nal sanction , unlike Article 44 of the Building C ode (DPR n o. 380 of 2011), which reworded the said sections . In so far as confiscation is intended to deter real-estate speculation incompatible with spatial planning and environmental protection regulations , its preventive nature is plain to see . The same cannot be said of its alleged “ penal ” and “ punitive ” nature . It is not enough, in order to justify this “punitive” aim , s imply to consider the percentage of undeveloped plots of land confiscated , even less so the total area of land confiscated . The actual severity of a crimi nal sanction can only confirm its crimi nal nature; it cannot replace it . The “ punitive ” nature of the confiscation cannot depend on its actual severity . Any conclusion regarding the nature of the confiscation must derive from the legal regime governing it, as established by l aw and interpreted and appli ed by case-law . In order to obviate the problem of “ mislabelling ” , which is recurrent in this field , we should remember the wise words of Celsius : scire leges non hoc est : verba earum tenere , sed vim ac potestatem ( knowing the law means comprehending the spirit and force rather than the letter thereof ) .

Indeed t he “ punitive ” aim is contradicted by the fact that the property confiscated in accordance with section 19 of Law n o. 47 of 1985 is acquired no t by the S tat e , as in the case of the crimi nal confiscation laid down in section 240 of the Crimi nal Code , but by the local authoriti es , and the confiscation can be revoked if the se authorities regularis e the land development ex post facto [27] . I n modern crimi nal law , a penalty cannot be revoked under a retroactive administrati ve decisi on . T he separation of powers principle would proscribe this . If the administrative a uthorities can valid at e the land develop ment subsequent to a final judicia l confiscation decision and revoke the latter measure , one must conclude that the criminal court mak ing that decision does not have the last say regarding the lawfulness of the d evelop ment plan . C onfiscation as laid down in section 19 of Law n o. 47 of 1985 i s , precisely , a provis ional and interim measure designed to guard against the danger of real-estate operations incompatible with legal and administrative provision s pending a final decision by the relevant administrati ve authority on the lawfulness of the develop ment in question . In other words , the criminal court provis ionally replaces the administrative a uthorities ( in funzione di supplenza ) in the i r role as guarantor of the public interest in the spatial planning and environmental protection field . This conclusion is confirmed by other important aspects of the statutory rules : criminal proceedings have no suspensive effect on administrative proceedings [28] , and the administrative a uthorities can even prevent the issuing of a confiscation order by the criminal court before it becomes res judicata if it authorises the development operation ex post facto o r modifie s the local development plan in such a way that the developed land is classified as building land [29] . Furthermore, i t can valid ate buildings constructed without permission if they comply with current town planning regulations at the time of the decision on the application for validation, even if they were incompatible with the regulations i n force at the time of construction of the unlawful development [30] . All these aspects of the legal regime inevitably lead to the conclusion that confiscation on grounds of unlawful land development is administrative in nature and does not depend on verification of the existence at the material time of the objective ( actus reus ) and subjective ( mens rea ) conditions for applying “ penalties ” , even where the confiscation is imposed by a criminal court following criminal proceedings . The constitutional concept of the “ social function of ownership ” ( funzione social e della proprietà ) is not unconnected to the way in which administrative confiscation is regulated [31] .

From the st an dpoint of the Convention, therefore, confiscation f or unlawful land develop ment can only be considered as an “ in terference ” with property rights which is “ necessary to control the use of property in accordance with the general interest ” , the legitimacy of which must be assessed on the basis of the l awfulness and proportionality criteria set out in A rticle 1 of Protocol N o. 1, and certain ly not as a “ penalty ” subject to the conditions set out in A rticle 7 of the Convention [32] .

The l a wfulness of confiscation on grounds of unlawful l and development

The legal basis for the confiscation ord ered by the Italian court s – section 19 of Law n o. 47 of 1985 – is not contested [33] . The subject of the dispute between the parties is rather the procedure for implementing the measure . On the one hand the Government contend that the actus reus and mens rea of the offence of unlawful spatial planning were made out because of the existence of landscape constraints , as shown by the Puglia Administrative Court decision of 10 March 1993, the lack of a legitimate development plan, and the fact that the applic ant had apparently been fully aware of both those factors . On the other hand the applic ant s ubmits that the administrative court decision had rend ered the ministerial decree of 1 August 1985 in opera tive and had th us removed the legal bas is for the confiscation decision given by the criminal court .

