CONCURRING OPINION OF JUDGE SABATO

1. I can share only one finding (which I will set out below in §§ 51-52 of this Opinion) of the several made by the majority in this case. This enabled me to support the conclusion that there has been a violation by the respondent State of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). I regret having been unable to share the other findings of my distinguished colleagues in the majority, which in my view mark not one, but several, steps backwards in human-rights protection in the context of gender-based violence.

2. Since the majority’s positions and my own diverge in areas of the application of the Convention that are of the utmost importance – in that they concern certain core aspects of the ways and means by which States are to prevent and combat gender-based violence, support and protect victims, and hold perpetrators accountable while respecting the procedural rights of the accused – I feel obliged to set out in some detail the reasons for my dissent, albeit in a concurring opinion. Indeed, should some the principles asserted by the majority acquire the warm patina of undisputed precedent, I fear that the role of the Convention as a powerful instrument to protect individuals [1] from the global epidemic of gender-based violence, in harmonious legal integration with specific international instruments such as the Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”) [2] , would be - at least partly - undermined. Thus, it is my hope that, in this or other cases, the departures from the case-law entailed by the majority’s judgment will be speedily corrected by further jurisprudential developments.

3. In order to clarify the issues at stake, I will (in part II of this opinion) deal with some of the facts that have, in my view, been too quickly disposed of by the majority. Understanding the facts makes it easier to understand the law that ought to be applied, as well as the concepts that the majority and myself have used. In particular, as I relate more about the content of the statement made by the “applicant’s wife” to the police, identifying the applicant as an alleged stalker, and the content of the depositions collected by the police, the references to legal concepts such as witness evidence, urgency of the measure, sufficient reasoning, etc. will appear in a new light.

4. I will then (in part III, which I will subdivide into several chapters) identify the (several) points of disagreement between the majority’s findings and my own, as well as the (one) point of agreement. I will finally draw some conclusions (part IV).

5. The majority, in paragraph 7 of the judgment, relate that “On 13 November 2009 the applicant’s wife”, Ms C.S. [3] , lodged a request ( richiesta ) with the questore [local police authority] of Savona, asking it to issue a caution as provided for by section 8 of Decree-Law no. 11 of 23 February 2009 on urgent measures for public security and combating sexual violence and stalking (“Decree-Law no. 11/2009”), converted into Law no. 38 of 23 April 2009 (“Law no. 38/2009” – see paragraphs 25-26 of the judgment).

6. Paragraph 7 of the judgment, in the subsequent two sentences, contains an accurate – but in my view too short – summary of the content of the alleged victim’s request. The woman’s narrative was contained in an 8-page richiesta to the police; the Government, in their first observations (pp. 4-5), summarise it in one and a half pages; this will be the length also of my recapitulation. This is a necessary exercise: in the area of violence against women, which “often takes place within personal relationships or closed circuits” (see Opuz v. Turkey , § 132, 9 June 2009), the victim, who is always also an important witness and often the only one, should never see her narration underestimated. Victims count (although unfortunately in the majority judgment Ms C.S. has not been “counted” as a witness – see paragraph 17 of this Opinion). [4]

7. As I am about to embark on the dangerous exercise of re-reading, within an international court, evidence that the domestic authorities had before them, I must clarify that I indulge in this exercise only because the majority did so first (by counting and comparing witnesses, by substantially disregarding Ms C.S.’s account, by holding that there was no urgency, etc. – see below). Given the Court’s subsidiary role, second-guessing the domestic assessment of evidence should take place only when arbitrariness is evident. The majority held that such arbitrariness existed, while – in principle – I do not (as mentioned, I find only a procedural flaw). However, if the second ‑ guessing of evidence in a case concerning violence against women must be done, then I consider that, as a starting point, the Court should take the voice of the alleged victim seriously. I repeat, victims count.

8. In reading the victim’s request of 13 November 2009, one learns that Ms C.S., born in 1971 and an optometrist who managed her own optician’s shop, and Mr Giuliano Germano, born in 1956 and a lawyer, had married in 1998; a daughter had been born in 2002.

9. Ms C.S. complained that her husband had displayed “repeated harassing conduct, as narrated below”, which had “forced her to radically change [her] daily habits, generating well-founded fear for [her] personal safety and causing, for these reasons, a persistent and serious state of anxiety and terror”.

10. Ms C.S.’s 8-page document reported, among other points:

(a) “oppressive and obsessive behaviour ... determined by an excessive and unjustified jealousy” on her husband’s part, which had led him, “especially in recent years, to subject [her] to frequent checks and unlawful investigations”;

(b) from 2006 (three years before the request to the police) the applicant’s behaviour had begun to “turn into real violence” against her person; in particular, he inflicted “beatings and injuries” in that year, as attested by a police intervention at the home and a report by a hospital emergency unit; after a month during which Ms C.S. had found shelter at her parents’ home, the husband had convinced her not to further contact the police, which she accepted in view of the fact that their daughter was then only 4 years old;

(c) in 2008 (the year before the request to the police) he had punched her in the chest, while in 2009 (when the request to the police was made) the applicant, in front of numerous witnesses in a seaside establishment, verbally insulted her and grabbed her by the neck, with attacks continuing in the evening and until the next morning, when she was again treated, as in 2006, by a hospital emergency unit; Ms C.S. decided to file a criminal complaint with regard to this episode, in respect of which criminal proceedings were pending;

