Lexploria

Information Note on the Court’s case-law 204

February 2017

De Tommaso v. Italy [GC] - 43395/09

Judgment 23.2.2017 [GC]

Article 2 of Protocol No. 4

Article 2 para. 1 of Protocol No. 4

Freedom of movement

Lack of clarity of Italian legislation regarding imposition of “special police supervision” orders on persons considered a danger to society: violation

Article 5

Article 5-1

Deprivation of liberty

Imposition of preventive measures entailing restrictions on freedom of movement on individual considered to be a danger to society: Article 5 not applicable

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Public hearing

Imposition of preventive measures without public hearing: Article 6 applicable; violation

Facts – Italian law provides for the possibility of imposing “preventive” measures – involving restrictions of various freedoms – on “persons presenting a danger for security and public morality” (Act no. 1423 of 27 December 1956).

The applicant had several previous convictions for offences including drug trafficking and unlawful possession of weapons. In 2007 the public prosecutor recommended, on the basis of continuing suspicions as to the applicant’s behaviour and source of income , that he be placed under “special police supervision” in accordance with the above-mentioned Act. In 2008 a district court imposed the measure sought, entailing the following set of obligations for a period of two years: to report once a week to the polic e authority responsible for the supervision; to look for work within a month; not to change the place of residence; to lead an honest and law-abiding life and not give cause for suspicion; not to associate with persons who had a criminal record and who wer e subject to preventive or security measures; not to return home later than 10 p.m. or to leave home before 6 a.m., except in case of necessity and only after giving notice to the authorities in good time; not to keep or carry weapons; not to go to bars, n ightclubs, amusement arcades or brothels and not to attend public meetings; not to use mobile phones or radio communication devices; and to carry at all times the document setting out these obligations ( carta precettiva ) and present it to the police autho rity on request.

Seven months later, that decision was quashed by the Court of Appeal, which held that at the time the measure had been imposed, the danger posed by the applicant had not been substantiated by any persistent criminal activity on his part.

L aw

Article 5 § 1: Article 5 was not concerned with mere restrictions on liberty of movement, which were governed by Article 2 of Protocol No. 4. As an exception, in Guzzardi v. Italy ( 7367/76 , 6 Nov ember 1980) the Court had nevertheless held that measures of this nature could be said to amount to deprivation of liberty in view of the extremely small size of the area where the applicant had been confined, the almost permanent supervision to which he h ad been subjected and the fact that it had been almost completely impossible for him to make social contacts. In all subsequent cases, the Court had not found that there were comparable special circumstances, including where applicants had been prohibited from leaving home at night.

In the present case, the following reasons prompted the Court to find that the measures in issue did not amount to deprivation of liberty: (a) the applicant had not been forced to live within a restricted area; (b) as he remaine d free to leave home during the day, he had been able to have a social life and maintain relations with the outside world; (c) the prohibition on leaving home at night except in case of necessity (between 10 p.m. and 6 a.m.) could not be equated to house a rrest; and (d) he had never sought permission from the authorities to travel away from his place of residence.

Article 5 was therefore not applicable.

Conclusion : inadmissible (majority).

Article 2 of Protocol No. 4: The measures in issue had had a legal b asis, namely Act no. 1423/1956, as interpreted in the light of the Constitutional Court’s judgments.

In the Court’s view, however, the imposition of preventive measures on the applicant had not been sufficiently foreseeable and had not been accompanied by adequate safeguards against the various possible abuses. The Act in question had been couched in vague and excessively broad terms, being insufficiently clear and precise as regards both the individuals to whom preventive measures were applicable (section 1 of the Act) and the content of certain of these measures (sections 3 and 5 of the Act).

(a) Persons targeted by the measures – On the basis of the following considerations, the Court reached the conclusion that, owing to the lack of a clear definition of the scope and manner of exercise of the very wide discretion conferred on the courts, the Act had not afforded sufficient protection against arbitrary interferences and had not enabled the applicant to regulate his conduct and foresee to a sufficiently certain degree the imposition of the preventive measures.

(i) In its recent case-law, the Italian Constitutional Court had held, in response to the contention that the relevant provisions were insufficiently precise, that simply belonging to one of the c ategories of individuals referred to in section 1 of the Act was not sufficient to justify the imposition of a preventive measure, and that preventive measures could therefore not be adopted on the basis of mere suspicion.