I t should be re call ed that the charge against the applicant was that the new variant of the development plan approved in 1994, the original plan having been approved i n 1984, had not been a mere modification of the 1984 plan but a completely new project which was subject to the obligation of applying for and obtaining a favourable opinion from the regional committee responsible for town and spatial planning . I n the absence of a fresh land develop ment plan and the said favourable opinion , the court of first instance ruled the develop ment plan unlawful on grounds of breach of the ministerial decree of 1 August 1985. This ch arge was upheld neither by the Bari Court of Appeal in its judgment of 22 January 2001 [34] n or by the Court of C assation in its judgment of 10 December 2004 [35] , but it was upheld by the Bari Court of Appeal in its judgment of 5 May 2003 and by the Court of C assation in its judgment of 17 May 2002. Lastly , in its judgment of 23 March 2006, the Bari Court of Appeal held that the variant constituted a fresh land develop ment plan and was therefore unlawful . I n conclusion, it ord ered the confiscation of the buildings and the developed and undeveloped land . The Court of C assation upheld this approach in its judgment of 11 June 2008. In themselves, the far-reaching divergences among the various domestic judicial authorities highlight the dubious character of the interpretation finally adopted as regards the nature of the land development agreement concluded in August 1994 and of the resultant building permits, and therefore of the criminal offence with which the applicant was charged. Moreover , the municipality of Cassano delle Murge declared the buildings constructed by the applic ant before 30 September 2004 in conform ity with landscape legislation , and the Soprintendenza per i Beni Ambientali even concluded , a fter a site inspection , that the “ building opera tion had not caused any specific damage to the integrity of the wooded area ” [36] . At any event, even giving the respondent State the benefit of the doubt regarding the “ natural character ” of the Mercadante forest, the “ essential ” nature of the change ( “ modifica essenziale ” ) caused by the modification of the original plan and therefore the unlawfulness of the development agreement concluded in August 1994, and the lawfulness of the ensuing confiscation, consideration of the proportionality of the confiscation measure leads to a n unfavourable finding in the respondent State ’ s regard .

The p roportionality of the confiscation f or unlawful development

Any measure in terfering with the right of property mus t b e proportion ate . This conclusion applies a fort iori to property holde rs who cannot be blamed for any unlawful co nduct , whether in crimi nal , administrative o r civil -law terms . The scope of confiscation must therefore be confined to what is strict ly necessary for attaining specific preventive aims and the overall “ public interest ” purpose of any measure in ter f e ring w i th the right of property in the context of the instant cas e.

According to the interpretation adopted by the Italian court s, confiscation f or unlawful develop ment is automati cally implemented in respect of buildings and also plots of land ( all plots of land, not only developed ones ) [37] . The confiscation measure appli ed in the present case is manifest ly disproportion at e, for several reasons [38] . Firstly , the undeveloped plots of land accounted for over 90% of those confiscated . Secondly , the confiscation was not confined to the change s effected under the 1994 agreement, but was extended to the develop ment which had already been authorised in 1984. T hirdly , even if one accept ed the hypothesis that the l and development was unlawful , the defect would concern non- compliance with a landscape constraint necessitating a favourable opinion from the relevant regional committee , that is to say a “ relative procedural defect ” ( vincolo d ’ inedificabilità relativo ), which is potential ly surmountable , no t an unsurmountable substantive defect , whi ch would be the case of an absolute prohibition on building . Fourthly , given that the of f en c e had become time-barred at the end of 2001, as contended by the applic ant, o r at the end of 2002, as the Bari Court of Appeal held , the maintenance from February 1997 until the end of criminal proceedings in June 2008 of the interim attachment order over the land and buildings constitutes an excessive interference . Fifthly , i t does not seem reasonable that the municipality responsible for issuing unlawful building permits should benefit from its own wrongdoing .

The rigid interpretation of confiscation on grounds of unlawful land develop ment a s “ an expropriation measure which is radical in both its form and its consequences ” ( un provvedimento ablativo radicale , nelle forme e nelle conseguenze ), whereby “ without any discretion , ownership of the developed land and property is transferred from individuals to the municipality ” ( senza discrezionalità alcuna , la proprietà dei terreni e dei beni lottizzati venga trasferita dai privati al patrimonio del comune ) [39] , is plainly in breach of the principle of proportionality . Th at principle requires a different interpretation of the “form” and “ consequences ” of confiscation which the domestic courts can and must follow in the light of A rticles 42 and 44 of the Italian Constitution and A rticle 1 of Protocol No. 1. If the aim of the measure consist ing in confis cating developed land and unlawful buildings is to put a stop to criminal activities and the pro ceeds of such crime and to prevent any worsening of the damage to spatial planning and the environment until the administrative authorities reach a final decision on the lawfulness of the development plan , the corresponding judicial action must be measured and neither “absolute” n or “automatic” . Accordingly, the Italian court must not only ascertain whether there is, in concreto , an immediate serious risk to spatial planning and environmental protect ion considerations, but also tailor the State ’ s reaction to the existing real-estate threat, thus ensuring that the confiscation measure is proportionate to the specific circumstances of the case [40] .

Conclusion

According to UN estimat es , in 2009 the total of all pro ceeds of crime at world level stood at almost 2 , 100 b illi on US dollars, or 3 . 6 % of global GNP [41] . In response to this global problem , an international customary norm impos ing confiscation as a criminal policy measure has emerged in respect of both the instruments and the pro ceeds of crime, except in cas es of bon a fi de third persons . Under the nomen j uris of confiscation, the S tat e s have introduced ante delictum crimi nal prevention measures , crimi nal sanctions ( accessory or even principal criminal penalties ), security measures in the broad sense , administrative measures adopted within or outside criminal proceedings , and civil measures in rem . Confronted with this enormous range of responses available to the S tat e , the Court has not yet developed any consistent case-law based on principled reasoning .

In c onnection with confiscation on grounds of unlawful land develop ment as provided in section 19 of Law n o. 47 of 1985, while its implement ation in the absence of a criminal con vic tion, irrespective of the cause of the discontinuance of criminal proceedings , is compatible with the Convention, its scope is at variance with the latter . A measure automati cally and absolutely ordering the confiscation of buildings and unlawfully developed land is in breach of the principle of proportionality . This applies to the confiscation implemented in respect of the applic ant. I therefore conclu de that there has been a violation of A rticle 1 of Protocol No. 1, and also that there has been no violation of A rticle 7 of the Convention.

[1] . Sud Fondi srl and Others v. Italy , no. 75909/01, 20 January 2009, and the two partial admissibility decisions given on 23 September 2004 and 30 August 2007.

[2] . The Convention has had 188 States Parties, including the respondent State, since 31 December 1991. Article 1 of the Convention defines confiscation as “ the permanent deprivation of property by order of a cou rt or other competent authority” . The other UN texts incorporate the same definition.

[3] . The Rome Statute has had 122 States Parties, including the respondent State, since 26 July 1999. Moreover, Article 110 (4) (b) provides for the possibility of reduction of sentence in cases where a defendant offers voluntary assistance in enabling the enforcement of the judgments and orders of the Court in other cases, and in particular providing assistance in locating assets subject to forfeiture which may be used for the benefit of victims.

[4] . This Convention has had 185 States Parties, including the respondent State, since 27 March 2003.

[5] . This Convention has had 178 States Parties, including the respondent State, since 2 August 2006.

[6] . This Convention has had 168 States Parties, including the respondent State, since 5 December 2009. A major innovation was introduced by Article 54 (1) (c) of the Convention against Corruption, requiring the States Parties, in the framework of international cooperation in confiscation, to allow confiscation of property acquired by means of a criminal offence without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases. An explanatory note states that in this context the term “offender” could, in appropriate cases, include persons holding ownership rights with a view to disguising the identities of the true owners of the property in question (A/58/422/Add.1, par. 59). Even if this provision is optional, it constitutes a universal recognition of confiscation without conviction. Regarding the domestic practice in individual States, see the legislation of 175 countries on asset recovery, consultable on the UNODC website .

[7] . This Convention has 31 States Parties. Article 1 defines confiscation as “any penalty or measure resulting in a final deprivation of property, proceeds or instrumentalities ordered by a court of law following proceedings in relation to a criminal offence or offences connected with or related to corruption”.

[8] . ETS no. 141 and its explanatory report. This Convention has had 48 States Parties, including the respondent State, since 1 May 2004. Article 1 defines confiscation as “a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property”. This definition now forms the cornerstone of the Council of Europe and European Union texts on this subject. This 1990 Convention excluded confiscation unrelated to a criminal offence, such as administrative confiscation, but included any decision to confiscate which had not been taken by a court holding criminal jurisdiction following criminal proceedings, provided that such proceedings were conducted by judicial authorities and were criminal in nature, that is to say they concerned the instruments or proceeds of crime. Such proceedings could embrace, for instance, so-called in rem proceedings and were referred to in the Convention as “proceedings for the purposes of confiscation”.