(d) in 2009 Ms C.S. initiated judicial separation proceedings; although the family court granted her custody rights in respect of their daughter, Mr Germano continued to utter threats and apply abusive pressure during encounters;

(e) Ms C.S. had then learned that physical assaults, allegedly committed by Mr Germano, had also been reported by other women who had previously been in relationships with him;

(f) in the seven months before the request to the police, Mr Germano’s conduct moved towards “clear stalking”, in that:

- on 8 May 2009, while the woman was with her daughter and in the presence of one of her friends, Ms L.V., Mr Germano appeared at the foot of the building in which she was housed, shouting and ranting, and instructing her from the street to show him their daughter; the insults (some of them specifically cited in the request to the police) continued when the child, accompanied by L.V., went downstairs to see her father; a month later Mr Germano threatened L.V., ordering her not to report the incident; Mr Germano further threatened L.V. by telephone;

- at 5.30 a.m. on the same morning her e-mail provider had notified Ms C.S. about suspicious attempted access to her mailbox, for which Mr Germano knew a previous password;

- in the same month of May 2009, throughout an entire afternoon, Mr Germano made several phone calls to the child’s baby-sitter, each time interrupting the call; this was followed at 7 pm by a phone call from Mr Germano to Ms C.S., accusing her of having ordered the baby-sitter not to answer the phone; he mentioned that he would therefore have asked the judge in charge of the separation proceedings to verify the relevant telephone records, demonstrating this fact as being pertinent to his arguments;

- on 9 May 2009 Ms C.S. had dinner with two couples; the next morning Mr Germano telephoned one person from each couple, asking about his wife’s acquaintances;

- Mr Germano then requested information to find out whether Ms C.S. had genuinely attended an optometry course she was enrolled in;

- on 19 May 2009 Mr Germano waited for Ms C.S. at the exit of a beauty parlour and, after insulting her, yanked and followed her as she walked away, giving up only when she threatened to call the police;

- on 23 May 2009 Ms C.S. became certain that she had been shadowed in her movements that day, because when she left her optician’s shop, where her daughter remained with the baby-sitter, Mr Germano phoned the latter to ask where Ms C.S was heading for;

- again on 3 June 2009, Mr Germano was found standing in front of the optician’s shop, behind columns from where he was observing Ms C.S.;

- on 29 May 2009, while an employee, Ms S.G., was in the shop, Mr Germano telephoned her, asking for information and alluding to the fact that Ms C.S. was also certainly inside the shop with her lover; due to the constant pressure she was subjected to by Mr Germano, Ms S.G. stated that she wanted to leave her job in the shop;

- on 11 May 2009 Ms C.S. received 15 phone calls from Mr Germano, during which he “constantly threatened [her] that he would wipe the smile off [her] face” and said that “he was making legal moves to ruin [her]” and to make sure that he would “not pay even 1 euro for either the child or [her]";

- in September 2009, further to a heated argument between the spouses concerning the child (who was present), Mr Germano began to shout, lashing out at Ms C.S., putting his hands around her neck in the gesture of strangling her, and finally dragging away the child, in tears, who did not want to sleep at her father’s home;

- the girl subsequently reported to her mother that she no longer wanted to go to her father’s, “because he says terrible things about [the mother] and insults [her]”;

- on 13 October 2009 Mr Germano informed Ms C.S., by text message, that he would have 12 bags containing her personal belongings delivered to her, along with 3 bags containing the child’s winter clothes, in order to vacate the former family home; the bags were unloaded in broad daylight in front of the optician’s shop by employees of a funeral home, who removed them from a hearse of the type used to transport the deceased to cemeteries; the abnormal use of a funeral home vehicle was reported by Ms C.S. to the competent authorities;

- on the same date of 13 October 2009 Ms C.S. received several telephone calls from Mr Germano, at a telephone number which had been kept confidential; this showed that he was intruding into her private life;

- on 5 November 2009, when opening up the shop, she found excrement deposited on the doorstep; at the same time, on the pavement, she spotted Mr Germano with his current girlfriend, both of whom were laughing.

11. In the request to the police, Ms C.S. further stated that it had become evident that Mr Germano had threatened a number of persons in order to induce them not to have contact with her, and in particular to convince them not to provide her, and the courts, with information of a financial nature that could be useful in the separation proceedings: for example, the electrician, I., had refused to accept a job she requested, as he was afraid of Mr Germano; C.M. had refused to provide a document attesting the purchase of household appliances made at his business; D.G. had refused to make a statement about the upholstery work carried out in the former family house; F.F. had refused to provide photographs he had taken of some works of art owned by the spouses. All of these providers of services had reported their fear of retaliation to Ms C.S.

12. In her account Ms C.S. referred additionally to Ms V.V., to whom Mr Germano had declared that he wanted to make life impossible for his wife by ruining her economically.

13. On 7 November 2009 Mr Germano requested, via text message to the victim, to see their young daughter, who was then out of town with her maternal grandparents. This had caused Mr Germano to contact the police, so that police officers came to the optician’s shop to inquire about possible abduction of the child. In the victim’s view, such intimidation was completely unnecessary, as the father knew where the child was.

14. The woman concluded her request with an indication of the names of persons whom she had informed about the situation.

