Resolution CM/ ResDH (2011)123 [1]

Execution of the judgments of the European Court of Human Rights

Bocellari and Rizza , Bongiorno and others, Leone, Perre and others against Italy

(Application No. 399/02, judgment of 13 November 2007, final on 2 June 2008

Application No. 4514/07, judgment of 2 February 2010, final on 2 May 2010

Application No. 30506/07, judgment of 2 February 2010, final on 2 May 2010

Application No. 1905/05, judgment of 8 July 2008, final on 8 October 2008 )

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concerns the impossibility to request a public hearing in proceedings for the application of preventive measures aimed at the seizure and confiscation of property and movable assets of a person, due to suspicions of membership of a criminal organisation (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)123

Information on the measures taken to comply with the judgments in the cases of

Bocellari and Rizza , Bongiorno and others, Leone, Perre and others against Italy

Introductory case summary

These cases concern the fact that the applicants were prevented from requesting a public hearing in proceedings for the application of preventive measures against them in 1997, 1999 and in 2002 (violation of Article 6§1). The proceedings were aimed at authorising the seizure of the applicants ’ property and movable assets on account of suspicion that the first applicant in Bocellari and Rizza and the applicants ’ relatives in other cases were members of a criminal organisation.

In particular, Article 4 of Act No. 1423/1956 (as amended by Act No.646/1982), on the application of preventive measures to persons "representing a danger to public security and morality" provides that the court decides in chambers after hearing the public prosecutor and the interested party, who may submit a pleading and be represented by counsel. Act No. 575/1965 complemented the 1956 Act by introducing provisions dealing with persons suspected of belonging to mafia-like associations; its Article 2 ter provides that the court may also decide in chambers. It does not provide the possibility for parties to request a public hearing.

The European Court considered it essential that parties to such proceedings were at least offered the opportunity to request a public hearing before the specialised divisions of ordinary and appeal courts (see §41 of the judgment Bocellari and Rizza ).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Bocellari and Rizza

399/02

-

-

2000 EUR

2000 EUR

Paid on 22/07/2008

Bongiorno and others

4514/07

-

-

3000 EUR

3000 EUR

Paid on 15/07/2010

Leone

30506/07

-

-

3000 EUR

3000 EUR

Paid on 02/07/2010

Perre and others

1905/05

-

-

-

b) Individual measures

The Court held that the finding of the violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants. As regards pecuniary damages, the Court found no causal link between the violation and the damages claimed (cases of Leone and Bongiorno and others). It should be noted that the applicants did participate in the proceedings following those at issue, which resulted in the confiscation of many assets; in particular they took part in hearings in 1999 ( Bocellari and Rizza ), in 1997 ( Perre ), in 2002 (Leone) and in 2003 ( Bongiorno and others) with the participation of the public prosecutor. In addition, two levels of jurisdiction decided on the merits of each case. Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

In decision No. 93/2010 of 12/03/2010, the Constitutional Court - quoting the judgments of the European Court in the cases Bocellari and Rizza , Perre and Bongiorno - declared Articles 4 of Act No. 1423/1956 and 2ter of Act No. 575/1965 constitutionally illegitimate "as they do not allow that, upon request of the interested persons, proceedings on the application of preventive measures are carried out in public hearings before first-instance courts and courts of appeal”. In line with the conclusions of the European Court (see the judgement in Bocellari and Rizza , §37), the Constitutional Court specified that the judge “keeps the power to order that the hearing is totally or only partially carried out without the presence of the public, if the specificities of the concrete case so require [ ... ]" (see judgment of the Constitutional Court, part on the merits, §10).

Henceforth, following the decision of the Constitutional Court , the applicants in this kind of proceedings have the opportunity to request a public hearing.

A summary of the judgments has been published in Italian in the database of the Court of Cassation on the European Court ( http://www. i talg i ure.giustizia.it ) . This website is widely used by all those who practice law in Italy , civil servants, lawyers, prosecutors and judges alike. The judgments have been sent out to the competent authorities.

III. Conclusions of the respondent state

The government considers that no further individual measure is necessary, apart from the payment of the just satisfaction awarded to the applicants by the Court, that the general measures adopted will prevent similar violations and that Italy has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies