Published on 21 June 2021

FIRST SECTION

Application no. 10794/12 Giuliano GERMANO against Italy lodged on 5 January 2012 communicated on 31 May 2021

SUBJECT MATTER OF THE CASE

At the conclusion of stalking-prevention proceedings, the police – at the request of the applicant ’ s wife – issued a ‘ warning ’ ( ‘ ammonimento ’ ) against the applicant pursuant to Article 8 of Law-Decree no. 11 of 23 February 2009 (converted into Law no. 38 of 23 April 2009). The warning imposed on the applicant a duty to abide by the law and avoid repetition of conduct of the kind giving rise to the issuance of the warning. Violation of those duties would lead to prosecution. Issuance of the warning has a two-fold effect in the sphere of Italian criminal law. Firstly, prosecution against the applicant for the offence of stalking could be initiated by authorities of their own motion, namely, without the requirement that the victim submits a formal request for prosecution ( querela ). Secondly, committing the offence of stalking after the issuance of the warning constitutes an aggravating factor in sentencing. The applicant was never notified of ongoing police proceedings; hence he was never placed in a position to exercise any participatory rights, including being heard, submitting observations or tendering evidence.

The applicant challenged the warning before administrative courts. At first instance, the Liguria Regional Administrative Court set the warning aside, finding that respondent authorities failed to provide sufficient reasons to dispense with the applicant ’ s participatory rights. On appeal from respondent authorities, the Consiglio di Stato , holding that authorities had properly explained why proceedings had to be conducted expeditiously, quashed the first-instance decision, thereby reinstating the warning.

The applicant complains under Articles 6 and 8 of the Convention.

QUESTIONS TO THE PARTIES

1. Is Article 6 § 1 of the Convention applicable, under its civil limb, to the circumstances of the present case? In particular, did the restrictions and the possible legal consequences stemming from the warning have a direct and significant repercussion on a civil right belonging to an individual ( De Tommaso v. Italy [GC], no. 43395/09, §§ 151-152, 23 February 2017; see also, mutatis mutandis , Karastelev and Others v. Russia , no. 16435/10, §§ 116-117, 6 October 2020), taking also into account the potential impact on the applicant ’ s contact with family members, right to reputation and professional life ( Pocius v. Lithuania , no. 35601/04, §§ 40-41, 43, 6 July 2010; Alexandre v. Portugal , no. 33197/09, §§ 52, 54-55, 20 November 2012)?

If so, was the decision of the police authorities either delivered in conformity with the requirements of Article 6 § 1 of the Convention, or subject to subsequent control by a judicial body having full jurisdiction and providing the guarantees of Article 6 § 1 ( Sigma Radio Television Ltd v. Cyprus , nos. 32181/04 and 35122/05, § 151, 21 July 2011)? In particular, have administrative courts exercised “sufficient jurisdiction” or provided “sufficient review” in the proceedings before them (see Ramos Nunes de Carvalho e Sá v. Portugal , nos. 55391/13, 57728/13 and 74041/13, §§ 177-186, 6 November 2018)? Have they adopted a deferential standard of review in the proceedings against preventive measures issued by police authorities, and specifically against the above-mentioned warning (see e.g. Consiglio di Stato judgment no. 4241/2016; Consiglio di Stato judgment no. 2419/2016)?

2. Has there been an interference with the applicant ’ s right to respect for his private and family life, within the meaning of Article 8 § 1 of the Convention?

2.1. If so, was the interference in accordance with the law in terms of Article 8 § 2, notably, was it accessible and foreseeable ( Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 (extracts))? In particular, the parties are invited to answer this question taking into account :

– ( i ) whether domestic law (see Court of Cassation judgment no. 17350/2020) gave individuals an adequate indication as to the circumstances in which, and the conditions on which, the authorities are entitled to issue a warning; and

– (ii) whether the warning was formulated with sufficient precision to enable the applicant to regulate his conduct, in the light, notably, of the wide discretion granted to the executive ( Karastelev and Others v. Russia , no. 16435/10, §§ 79, 90-91, 6 October 2020) as well as the breadth of the obligation, imposed by the warning, to “abide by the law” and “avoid repetition of conduct of the kind giving rise to the issuance of the warning” (see, mutatis mutandis , De Tommaso v. Italy [GC], no. 43395/09, § 122, 23 February 2017);

2.2. If so, was the interference necessary in terms of Article 8 § 2, considering, in particular, whether the decision-making process leading to the issuance of the warning was fair and sufficiently thorough, and such as to afford due respect to the interests safeguarded by Article 8 ( Fernández Martínez v. Spain [GC], no. 56030/07, § 147, ECHR 2014 (extracts))? In particular, the parties are invited to answer this question taking into account :

– ( i ) the opportunities provided to the applicant to be involved in that process (see Lazoriva v. Ukraine , no. 6878/14, § 63, 17 April 2018; on the applicability to warning proceedings of participatory rights ordinarily informing the administrative procedure according to Law no. 241 of 7 August 1990, compare Consiglio di Stato judgment no. 2414/2020 and T.A.R. Lazio, Roma, Sez. I, judgment no. 8968 of 10 August 2018 with Consiglio di Stato judgment no. 2108/2019 and Consiglio di Stato judgment no. 6038/2014); and

– ( ii) the scope of the judicial review before administrative courts, including the establishment of a sufficient factual foundation and the assessment of the lawfulness, necessity and proportionality of the interference;

2.3. Was the interference proportionate to the aim it pursued in terms of Article 8 § 2 (see, mutatis mutandis , Enea v. Italy [GC], no. 74912/01, § 143, 17 September 2009)?

3. Reference being made to question no. 2.3 above, the Government are invited to specify whether a warning remains in effect for an indefinite period of time (see e.g. Consiglio di Stato judgment no. 6038/2014), whether there is a remedy specifically available to request revocation (see e.g. T.A.R. Bolzano, judgment no. 262 of 24 June 2015), whether domestic law provides for automatic periodic reviews, or assigns any significance in this regard to the initiation or development of related criminal proceedings against the applicant (see Consiglio di Stato judgment no. 6038/2014);

3.1. Reference being made to questions nos. 1 and 2.2 above, the Government are invited to submit to the Court examples of administrative courts ’ decisions reviewing warnings.