15. I will abstain from commenting on the merits of the richiesta but, in my view, although – when confronted with the above account – the domestic authorities summarised the facts “as indicated by the person who applied for the caution” (see paragraph 135 of the judgment) with language (appearing in the third sub-paragraph of paragraph 10 of the judgment) which the majority found “lack[ing] in reasoning”, this does not justify the majority’s finding that the caution was worded “in an extremely generic fashion” (paragraph 10). This is especially true if one takes into account that “all the inquiries ... and ... documents were on record” (third sub-paragraph of paragraph 10 of the judgment), and were thus undisputedly accessible to Mr Germano (who, in consequence, was able to produce and comment on them before the domestic courts and this Court). In contrast to the majority, who took an abstract and formalistic approach, the police – by referring to those episodes that they considered to be proven as contained in detail in Ms C.S.’s account – provided sufficient reasoning for the caution.

16. Having clarified what the victim stated, as the first and the most important witness, the exercise I commented on above, with reference also to its limits, must be continued with regard to the other witnesses.

17. In paragraph 8 of the judgment, the majority confirmed that the police took the woman’s account seriously: they “opened an inquiry” and, in two weeks, “collected seventeen witness statements from the people referred to in the applicant’s wife’s request”. In the same paragraph, in an assessment which I will comment upon only briefly below, the majority engage – in the context of an international court – in an exercise that is typical of domestic courts, that is, weighing up and comparing witness statements. Thus, according to the majority, “fourteen statements did not confirm the applicant’s wife’s version of the facts” (emphasis added); only one witness (but “a friend of the applicant’s wife”, an expression usually aimed at diminishing credibility – emphasis added) “confirmed ... episodes” of merely “verbal abuse ... in her presence”; while another witness had merely “been told about an episode of physical assault”. The final witness merely stated that the applicant “had telephoned him several times with the aim of obtaining information about his wife’s life”. Thus, according to the majority, the reasoning in the caution was also insufficient with regard to the assessment of evidence, because “there is no reference ... to the fact that the vast majority of the witnesses had not confirmed the applicant’s wife’s version of the facts” (see paragraph 136 of the judgment). In sum, the match ends 14-3 or even 15 ‑ 2, depending on how one counts; the eighteenth person (Ms C.S., the victim), as I mentioned, is not included in the final headcount. The victim should count, and be counted.

18. If we overlook the fact that evidence must be weighed and not counted ( testes ponderantur, non numerantur ), in these circumstances even the very numbers indicated by the majority could be considered – with all due respect – not to add up, as my exercise will show. While the depositions are summarised in two sentences in the above passage of the majority’s judgment (the final sentences of paragraph 8), they are much more clearly referred to in two half-pages (pp. 5-6) of the Government’s first observations. My summary follows:

(a) C.M., an appliance dealer (as noted above), denied having been pressured and stated that he had been unable to certify the sales because they had occurred quite some time previously;

(b) U.D., a friend of both spouses, reported the separation proceedings as being very conflictual, and acknowledged that there had been outbursts by Mr Germano; however, he did not consider them to be defamatory;

(c) L.V., a friend of Ms C.S.’s (as mentioned above, and, according to the majority, the only witness to endorse her “version”), indeed confirmed the episode in which verbal abuse had taken place in her presence; in addition to what is noted in the judgment, she mentioned that the child had also been present; she provided the further information that she had been warned by Mr Germano not to testify in the separation proceedings in favour of his wife, “otherwise [he] would have to make [her] pay”; she did not confirm that she had received additional telephone threats, but reported that she had received anonymous letters;

(d) the threatening phone call received by L.V. was confirmed by E.O., L.V.’s mother, who had witnessed the receipt of the call;

(e) M.G.E. and D.E., speaking in generic terms, confirmed the conflictual nature of the separation proceedings;

(f) V.V. stated that Mr Germano had told her that he wanted to take his wife to a point where she would say “enough”; indeed Mr Germano boasted that he had not incurred legal fees, while Ms C.S. had to pay the lawyers she hired; when V.V. had referred in a conversation with Mr Germano to the circumstance that it was he who was in the wrong, because he had beaten his wife, he had replied: “she will have to prove it”; similarly, when she reproached him for having kept all the furniture paid for by his wife, he had walked away, saying “she will have to prove it”;

(g) R.P., an estate agent, denied having been pressured by Mr Germano, and stated that he had advised Ms C. S. not to rent an apartment he was managing as an estate agent simply because he would be embarrassed that Mr Germano, his friend, would learn that they had been in contact;

(h) D.A. confirmed that he had carried out upholstery work, paid for by Ms C.S., but denied that he had refused to issue payment receipts due to pressure, as he simply no longer remembered the details;

(i) F.F., the above-mentioned photographer, confirmed that he had refused to give Ms C.S. a reprint of a photo shoot relating to paintings and works of art in the couple’s apartment, but this had been only because the service had been requested by Mr Germano and not by her;

(j) P.R.D.R., owner of the funeral home, stated that his staff had transported packages free of charge, given his friendship with Mr Germano; however, the vehicle used was not the hearse used to transport coffins, but the accompanying vehicle used to carry flowers at funerals;

(k) M.G.A. confirmed that a day after she had gone out for dinner with Ms C.S., she had received a phone call from Mr Germano, who wanted to know if Ms C.S. was having an affair with somebody; she also reported the argument that ensued when she reprimanded him for beating his wife;

(l) A.M. stated that he knew nothing about the episode on which he was called to testify;

(m) F.B. confirmed that, a day after going out for dinner with Ms C.S., he had received a phone call from Mr Germano, asking who the woman was with;

(n) S.G., the child’s baby-sitter, confirmed that she had received many phone calls from Mr Germano asking where his wife was and what she was doing; in particular, when S.G. told him once that Ms C.S. was absent in order to protect her privacy, he had said on the phone “Well then, today she is with her lover”; as a result of the pressure, S.G. reported having given up her baby ‑ sitting job; she additionally reported that she had once found the child in tears, saying that her parents had quarrelled over the weekend and that Mr Germano had beaten her mother, who had left home;

(o) I.L., an electrician, admitted that he had declined a request by Ms C.S. for electrical work because he did not want to remain “involved in the dispute” between the spouses, without however having been subjected to any pressure from Mr Germano;

(p) R.R., Ms C.S’s brother-in-law, reported that he had not been a direct witness of mistreatment or violence, but such abuse had been reported to him by his sister-in-law.