[9] . CETS no. 198 and its explanatory report. This Convention has 23 States Parties. The respondent State has signed but not ratified it. The new paragraph 5 of Article 23 of the Convention stipulates, in the body of the text, that cooperation on the execution of measures leading to confiscation, which are not criminal sanctions, must be ensured to the widest extent possible. As the explanatory report to this 2005 Convention acknowledges, it was clear that already under the 1990 Convention, the Parties had enjoyed leeway in their approach to confiscation under their domestic legal system, one possible approach being civil proceedings in rem .

[10] . This Framework Decision partly abrogates Common Action 98/699/JAI on identifying, tracing, freezing, seizing and confiscating the instrumentalities and proceeds of crime.

[11] . The Proposal for a European Parliament and Council Directive on freezing and confiscating the proceeds of crime in the European Union, adopted in 2012, provided for confiscation without a criminal conviction where the defendant cannot be prosecuted because of death, illness or abscondance; enlarged confiscation in so far as a court has found, on the basis of factual evidence, that a person found guilty of an offence is in possession of asset s which are distinctly more likely to have originated in other similar criminal activities than in a different type of activity, and confiscation of the assets of third parties where the third-party purchaser, having paid under the market value, should have suspected that the property was of criminal origin (COM(2012) 85 final). In its report on the Proposal for a Directive drawn up in May 2013, the Committee on Civil Liberties, Justice and Home Affairs pointed out that this Directive only covered forms of non-conviction-based confiscation which were considered as being of a criminal nature ( COM( 2012)0085 – C7-0075/2012 – 2012/0036(COD); and the opinion issued on this subject in December 2012 by the EU Fundamental Rights Agency). The legislative procedure is still at this same stage. There is evident disagreement between the Council of Europe’s approach, which opens the door to measures leading to non-conviction-based confiscation which are not “criminal sanctions”, even if the se are imposed following criminal proceedings, and the approach adopted by the European Parliament Committee on Civil Liberties, which makes non-conviction-based confiscation subject to the C onvention safeguards attached to any “penalty” and , explicitly , to the provisions of Article 6 of the Convention.

[12] . See also Security Council Resolutions 1267 (1999), 1373 (2001) and 1377 (2001) on the financing of terrorism and the Security Council Technical Guide for Implementation of Resolution 1373 (2001), as well as the following documents: G8 Best Practice Principles on Tracing, Freezing and Confiscation of Assets , 2003; Commonwealth Model Legislative Provisions on Civil Recovery of Assets including Terrorist Property , 2005 ; Model Bilateral Agreement on the Sharing of Confiscated Proceeds of Crime or Property covered by the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 , 2005; Biens mal acquis : Un guide des bonnes pratiques en matière de confiscation d'actifs sans condemnation (CSC) (“Stolen asset recovery: a good practices guide for non-conviction based asset forfeiture”), 2009, and Barriers to Asset Recovery An Analysis of the Key Barriers and Recommendations for Action , 2011, published by the International Bank for Reconstruction and Development and the World Bank; and also the work of the Open-ended Intergovernmental Working Group on Asset Recovery set up by the Conference of States Parties to the United Nations Convention against Corruption.

[13] . As an interpretative note on equivalent wordings in the Convention against Organised Crime points out, the words “other benefits” must encompass material benefits as well as legal rights and interests of an enforceable nature which are subject to confiscation (A/55/383/Add.1, par. 23).

[14] . Even if th ey share an identical content, the treaty-based rule s do not replace the customary norm s : the two coexist in parallel, because the treaty-based rule applies only to States Parties whilst the customary norm applies to all States. Furthermore, international custom can govern not only inter-State relations but also relations between States and individuals, because it is directly applicable under the domestic legal system and, under certain circumstances, can be relied upon by individuals. For example, international custom may include not only substantive penal rules such as the prohibition of a retroactive penal law but also procedural penal rules such as the “natural or lawful judge” rule in penal law (see my separate opinion in Maktouf and Damyanovic v. Bosnia-Herzegovina (GC) . The present opinion cannot go any further into this issue.

