Published on 27 November 2023

FIRST SECTION

Application no. 26338/19 Francesca TARTAMELLA and Barbara TARTAMELLA against Italy and 2 other applications (see list appended) communicated on 6 November 2023

SUBJECT MATTER OF THE CASE

The applications concern the confiscation of the applicants’ assets, which were considered to be equivalent to the proceeds of crime (“confiscation by equivalent means”; confisca per equivalente ).

The applicants are family members of persons convicted of crimes which give rise to the confiscation of assets by equivalent means. The national courts established that certain assets formally owned by the applicants belonged, in reality, to the convicted persons and were equivalent to the proceeds of the crimes. As a consequence, they ordered their confiscation.

More detailed information on the national decisions, as well as each applicant’s complaints, are indicated in the appended table.

The applicants complain under Article 6 of the Convention that they could not take part in the criminal proceedings which led to the confiscation; under Article 7 of the Convention of the imposition of a penalty for a crime committed by others; and under Article 1 of Protocol No. 1 to the Convention that the confiscation lacked a foreseeable legal basis in regard to the determination of the ownership of the confiscated assets and was, in any event, disproportionate to the aim pursued.

QUESTIONS TO THE PARTIES

The complaints raised in each application, and the corresponding questions which the parties are requested to answer, are indicated in the appended table.

1. Did the applicants have access to a court, as required by article 6 § 1 of the Convention?

In particular, taking into account that they could ask for the restitution of assets before the judge of the execution ( incidente di esecuzione ), was the impossibility to participate in the criminal proceedings in which the confiscation was ordered compatible with their right of access to court under Article 6 § 1 of the Convention (see Veits v. Estonia , no. 12951/11, § 59, 15 January 2015 and Silickienė v. Lithuania , no. 20496/02, § 50, 10 April 2012)?

2. Taking into account the characterisation of the contested measure by the national courts (see, for example, Constitutional Court, decision no. 97 of 2 April 2009 and, recently, Court of Cassation, decision no. 15229 of 16 March 2022), can the confiscation of the proceeds of crime by equivalent means be considered a penalty within the meaning of Article 7 § 1 of the Convention (see, for general principles, G.I.E.M. S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 others, § 211 ss., 28 June 2018; see also Vannucci v. San Marino (dec.) , no. 33898/15, § 41, 28 March 2017; compare and contrast Voiculescu v. Romania , no. 5325/03, §§ 12-13, 3 February 2009)?

If so, taking into account that the applicants were not parties to criminal proceedings and were not convicted of any crime, were they punished for an offence committed by other persons, in breach of Article 7 of the Convention (see G.I.E.M. S.R.L. and Others , cited above, §§ 246 and 270-272)?

3. Was the confiscation of the applicants’ assets in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1 to the Convention? In particular, was the confiscation of third parties’ assets, based on the assessment that they belonged in reality to the convicted persons, sufficiently foreseeable and non-arbitrary in the present case?

4. If so, was the confiscation of the applicants’ assets proportionate to the aim pursued, as required by Article 1 of Protocol No. 1 to the Convention? In particular, the parties are invited to address the following points:

(i) whether the domestic authorities showed that the confiscated assets belonged to the convicted persons in a reasoned manner, on basis of an objective assessment of the factual evidence and without relying on a mere suspicion;

(ii) whether the domestic authorities showed that the confiscated assets could have been the proceeds of crimes in a reasoned manner, on basis of an objective assessment of the factual evidence and without relying on a mere suspicion, also in light of the date of their acquisition (see Todorov and Others v. Bulgaria , nos. 50705/11 and 6 others, § 215, 13 July 2021);

(iii) whether the applicants were afforded a reasonable opportunity of putting their arguments before the domestic courts and whether the latter duly examined the evidence submitted by the applicants ( Telbis and Viziteu , cited above, § 78).

APPENDIX

List of cases:

No.

Application no. Case name Introduction date

Applicant’s name Year of birth Place of residence Nationality

Representative’s name Location

Criminal conviction and legal basis for confiscation

National proceedings

Complaints and questions to the parties

1.

26338/19 Tartamella

v. Italy 14/05/2019

Francesca TARTAMELLA 1982 Perugia Italian Barbara TARTAMELLA 1980 London Italian

Silvia RICCI Perugia

F.P.T. convicted of omission of tax declaration (Article 5 of Legislative Decree no. 74/2000), fraud (Article 640 of Criminal Code - "CC") and bankruptcy fraud (Articles 216 and 223 of Royal Decree no. 267/1942). Confiscation ordered on the basis of Article 1 § 243 of Law no. 244/2007 and Article 322 ter CC

Criminal proceedings against F.P.T. (final decision of Court of Cassation,

26 January 2015). The applicants filed an opposition against the seizure of assets: partially upheld and partially declared inadmissible (final decision: Brescia District Court, 5 September 2012). The applicants requested the restitution of assets to the judge of the execution: rejected (final decision:

Court of Cassation,

21 November 2018).

Art. 7 - penalty without conviction (question no. 2)

Prot. 1 Art. 1 - lack of legal basis (question no. 3) Prot. 1 Art. 1 - assessment of fictitious ownership and of unlawful origin

(question no. 4)

2.

1823/21 Koka v. Italy 23/12/2020

Szilvia KOKA 1974 Costa Volpino Hungarian

S.Z. convicted of money laundering (Article 648 bis CC) Confiscation ordered on the basis of Article 648 quater CC

Criminal proceedings against S.Z. (final decision: Milan preliminary investigation judge, 24 July 2018) The applicants requested the restitution of assets to the judge of the execution: rejected (final decision:

Court of Cassation,

7 July 2020).

Art. 6 - access to court

(question no. 1) Art. 7 - penalty without conviction (question no. 2) Prot. 1 Art. 1 - assessment of fictitious ownership and of unlawful origin

(question no. 4)

3.

12868/22 Santorelli

v. Italy 01/03/2022

Silvia SANTORELLI 1985 Savignano sul Panaro Romanian

Pina DI CREDICO Reggio Emilia

F.S. convicted of membership of a criminal association (Art. 416 CC) and unlawful adjustment payment (Art. 10 quater Legislative Decree no. 74/2000). Confiscation ordered on the basis of Article 12 bis of Legislative Decree no. 74/2000 and Article 322 ter CC

Criminal proceedings against F.S. (final decision: Modena preliminary investigation judge, 12 May 2020) The applicant filed an opposition against the seizure of assets: rejected (final decision: Court of Cassation, 7 April 2021).

Art. 7 - penalty without conviction (question no. 2)

Prot. 1 Art. 1 - lack of legal basis (question no. 3)

Prot. 1 Art. 1 - assessment of fictitious ownership and of unlawful origin

(question no. 4)