19. I believe that such a summary is self-explanatory. On this basis, just as I had to indicate my different position with regard to the majority’s failure to give due credence to the alleged victim’s account, summarised in the two final sentences in paragraph 7 of the majority’s judgment, I consider that I cannot share their assessment that “fourteen statements did not confirm the applicant’s wife’s version of the facts”, only one witness (but “a friend of the applicant’s wife”) “confirmed ... episodes” of merely “verbal abuse ... in her presence”, while another had just “been told about an episode of physical assault” and the final one merely stated that the applicant “had telephoned him several times with the aim of obtaining information about his wife’s life”. Indeed, there is much, much more, which I do not consider it my task to assess in detail.

20. The majority – albeit with the reductive approach to which I have drawn attention – are right in saying that, although the minutes of the caution made reference not only to “the inquiries undertaken by the police” but also to “the additional documents gathered, all on the record” (see paragraph 10), “there is no indication as what those documents were and what conclusions were drawn from them” (see paragraph 136). Our file only contains the witnesses’ depositions. However, if one considers the limits of evidence ‑ taking at the Court, based on submissions from the applicant and the Government, one might easily conclude that it is not important – especially in a matter concerning allegations of stalking – the totality of what the Court has before it: aware of its subsidiary role, it should review only the non-arbitrariness of the domestic authorities’ assessment of evidence.

21. In a context in which, although defining the facts as “ill-founded”, in his appeal before the TAR (pp. 2-3) the applicant mentions that he “does not want to dwell on ( ci si esime da ) refuting the fluvial mass of accusations” made by Ms C.S., and concentrates only on legal aspects, I consider that the Court could easily have credited the national authorities with having checked, and documented by copies and/or screenshots, all the factual elements which Ms C.S. very specifically mentions in her request. This specificity deserves prima facie credibility, and the fact that Mr Germano does not want to dwell on them has some meaning: previous police interventions, visits to hospital emergency rooms, text messages indicated with numbers and dates and stored on Ms C.S.’s telephone, as well as elements from pending criminal proceedings, were probably in the hands of the national authorities.

22. Having provided some additional details as to the factual aspects of the case, I can now review the majority’s assessment of the lawfulness and necessity/proportionality under Article 8 of the Convention (I refer only to these two elements, since the existence of a legitimate aim is clear – see paragraph 123 of the judgment). Before doing so, I deem it useful to devote a short digression to the nature of the measure complained of.

23. The “police caution”, as provided for under the Italian legislation cited above, clearly falls within:

(a) the general context of initiatives aimed at complying with Article 34 of the Istanbul Convention, which – under the title “Stalking” – obliges Parties to take “the necessary legislative or other measures to ensure that the intentional conduct of repeatedly engaging in threatening conduct directed at another person, causing her or him to fear for her or his safety, is criminalised”;

(b) the more specific context governed by Article 53 of the Istanbul Convention, setting out the obligation to ensure that national legislation provides for “restraining” and/or “protection orders” for victims of all forms of violence covered by the scope of that Convention, and therefore also for stalking.

24. Indeed, when Italy enacted its legislation – as the judgment (see paragraphs 25-26) clarifies, this was as far back as 2009 – the Istanbul Convention had not yet been drafted. But the core of the problems relating to stalking was already well known. Some important studies on this criminal and social phenomenon were conducted at the European Union (EU) level, starting in 2003 with the multidisciplinary so-called “Modena” Group [5] , from whose work some articles of the Istanbul Convention are clearly derived. An official EU study was finished by 2010.

25. By a legislative option which would later be in compliance with Article 55 of the Istanbul Convention (which does not prevent ex parte prosecution of stalking in order for this offence to be criminalised pursuant to Article 34 of that Convention), the respondent State considered it appropriate to create a way out of the criminal-law path for first-time offenders, placing the woman at the centre of attention [6] . For “minor” harassing behaviours (i.e. those that are not apt to be criminalised per se under different domestic provisions) and first-time offenders, prosecution was made conditional. According to general policies, the victim was to be duly informed of her right to obtain prosecution and to file a complaint ( querela ). Should the victim choose not to ask for prosecution, and no other offence requiring an ex officio action was at stake, the victim was offered the alternative of filing a request ( richiesta ) to the police chief, in an administrative-law context, so that an “oral” warning or injunction (“ ammonimento” – in the judgment the expression “police caution” is employed along with the English parlance [7] ) be issued, after hearing the victim (who is the requesting party) and persons entitled to give depositions (see paragraph 26 of the judgment).

26. This warning is but one of a series of preventive measures provided for in the legislation of 2009, which also introduced protective orders, no contact orders, etc., which are in the competence of the courts, rather than the police. In this “panoply” of the Italian toolkit, the “police caution” is at the lowest scale of risk assessment.

