Information Note on the Court’s case-law 34

September 2001

Riela v. Italy (dec.) - 52439/99

Decision 4.9.2001 [Section I]

Article 1 of Protocol No. 1

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Confiscation of property of persons suspected of belonging to a criminal organisation: inadmissible

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Proceedings concerning the app lication under Italian law of preventive measures involving the confiscation of property: Article 6 applicable

Fair hearing

Failure to inform of opening of proceedings concerning property rights: inadmissible

Public hearing

Non-public proceedings before the Court of Cassation and absence of participation of applicants' lawyers: inadmissible

Criminal charge

Proceedings concerning the application under Italian law of preventive measures involving the confiscation of property: A rticle 6 inapplicable

In December 1995 the Catania Court of First Instance made an order for the confiscation of various property belonging to the applicants, including land, buildings, vehicles, and shares in certain trading companies, pursuant to the Law on Preventive Measure s, on the ground that the property was, or had been acquired with, the proceeds of crime. It held that a number of factors indicated that the first two applicants were members of a criminal organisation based in Sicily, whose existence had been established by the statements of a pentito (a former member of the Mafia). The Catania Court of Appeal upheld that decision in March 1998. Having examined the file it considered that it was reasonable to consider that the property concerned was, or had been acquired with, the proceeds of crime. In a judgment of March 1999 the Court of Cassation dismissed an appeal on points of law lodged by the applicants. The procedure before the Court of Cassation was held in private. The applicants’ lawyers were not permitted to at tend the hearing. The order for the confiscation of the property has thus become final but, according to the information provided to the Court, has yet to be executed.

Inadmissible under Article 1 of Protocol No. 1: the confiscation constituted an interfer ence with the applicants’ right to the peaceful enjoyment of their possessions. That measure constituted control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (and not a deprivation of possessions). The me asure was provided for by law and pursued a legitimate aim. As to whether the measure was proportionate to the aim pursued, the Court afforded legislatures a wide discretion as regards policy for crime prevention and there was no principle under the Conven tion prohibiting presumptions of fact or law. The Court’s role was to establish whether, regard being had to the seriousness of the measure imposed, the proceedings before the Italian courts had afforded the applicants a reasonable opportunity to put forwa rd their case to the relevant authorities. They had in the case before the Court since the procedure under which the preventive measures were imposed was adversarial and before three levels of jurisdiction. Further, the courts concerned had examined the fa cts objectively and not relied on mere suspicion. In particular, they had analysed the applicant's financial situation before concluding that the property that had been confiscated could only have been acquired from the proceeds of crime. Thus, regard bein g had to the margin of appreciation afforded to the States when controlling “the use of property in accordance with the general interest”, in particular as part of policy for combating organised crime, the interference was not disproportionate: manifestly ill founded.

Inadmissible under Article 6 § 1: (a) under Italian law, the confiscation of the applicants’ property under preventive measures did not connote a finding of guilt but was intended to prevent criminal activity. Moreover, no conviction of a crim inal offence was required for the imposition of preventive measures, which thus distinguished them from “penalties”. The criminal limb of Article 6 was therefore inapplicable. However, the civil limb of Article 6 applied to any action whose subject matter was “pecuniary” in nature and which was founded on an alleged infringement of rights that were likewise of a pecuniary character, as in the case before the Court. The civil limb of Article 6 was therefore applicable.

(b) as regards the failure to inform th e applicants of the commencement of the proceedings – whose effects on their property rights had been serious – their resulting application to have the judgment quashed had been made out of time and, in any event, they would be entitled to assert their pro perty rights in the proceedings for execution of the confiscation order. As those proceedings had yet to begin, the allegations on that point were premature. Furthermore, although not all the names of those affected had been set out in the heading to the c onfiscation order of March 1998, that clerical error could not have affected the fairness of the proceedings, in particular as the reasons for the impugned decision and the operative provisions of that decision had clearly identified all the owners of the confiscated property: manifestly ill founded.

(c) as regards the lack of a public hearing before the Court of Cassation and the fact that the applicants’ lawyers were prohibited from attending, it could be seen from an examination of the impugned procedure that the appeal on points of law had been lodged after the case had been considered by two courts, both of which had had full jurisdiction on the merits and had held hearings which the parties’ lawyers had been able to attend. Furthermore, the lawyers con cerned had been able to lodge submissions in support of the appeal to the Court of Cassation. Thus, regard being had to the role of the Court of Cassation and to the proceedings considered as a whole, there was no appearance of a violation of Article 6 § 1 : manifestly ill founded.

[Note: this decision further clarifies the case-law after the judgment of Raimondo v. Italy of 22 February 1994].

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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