[15] . Raimondo v. Italy , 22 February 1994, Series A no. 281-A, p. 17, §§ 30 and 43; Prisco v. Italy ( dec . ), no. 38662/97, 15 June 1999; Arcuri and Others v. Italy ( dec. ), no. 52024/99, 5 July 2001; and Riela and Others v. Italy ( dec. ), no. 52439/99, 4 September 2001. This preventive penal measure, which had traditionally been treated as an administrative measure equivalent in content and effects to a security measure (Court of Cassation, combined chambers, judgment of 3 July 1996, no. 18), has recently been seen as “objectively punitive” ( oggetivamente sanzionatoria ) and therefore subject to the rule that penalties shall not be applied retrospectively (Court of Cassation, judgment of 13 November 2012, no. 14044/13). The measure is  applicable even when the supposed danger posed by the suspect can no longer be regarded as real or in the event of his or her death, and can potentially cover the entirety of the suspect’s assets available de jure or de facto (Constitutional Court, judgment of 9 February 2012, no. 21).

[16] . See AGOSI v. the United Kingdom , 24 October 1986, Series A no. 108, §§ 34, 56-62 (re. sections 44 (b) and 44 (f) of the 1952 Act); Air Canada v. United Kingdom , 13 July 1995, Series A no. 316, § 52 (re. section 141 of the 1979 Act, which provided no protection for innocent third parties); Butler v. the United Kingdom (dec.), no. 41661/98, 27 June 2002; Webb v. the United Kingdom (dec.), no. 56054/00, 10 February 2004 ; and Saccoccia v. Austria , no. 69917/01, §§ 87-91, 18 December 2008. In the last two UK cases the Court explicitly found that the confiscation order had been a “ preventive measure ” which could not be treated as equivalent to a criminal sanction because it had been geared to taking out of circulation sums of money which were presumed to be linked to international trafficking in narcotic drugs.

[17] . See Yildirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV, and C.M. v. France (dec.), no. 28078/95, 26 June 2001. In Silickienė v. Lithuania , no. 20496/02, § 50, 10 April 2012, however, the Court established the opposite principle: it held that although “as a general principle, persons whose property is confiscated should be formally granted the status of parties to the proceedings in which the confiscation is ordered”, it accepted, “in the particular circumstances of the case”, the confiscation of property belong ing to third persons following the defendant’s death during criminal proceedings.

[18] . See Van Offeren v. the Netherlands ( dec. ), no. 19581/04, 5 July 2005, where the applicant had had to pay the € 162,026.31 confiscated, on threat of an eighteen-month prison sentence if he failed to pay the confiscated sum; Waldemar Nowakowski v. Poland , no. 55167/11, §§ 51-58, 24 June 2012; and, in a similar case in which a demolition order had been issued in respect of a suspect acquitted following criminal proceedings, Saliba v. Malta ( dec. ), no. 4251/02, 23 November 2004.

[19] . See Phillips v. the United Kingdom , no. 41087/98, § 34, ECHR 2001 ‑ VII (relating to the Drug Trafficking Act 1994), where the applicant had had to pay the £ 91,400 confiscated, on threat of an additional two-year prison sentence; Grayson and Barnham v. the United Kingdom , nos. 19955/05 and 15085/06, § 49, 23 September 2008 (relating to the same Act), in which the first applicant had had to pay the £ 1,236,748 confiscated, on threat of an additional eight-year prison sentence, and the second applicant £ 1,460,615, on threat of a prison sentence of five years and three months; and Woolley v. the United Kingdom , no. 28019/10, §§ 80-84, 10 April 2012 (relating to section 75 of the Criminal Justice Act 1988 and section 139 of the Criminal Courts (Sentencing) Act 2000, in which the applicant had had to serve four years’ imprisonment in addition to his sentence because he had failed to pay the £ 497,784.02 confiscated.

[20] . See Sud Fondi srl and Others v. Italy (dec.), no. 75909/01, 30 August 2007, and also Welch v. the United Kingdom , no. 17440/90, § 33, 9 February 1995 (relating to the Drug Trafficking Act 1986).

[21] . See Paraponiaris v. Greece , no. 42132/06, § 33, 25 September 2008.

[22] . See Geerings v. Netherlands , no. 30810/03, § 47, 1 March 2007 (re Article 36e of the Crimin al Code), in which the applicant had had to pay 147 , 493 Netherlands guilders on threat of a 490-day prison sentence.

[23] . The repercussions of the Court’s case-law can be considerable in cases of enlarged confiscation as a measure to attach property in general (e.g. Article 43a of the German Criminal Code and Article 229-49 of the French Penal Code), property having an unlawful purpose (e.g. § 72 of the Swiss Criminal Code and § 20b of the Austrian Criminal Code) and property suspected of having an unlawful origin (e.g. § 73d of the German Criminal Code, section 20b (2) of the Austrian Code and section 7 of the Portuguese Law no. 5/2002).