27. In view of nature of this measure (the clarification of which justified my digression), I concur with the majority (see paragraph 114 of the judgment) that the Italian “police caution” is to be understood as specifically governed by Article 53 of the Istanbul Convention, setting out the obligation to ensure that national legislation provides for “restraining” and/or “protection orders” for victims of stalking. Although this Article’s title refers literally to “restraining or protection orders”, paragraph 268 of the Explanatory Report makes it clear that the drafters decided to use that definition as an “umbrella category”, explicitly including “injunctions” (in French, “ ordonnances d’injonction ”). [8]

28. Having drawn this inference from the characterisation of the police caution as an injunction under Article 53 of the Istanbul Convention, a number of consequences follow, but I consider that the majority have unfortunately neglected them. I will deal with these aspects separately, as they also represent a sort of fil rouge for my points of dissent from the majority’s approach.

29. In assessing the lawfulness requirement, the majority formulate a reservation, but do not make a finding as to whether the fact that the caution is issued for an indefinite period, with no “right of the individual” to obtain “periodic review or reassessment”, and at any rate with “uncertainty in the statute and ... considerable latitude” afforded to authorities, is in accordance with the law from the point of view of an inclusion of guarantees against arbitrariness (see paragraphs 119-120 of the judgment). Thus, although the majority continue on the basis that the measure was lawful (see paragraph 121), this aspect is then revived from the point of view of proportionality and there, on that ground, a basis for the violation is found (see paragraph 134).

30. Frankly, I do not understand on which Convention principles this finding is based, if any; nor is any precedent indicated in the judgment to support the view that an injunction must necessarily have a limited duration and be subject to a periodic review.

31. Moreover, Article 53 § 2, second indent, of the Istanbul Convention clearly goes against this finding by the majority. The Explanatory Report, at paragraph 271, clarifies that there is no obligation for States to set a period of duration, since it is perfectly acceptable that the measure be in place “until modified”:

“The second indent calls for the order to be issued for a specified or a determined period or until modified or discharged”; “it shall cease to be in effect if changed or discharged by a judge or other competent official”.

32. The above references are also present in paragraph 120 of the judgment but, bafflingly, while it is noted that measures can be valid “until modified”, the text is obscure, as if only the parts referring to measures having a duration were relevant (see the reference to the principle of legal certainty, only relevant to measures having some unclear duration, but not to those valid “until modified”).

33. The judgment then goes on to examine, on the basis of a limited number of domestic case-law references, the consequences drawn by the Italian courts from the “instantaneous” nature of the caution (see paragraph 119), which would not allow for modification or revocation; but other considerations could be made as to whether, in the Italian system, a “discharge” is possible (for example, where unlawfulness is subsequently discovered).

34. In my view, what matters is that there is no language in the case-law (or the Istanbul Convention) preventing an injunction (especially if assisted by the right to a judicial review) from being stable over time.

35. The majority, in assessing lawfulness within the Court’s review of the existing guarantees against arbitrariness, find that the domestic framework, as interpreted in the manner that they believe domestic courts generally do (on foundations, however, which are different from those considered by the Consiglio di Stato – that is, the superior administrative court – in the case at hand), strikes a fair balance as to the perpetrator’s right to be heard before the caution is issued (a right which, according to the majority, could be derogated from only in the event of “urgency” and on a case-to-case basis, which should be “duly indicated in the reasoning in the minutes of the caution and subjected to judicial review” – see paragraph 116 of the judgment; pursuant to this test, the majority then go on to find reasons for a violation under the proportionality assessment – see paragraphs 125-131 of the judgment).

36. Indeed, in the present case the Consiglio di Stato clearly stated that the caution had a “protective and preventive” nature ( funzione cautelare e preventiva – p. 4 of the Consiglio di Stato judgment) and that when an “immediate intervention” is needed, the interested party’s participation can be postponed to the appeals phase, taking place before higher authorities or the courts (pp. 6-7 of the same judgment).

37. In setting out their understanding of domestic law, the majority have decided that they should concern themselves with subsequent case-law (in a limited number of cases) by the same Consiglio di Stato granting wider participation rights to the alleged perpetrators. Thus, in my humble view, the majority construed their own understanding of domestic law, contrary to what the Consiglio di Stato had held in this specific case, and then derived from it the consequence that their understanding was the only Convention-compliant one.

38. The focus of the Court’s judgment should instead have been the principle of law applied in the case at hand, to be verified against the benchmark of the Convention. Additional guarantees, if any, even if leaves aside the temporal dimension of more recent case-law developments and the fact that these do not represent settled case-law, are at most material under Article 53 of the Convention.

39. If one verifies the principle affirmed by the Consiglio di Stato in our case, it too turns out to be totally Convention-compliant.

40. In this connection, the first consideration I would make is, again, related to the context of gender-based violence, which I find to have been neglected by the majority. Hearing the alleged perpetrator as a matter of course before the order is issued can be a naïve move, as it opens the way to an escalation of violence, pressure on witnesses, etc. I see an example of the majority’s distance from the context of stalking and domestic violence in general in the passage in which they state that they “[see] no reason”, given that “in two weeks the police authorities heard the testimonies of seventeen different individuals”, “why ... they could not have heard the applicant as well” (see paragraph 130 of the judgment). On the other hand, the very concept of “injunction” alludes to ex post facto participation by the alleged perpetrator.