Notwithstanding those indications , the fact remained that neither the Act nor the Constitutional Court had clearly identified the “factual evidence” or the specific types of behaviour which had to be taken into consideration in order to assess the danger to society posed by the individual .

(ii) In the present case, the District Court had based its decision on the existence of “active” criminal tendencies on the applicant’s part, yet had not attributed any specific behaviour or criminal activity to him.

Furthermore, the court had mentione d as grounds for the preventive measure the fact that the applicant had no “fixed and lawful occupation” and that his life was characterised by regular association with prominent local criminals ( malavita ) and the commission of offences.

In other words, it had based its reasoning on the assumption of “criminal tendencies”, a criterion that the Constitutional Court had already identified as insufficient.

(b) Content of the measures

(i) Imprecise definition of certain obligations – As well as allowing the c ourts to impose “any other measures deemed necessary” in view of the requirements of protecting society, the Act provided for the imposition of vague and unclear obligations, such as to “lead an honest and law-abiding life” and “not give cause for suspicio n”.

The case-law of the Constitutional Court had not compensated for those shortcomings; by referring to equally indeterminate concepts or to the entire Italian legal system, the Constitutional Court had provided no further clarification as to the specific norms whose non-observance would be a further indication of the person’s danger to society.

(ii) Prohibition on attending public meetings – The measures provided for by law and imposed on the applicant had also included a prohibition on attending public meetings. This had in effect been an absolute prohibition. The Act did not specify any temporal or spatial limits as to the possibility of restricting this fundamental freedom, leaving the matter entirely to the discretion of the judge without indicating w ith sufficient clarity the scope of such discretion and the manner of its exercise.

Conclusion : violation (unanimously).

Article 37 § 1: The Government had submitted a unilateral declaration acknowledging that the applicant had suffered a violation of Arti cle 6 § 1 of the Convention on account of the lack of a public hearing, and undertaking to pay him a sum of money in respect of procedural costs (but not in respect of non-pecuniary damage).

However, unlike in the case of preventive measures concerning pr operty, there were no previous decisions on the question whether Article 6 § 1 was applicable to proceedings for the application of preventive measures concerning individuals, such as those imposed in the present case, and, if so, whether hearings on such matters should be held in public.

Conclusion : request for striking out rejected (unanimously).

Article 6 § 1

(a) Applicability – The criminal aspect of Article 6 § 1 was not applicable, since special supervision was not comparable to a criminal sanction, given that the proceedings concerning the applicant had not involved the determination of a “criminal charge”.

However, there h ad been a shift in the Court’s case-law towards applying the civil aspect of Article 6 to cases which might not initially appear to concern a civil right but might have direct and significant repercussions on a private right belonging to an individual (see Alexandre v. Portugal , 33197/09, 20 November 2012, Information Note 157 , and Pocius v. Lithuania , 35601/04 , 6 July 2010).

In the present cas e, the obligations entailing not leaving the district of residence, not leaving home between 10 p.m. and 6 a.m., not attending public meetings and not using mobile phones or radio communication devices fell undoubtedly within the sphere of personal rights and were therefore civil in nature (see, mutatis mutandis , Enea v. Italy [GC], 74912/01, 17 September 2009, Information Note 122 , and Ganci v. Italy , 41576/98, 30 October 2003, Information Note 57 ).

A “genuine and serious dispute” had arisen in relation to those rights when the District Court had placed the applicant under special supervision, dismissing his arguments. The di spute had then been conclusively settled by the judgment of the Court of Appeal, which had acknowledged that the preventive measure imposed on the applicant had been unlawful.

Conclusion : admissible (unanimously).

(b) Merits (lack of a public hearing) – T he applicant had not had the opportunity to challenge the measure at a public hearing. The Court reiterated that the obligation to hold a public hearing was not absolute since the circumstances that could justify dispensing with a hearing depended essentia lly on the nature of the issues to be determined by the domestic courts.

The circumstances of the present case had dictated that a public hearing should be held, bearing in mind that the domestic courts had had to assess aspects such as the applicant’s cha racter, behaviour and dangerousness, all of which had been decisive for the imposition of the preventive measure.

Conclusion : violation (unanimously).

The Court also held, by fourteen votes to three, that there had been no violation of Article 6 § 1 in ter ms of the fairness of the proceedings, particularly as regards the assessment of the evidence at first instance, and, by twelve votes to five, that there had been no violation of Article 13 in conjunction with Article 2 of Protocol No. 4.

Article 41: EUR 5 ,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage rejected.

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