Published on 8 January 2024

FIRST SECTION

Application no. 54332/19 Michele ASCIONE and Others against Italy and 5 other applications (see list appended) communicated on 6 December 2023

SUBJECT MATTER OF THE CASES

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 ), on the basis of Article 11 of Law no. 146/2006.

As regards application no. 54332/19, the applicants are natural persons who were convicted – following a plea-bargain – for a series of crimes, including membership of a criminal association, receiving stolen goods and unauthorised trade of gold, committed with the aggravating circumstance of their transnational character (pursuant, respectively, to Articles 416 and 648 of the Italian Criminal Code and Articles 1 and 3 of Law no. 7/2000).

In addition to approving the plea-bargain, the national courts ordered, on the basis of Article 11 of Law 146/2006, the confiscation by equivalent means of sums equal to the value of the unlawfully traded gold. The confiscation was applied jointly to all applicants, on the basis of the principle of joint liability. It became final with the decision of the Court of Cassation of 12 April 2019.

The applicants complain under Article 7 of the Convention of the lack of a foreseeable legal basis for the confiscation, in particular in regard to (i) its application following a plea-bargain and (ii) the principle of joint liability. Under Article 1 of Protocol No. 1 to the Convention, they complain of the lack of a foreseeable legal basis for the same reasons, as well as of the disproportionate character of the measure, which (i) concerned sums equal to the value of the traded gold and not only the profits of such trade and (ii) was imposed jointly on all convicted persons on the basis of the principle of joint liability.

As regards the remaining applications, the applicants are companies – at the time ran by the above-mentioned convicted persons – which claim to be the owners of the confiscated sums. In their view, the national courts acted in an unreasoned and arbitrary manner, when holding that the companies acted as fictitious owners and the sums belonged in reality to the convicted persons. The applicant companies did not participate in the domestic proceedings.

They complain under Article 7 of the Convention of the imposition of a penalty for a crime committed by others; under Article 1 of Protocol No. 1 to the Convention that the confiscation was disproportionate given the amounts confiscated and the lack of procedural guarantees; and under Article 13 of the Convention of the lack of an effective remedy.

QUESTIONS TO THE PARTIES

QUESTIONS FOR APPLICATION NO. 54332/19

1. Taking into account the characterisation of the contested measure by the national courts, can the confiscation of the proceeds of crime by equivalent means provided by Article 11 of Law no. 146/2006 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, was the impugned confiscation based on a sufficiently foreseeable law, as interpreted by the domestic courts, with particular regard to:

(i) the application of the confiscation pursuant to Article 11 of Law no. 146/2006 following a plea-bargain; and

(ii) the application of the principle of joint liability?

2. 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?

If so, was the confiscation proportionate to the aim pursued, as required by Article 1 of Protocol No. 1 to the Convention (see G.I.E.M. S.R.L. and Others , cited above, § 301), with particular regard to:

(i) the nature and severity of the crimes committed by the applicants;

(ii) the confiscation of sums equal to the value of the unlawfully traded gold, but exceeding net profits derived from such trade;

(iii) the principle of joint liability and the lack of an individualised assessment of the proportionality of the confiscation, having regard to the profits actually received by each applicant (see, mutatis mutandis , Rummi v. Estonia , no. 63362/09, § 108, 15 January 2015)?

QUESTIONS FOR APPLICATIONS NOS. 55369/19, 55829/19, 55927/19, 56133/19 AND 56139/19

1. Taking into account the characterisation of the contested measure by the national courts, can the confiscation of the proceeds of crime by equivalent means provided by Article 11 of Law no. 146/2006 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 applicant companies 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)?

2. Was the confiscation of the applicant companies’ assets in accordance with the conditions provided for by law, as required by Article 1 of Protocol No. 1 to the Convention?

If so, was the confiscation proportionate to the aim pursued, as required by Article 1 of Protocol No. 1 to the Convention (see G.I.E.M. S.R.L. and Others , cited above, § 301), with particular regard to:

(i) the confiscation of sums equal to the value of the unlawfully traded gold, but exceeding net profits derived from such trade;

(ii) the impossibility for the applicant companies to participate in the criminal proceedings leading to the confiscation?

3. Taking into account that the applicant companies could ask for the restitution of assets before the judge of the execution ( incidente di esecuzione ), did they have an effective domestic remedy for their complaints under Articles 7 and 1 of Protocol No. 1, as required by Article 13 of the Convention?

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

54332/19

Ascione and Others

v. Italy

12/10/2019

Michele ASCIONE 1948 Roma Italian Mariano AMODEO 1986 Napoli Italian Pietro ASCIONE 1976 Como Italian Flavio BIANCHI 1947 Capiago Intimiano Italian Loris Franco BIANCHI 1942 Arezzo Italian Riccardo BIANCHI 1986 Como Italian Stefano BIANCHI 1963 Arezzo Italian Mauro CAMPRIANI 1954 Subbiano Italian Francesco D’AVINO 1967 Torre del Greco Italian Ernesto D’ISTRIA 1948 Boscoreale Italian Alessio FRASCONI 1972 Castiglion Fibocchi Italian Roberto MARIOTTI 1960 Castiglion Fiorentino Italian Federico PESCE 1975 Napoli Italian Raffaele PESCE 1972 Napoli Italian Alessandro RICCARELLI 1966 Arezzo Italian

Andrea SACCUCCI

2.

55369/19

MGS Metal S.r.l.

v. Italy

12/10/2019

MGS METAL S.R.L. 2000 Torre del Greco Italian

Andrea SACCUCCI

3.

55829/19

Kronos S.r.l.

in liquidazione

v. Italy

12/10/2019

KRONOS S.R.L.

IN LIQUIDAZIONE 1994 Arezzo Italian

Andrea SACCUCCI

4.

55927/19

TAMI Immobiliare S.r.l.

v. Italy

12/10/2019

TAMI IMMOBILIARE S.R.L. 2012 Arezzo Italian

Andrea SACCUCCI

5.

56133/19

ME.PR.INT S.r.l.

v. Italy

12/10/2019

ME.PR.INT S.R.L

IN LIQUIDAZIONE Torre del Greco Italian

Andrea SACCUCCI

6.

56139/19

Exstro S.r.l.

in liquidazione

v. Italy

12/10/2019

EXSTRO S.R.L.

IN LIQUIDAZIONE Arezzo Italian

Andrea SACCUCCI