41. A second consideration concerns, again, the basis on which – contrary to the concept that the Convention does not recognise a general and absolute right to be “previously” heard in administrative matters – the majority build their finding: I do not read any relevant case-law in paragraphs 112 and 113, nor do the several international legal sources cited therein support such an absolute right. The concept is that the party interested in an administrative set of proceedings must be given an opportunity to put forward arguments, and it is not disputed that this occurred in the present case; however, this can occur “after” the issuing of the caution, with full defence guarantees (in Italy, in two instances of judicial proceedings).

42. A third aspect concerns the use that the majority make of Article 53 § 2, third indent, of the Istanbul Convention. Paragraph 272 of the Explanatory Report is very clear in underlining that:

“The third indent requires Parties to ensure that in certain cases these orders may be issued, where necessary, on an ex parte basis with immediate effect . This means a judge or other competent official would have the authority to issue a temporary [9] restraining or protection order based on the request of one party only . It should be noted that, in accordance with the general obligations provided for under Article 49 (2) of this Convention, the issuing of such orders must not be prejudicial to the rights of the defence and the requirements of a fair and impartial trial, in conformity with Article 6 ECHR. This means notably that the person against whom such an order has been issued should have the right to appeal it before the competent authorities and according to the appropriate internal procedures.” (emphasis added)

43. I do not read in the above language any reference to urgency as such, but rather to cases “where [it is] necessary” to issue injunctions ex parte . Such necessity, in the context of gender violence, can also be the need to protect the victim. As the Istanbul acquis allows, the person indicated as perpetrator will of course have the right to appeal. In the meantime, however, possible risks would have been, to the extent that this is possible, avoided.

44. In contrast, the majority, having mentioned the above Istanbul Convention rule (see paragraph 114), draw conclusions (in paragraph 116) that go far beyond it. They introduce “urgency, duly indicated in the reasoning in the minutes of the caution and subject to ... judicial review” as the only possible derogation from the perpetrator’s right to be “previously” heard. I consider, on the contrary, that in the context of violence against women, urgency as such may be lacking, but nonetheless – according to options that must remain within the States’ margin of appreciation – a “surprise” measure may be necessary. To state the contrary is to underestimate the risks entailed in domestic violence.

45. I will now assume for a moment that “urgency” is – as the majority state – the sole situation in which a derogation from prior “disclosure” to the perpetrator of the stalking allegations is allowed. Should this be so, I do not see why “urgency” cannot, once and for all, be legally recognised at the domestic level as applicable to a category of orders whose characteristics alone, and in abstract, justify the general approach. In other words, if a certain order can be issued if, and only if, stalking conduct is at stake, why can urgency not be ipso iure et facto present?

46. This is what the Consiglio di Stato stated in our case. But sociologists and criminologists, women’s movements, and the Court also say the same: “an immediate response to allegations of domestic violence is required from the authorities” (see Kurt , cited above, § 165, and Talpis v. Italy , no. 41237/14, § 114, 2 March 2017).

47. A specific link exists between the obligation of immediate response and preventive injunction measures, such as the Italian police caution. Thus, Article 50 of the Istanbul Convention is entitled “Immediate response, prevention and protection”, and under Article 53 § 2, first indent, injunctions must be “available for immediate protection”. Paragraph 270 of the Explanatory Report underlines that the above indent “requires these orders to offer immediate protection .... This means that any order should take effect immediately after it has been issued and shall be available without lengthy court proceedings ” (emphasis added). Moreover, as I have mentioned already, paragraph 272 of the same Report is very clear in stating that “The third indent requires Parties to ensure that in certain cases these orders may be issued, where necessary, on an ex parte basis with immediate effect.”

48. In sum, the Istanbul Convention explicitly accepts that even a mere “ ex parte ” request is enough for an injunction (with no investigation) and defence rights can be guaranteed afterwards. Logically this must be even more so in the Italian context, in which a caution is considered as an urgent measure as such, but investigations precede its issuance and defence rights are fully guaranteed, at least by way of subsequent appeals [10] .

49. The majority have clarified well the oral nature of the “caution” and the fact that, in the Italian framework, some reasoning compatible with the urgent nature of the measure is provided in the minutes, a copy of which is given to the aggrieved party (see paragraph 137 of the judgment). Based on their reading, however, the majority find that in the present case the minutes did not provide sufficient reasoning (see paragraph 135 of the judgment).

50. I hold otherwise, and I had an opportunity to state my dissent above when commenting on the facts of the case (so that I need not repeat my points here). I provided a rather different reading, finding that the minutes were sufficiently reasoned in themselves, and the requirements of further specifications that the majority expect in paragraph 135 are indeed excessive. This is even more so once one accepts – as I accept along with the Istanbul Convention – that a full adversarial procedure follows, in which disclosure of the depositions referred to (and, above all, of the request of the victim/witness) allows the alleged perpetrator to understand fully the references which minutes must necessarily make to other documents.

51. In contrast, I agree with the majority that “the domestic courts did not provide relevant and sufficient reasons as to whether the actions imputed to [the applicant]” justified the measure, since the Consiglio di Stato (there was no relevant reasoning on this point in the TAR judgment, as this judgment quashed the measure in first instance) limited itself to “[holding] that the questore had “carefully indicated” all inquiries that would make it possible to corroborate Ms C.S.’s account of the facts (see paragraphs 21 and 139-141 of the judgment). While the domestic case-law has developed in the direction of allowing that the administrative courts, in respect of this kind of measure, can assess the factual basis and not only the legality of the measure (see paragraphs 41 and 142 of the judgment), I consider that this was indeed a procedural flaw, as the reasoning provided by the Consiglio di Stato indeed showed a “purely formal examination” of the facts (see paragraph 141 of the judgment).