[24] . The Constitutional Court upheld this line of reasoning in judgment no. 187 of 1998.

[25] . Court of Cassation, judgment no. 427 of 24 October 2008, judgment no. 36844 of 9 July 2009, and judgment no. 397153 of 6 October 2010.

[26] . Court of Cassation, judgment no. 5857 of 16 February 2011.

[27] . Court of Cassation, judgment no. 12999 of 14 December 2000, and judgment no. 1966 of 21 January 2002. However, the Court of Cassation also held, in its judgment no. 21125 of 29 May 2007, that the administrative validation ( sanatoria amministrativa ) of the unlawful land development after the confiscation decision had become res judicata did not mean that the confiscated property had to be restored to the previous owners. As we shall see below, this aspect of the statutory rules raises proportionality issues. 

[28] . An administrative order for the demolition of unlawful buildings may be enforced during criminal proceedings ( Consiglio di Stato , judgment no. 1260 of 12 March 2012, and Court of Cassation, judgment no. 9186 of 14 January 2009).

[29] . Court of Cassation, judgments nos. 39078 of 8 October 2009 and 21125 of 29 May 2007.

[30] . Consiglio di Stato , judgments nos. 6498 of 21 October 2003 and 2835 of 7 May 2009.

[31] . Court of Cassation, judgments nos. 10037 of 27 January 2005 and 37472 of 2 October 2008.

[32] . The Court’s reasoning and position on confiscation must take into account the submissions to some domestic courts on the constitutional limits of confiscation, as in the debate in the USA on the application to specific forms of confiscation of the 8th Amendment on cruel punishment, or the discussion in Germany on the constitutionality of general confiscation (see, for example, the German Constitutional Court judgments of 20 March 2002 and 14 January 2004). 

[33] . On the unlawfulness of confiscation measures, see Frizen v. Russia , no. 58254/00, § 36, 24 March 2005; Baklanov v. Russia , no. 68443/01, § 46, 9 June 2005; and Adzhigovich v. Russia , no.  23202/05, § 34, 8 October 2009.

[34] . The Court of Appeal held that the Mercadante forest was not a “natural forest” ( bosco naturale ) but an “artificial forest” ( bosco artificiale ), as the prosecution expert confirmed at the 23 March 1998 hearing; that section 1 of Law n o. 431/85 had been repealed by section 146 of Legislative Decree No. 490/99, apart from the landscape constraint on the plots of land in question; that the variant of the original developm ent plan had not constituted an “essential change” ( modifica essenziale ) to the development plan approved in 1984; and lastly that the buildings erected by the applicant did not constitute a “substantial change to the environmental parameters of the area” ( modifica sostanziale dei parametri paesistici dell’ area ).

[35] . The Court of Cassation criticised the 5 May 2003 judgment of the Bari Court of Appeal for failing to assess independently whether the variant had “concealed a new, separate development plan” ( mascherava un nuovo ed autonomo piano di lottizzazione ).

[36] . Judgment of the Bari Court of Appeal of 22 January 2001, page 11: “ l’intervento edificatorio posto in essere non abbia comportato specifico pregiudizio all’integrità complessiva dell’area buscata ”.

[37] . Court of Cassation , judgment no. 17424 of 9 May 2005 : “ la confisca deve essere estesa a tutta l’area interessata dall’intervento lottizzatorio, compresi i lotti non ancora edificati o anche non ancora alienati al momento dell’accertamento del reato, atteso che anche tali parti hanno perso la loro originaria vocazione e destinazione rientrando nel generale progetto lottizzatorio .”

[38] . On the disproportionality of confiscation measures, see Ismayilov v. Russia , no. 30352/03, § 38, 6 November 2008, and in particular Grifhorst v. France , no. 28336/02, § 100, 26 February 2009 (“automatic” confiscation of the “entirety” of the sum transported).

[39] . Court of Cassation, judgment no. 21125 of 29 May 2007; see also Constitutional Court judgment no. 239 of 24 June 2009.

[40] . For example, the court must draw a distinction between an “environmental monster” ( ecomonstro ) created by a greedy, ill-intentioned developer playing hide-and-seek with the administrative authorities and a building constructed with the implicit or explicit consent of the competent administrative authorities and voluntarily discontinued by the developer. A different set of measures would be required in each of these two cases.

[41] . United Nations Office on Drugs and Crime, “ Estimating illicit financial flows resulting from drug trafficking and other transnational organised crime ”, October 2011.