52. As I consider that such a lack of independent judicial review with regard to insufficient reasoning could well, taken alone, have led to an assessment that the interference was, overall, proportionate given that many other safeguards were allowed, nonetheless I deem it appropriate to take a firm stand as to the need for a fully-fledged judicial review once I have accepted – unlike the majority – that the alleged perpetrator’s rights of participation can be limited to the judicial-appeal phase of the stalking ‑ prevention caution proceedings. One learns in mathematics that, in a transposition, one can move a term from one side of an equation to the other, but it is necessary to change the sign. Thus, the guarantees I subtracted from the part of the procedure at the questore stage must necessarily be added to the part before the courts.

53. I would point out that the legal option of a police caution, established in the respondent State under section 8 of Decree-Law no. 11/2009 and converted into Law no. 38/2009, was examined by the Court in Talpis v. Italy , cited above, § 51, within the framework of a wider panoply of preventive measures with respect to gender-based violence. Since the domestic authorities in that case had remained passive with respect to an escalation of violence against a woman, violations were found. Later, in Kurt v. Austria , cited above, § 190, the Grand Chamber refined the principles governing the obligation on authorities to provide an immediate response to allegations of domestic violence, after an autonomous, proactive and comprehensive risk assessment.

54. That being said, I consider that the above Opinion has demonstrated that the majority’s judgment in this case represents many backward steps in the protection, under the Convention, of women from gender-based violence in general, and stalking in particular. In addition to the several unnecessary and often counter-productive safeguards that the majority, in a total case-law void, claim to derive from Article 8 of the Convention and seek to impose on States with regard to issuing restraining or protection orders under Article 53 of the Istanbul Convention, and from which I regret having had to distance myself as above, further demonstration of such backward steps can be traced in a total detournement from the Court’s jurisprudential acquis , as found in paragraph 128 of the judgment.

55. In citing paragraph 169 of Kurt , the majority use the concept of “autonomous” and “proactive” (I would also add “comprehensive”) risk assessment, developed in that Grand Chamber judgment, to support the idea that, “after receiving a complaint”, a decision on the measures should first have “afforded [the perpetrator] the opportunity to put forward arguments in support of his positions”. But this is not what the Court – on the basis of long ‑ standing developments in scientific research on gender-based violence – meant when it referred to “autonomous” and “proactive” assessment of risk. As paragraphs 169 and 170 of Kurt clearly show, , the terms “autonomous” and “proactive” refer to the requirement for the authorities not to rely solely on the victim’s perception of the risk, but to complement it by their own assessment, considering the general vulnerability of victims of domestic abuse and how likely they are to withdraw complaints, change statements, deny past violence, and return to live with the perpetrator (see Talpis , cited above, §§ 107-25). Instead, in the majority’s view, an “autonomous” and “proactive” assessment of risk implies, before a restraining or protective order is issued, that the authorities must search out the perpetrator and “afford[ing] him the opportunity to put forward arguments in support of his position”, that is, exactly the opposite aim from that supported by the Grand Chamber in its pursuit of better protection for vulnerable victims who are unable to report in full the violence they sustain.

56. Overprotection of the alleged perpetrator, and wanting at all costs to obtain his “version”, in opposition to that of the alleged victim, will – as experience shows – usually lead to mutual accusations of false statements, allegations of provocative behaviour, or even allegations of reciprocal violence. In some case, there might be grounds for issuing injunctions against both the victim and the perpetrator. This is something that should be avoided, as it can even – by a well-known phenomenon of heterogony of ends - jeopardise the establishment of the truth. I can refer once more to the Explanatory Report to the Istanbul Convention, which at § 276 tells us that “Lastly, since establishing the truth in domestic violence cases may, at times, be difficult, Parties may consider limiting the possibility of the adversary/the perpetrator to thwart attempts of the victim to seek protection by taking the necessary measures to ensure that, in cases of domestic violence, restraining and protection orders as referred to in paragraph 1 may not be issued against the victim and perpetrator mutually. Also, Parties should consider banning from their national legislation any notions of provocative behaviour in relation to the right to apply for restraining or protection orders. Such concepts allow for abusive interpretations that aim at discrediting the victim and should be removed from domestic violence legislation.”

[1] In Opuz v. Turkey , § 132, 9 June 2009, the Court clarified, once and for all, that domestic violence, “which can take various forms ranging from physical to psychological violence or verbal abuse”, is “a general problem which concerns all member States and which does not always surface since it often takes place within personal relationships or closed circuits”. It has clarified also that it is not only women who are affected, but men may also be the victims and, indeed, that “children, too, are often casualties of the phenomenon, whether directly or indirectly.” That being stated, it is all too obvious why I will refer in the text to women as victims: statistically and conceptually, women are the almost exclusive victims of gender ‑ based violence.

[2] The Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) was adopted by the Committee of Ministers and opened for signature in Istanbul on 11 May 2011. The Convention entered into force on 1 August 2014, and recognises gender-based violence against women as a violation of human rights and a form of discrimination. It may be worth clarifying at the outset that, although it is not the Court’s “task to review governments’ compliance with instruments other than the European Convention on Human Rights and its Protocols”, the Istanbul Convention – “which, like the Convention itself, was drawn up within the Council of Europe” – may “provide it with a source of inspiration”, “like other international treaties” (see, for instance, with reference to the European Social Charter, Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97 , ECHR 2002-V). Moreover, the Convention cannot be interpreted in a vacuum and must be construed in harmony with the general principles of international law. I would point out, in this regard, that the Court has referred to the Istanbul Convention as a source of inspiration, for example, in Kurt v. Austria , 62903/15 [GC], §§ 167, 172, 175, 180-1, 197, 15 June 2021.

[3] I consider that respect for the dignity of the alleged victim imposes an obligation on me to use her name, by way of her initials (Ms C.S.). She was the requesting party in the caution administrative proceedings and was thus also a party (albeit in absentia ), along with the Ministry of the Interior, to the subsequent domestic judicial proceedings. Literature on the naming of women has become in recent decades an integral part of historical and legal research on discrimination.

[4] Unfortunately the majority judgment considers that “the vast majority of the witnesses had not confirmed the applicant’s wife’s version of the facts”, that is, the “hypothesis of the facts as alleged by her” (see paragraph 136 of the judgment). As I will reiterate, in the majority’s view “fourteen statements did not confirm the applicant’s wife version of the facts”; of the other three witnesses, one was mentioned as being “a friend of the applicant’s wife”. Leaving aside the fact that, in the context of violence against women, it is often the situation that only “friends know”, I wish merely to emphasise that Ms C.S.’s account has not been regarded as that of a witness (the main one, in my view), but as a “version”, necessarily needing confirmation. Victims count, and as I mention in the main body of the opinion they should be counted as witnesses. Indeed, it is a widely recognised standard that in domestic-violence cases the intrinsic credibility of the victim can suffice, once the defence rights have been guaranteed. I will include in my conclusions (Part IV) some considerations on the dangers of reducing gender-based violence to mutual accusations and opposed “versions” of the facts.

[5] The first report was: Modena Group on Stalking, Female Victims of Stalking: Recognition and Intervention Models: a European Study , FrancoAngeli, 2005; many other reports followed, supported by the European Union.

[6] It might be interesting here to note that this choice is in full harmony with the fourth indent of Article 53 § 2 of the Istanbul Convention. Paragraph 273 of the Explanatory Report to the Convention states:

“The fourth indent seeks to ensure the possibility for victims to obtain a restraining or protection order whether or not they choose to set in motion any other legal proceedings. For example, where such orders exist, research has shown that many victims who want to apply for a restraining or protection order may not be prepared to press criminal charges (that would lead to a criminal investigation and possibly criminal proceedings) against the perpetrator” (emphasis added).

[7] The Italian ammonimento is not technically a “caution”, in that - unlike in some common ‑ law jurisdictions - it does not suppose that the perpetrator accepts the charges; the accused may, on the contrary, appeal before administrative justice. The Italian ammonimento , of an administrative nature, was subsequently extended by Law no. 119 of 2013 to cases of domestic violence stricto sensu (beyond stalking); and by Law no. 71 of 2017 to cyberbullying, when the author of the facts is a minor. I will deal in my Opinion with the fact that as a rule it does not have a fixed duration; but it does for the minor author of cyberbullying (in this case, it ends when the juvenile turns 18). Italian legislation offers many other examples of warnings by authorities, whose nature and discipline has almost nothing in common with the case being dealt with in the present judgment.

[8] Paragraph 268 of the Explanatory Report, dealing with Article 53, reads as follows:

“Its purpose is to offer a fast legal remedy to protect persons at risk of any of the forms of violence covered by the scope of this Convention by prohibiting, restraining or prescribing a certain behaviour by the perpetrator. This wide range of measures covered by such orders means that they exist under various names such as restraining order, barring order, eviction order, protection order or injunction . Despite these differences, they serve the same purpose: preventing the commission of violence and protect the victim. For the purpose of this Convention, the drafters decided to use the term restraining or protection order as an umbrella category ” (emphasis added).

It is perhaps interesting to note that the subsequent paragraph 269 deals with the possibility that restraining or protection orders be governed by civil or, as in the Italian system, administrative law. It reads as follows:

“The drafters decided to leave to the Parties to choose the appropriate legal regime under which such orders may be issued. Whether restraining or protection orders are based in civil law, criminal procedure law or administrative law or in all of them will depend on the national legal system and above all on the necessity for effective protection of victims” (emphasis added).

[9] In paragraph 114, the majority stress too much, in my view, the adjective “temporary” in this paragraph of the Explanatory Report, which they use, indirectly, to complement their arguments on the need for the duration to be predetermined or subject to review. To contest their assumption, it is worth noting that: - the relevant indent of Article 53 § 2 mentions the “ ex parte ” measure with immediate effect, with no inclusion of the concept of “temporariness”, which is only contained in the Explanatory Report; - the Explanatory Report, in its French version, uses the different adjective “ provisoire ”; - the scope of the sentence containing the “temporariness” requirement is thus closely connected with the “ ex parte ” basis of the provisional order. If, as in the Italian system, the injunction is always issued after investigations, the temporariness requirement may not apply. What is important, in this passage of the Explanatory Report, is that the right of defence is ensured by way of a subsequent appeal, and not by means of previous participation, as required, on the contrary, by the majority.

[10] The majority mention domestic case-law developments in this area, but as they are far from stable, I do not take them into consideration here.