Published on 8 January 2024

FIRST SECTION

Applications nos. 61799/15 and 62690/15 Ornella MACAGNINO against Italy and Agostino MARZO against Italy lodged on 7 December 2015 and 17 December 2015 respectively communicated on 6 December 2023

SUBJECT MATTER OF THE CASE

The applications concern the confiscation of the applicants’ assets, ordered by the competent domestic courts pursuant to Article 24 of Legislative Decree no. 159 of 6 September 2011 ( Codice delle leggi antimafia e delle misure di prevenzione, Decree no. 159/2011).

The second applicant, A.M., has been declared socially dangerous in accordance with Article 1 § 1 (a) of Decree no. 159/2011 ( pericolosità generica or “ordinary dangerousness”), as between 1983 and 1999 he had committed several crimes (such as thefts, handling stolen goods, illegal possession of arms). The domestic courts considered that his assets were disproportionate to his lawful income and that he had failed to demonstrate their lawful origin. The first applicant, O.M., is the second applicant’s wife. The domestic courts considered that her assets were formally owned by her, but actually belonged to A.M. They further held that such assets were disproportionate to the applicants’ lawful incomes and that they had failed to demonstrate their lawful origin.

The applicants challenged the measure before the competent domestic courts, arguing, inter alia , that some of the confiscated assets had been acquired before and after the period in which the second applicant had been considered socially dangerous, and by resorting to additional lawful income that had not been declared to the Tax Authority. On 18 August 2015 the Court of Cassation replied that “the vast majority” of the confiscated assets had been purchased in the period of social dangerousness and that, in accordance with its well-established case law, the measure at stake had to be applied in respect of all unlawfully acquired assets, including those deriving from tax evasion.

The applicants allege a violation of Article 1 of Protocol No. 1 to the Convention. They submit that the impugned measure was not adopted in accordance with the conditions provided for by law, as the domestic courts confiscated assets that had been acquired before and after the period during which the second applicant had been considered socially dangerous, in disregard of the criteria which were well established in the case-law of the Court of Cassation (judgment no. 4880 of 26 June 2014, published on 2 February 2015). They further argue that the measure was not proportionate, as in their view the domestic courts (i) did not reasonably show that all the confiscated assets had been unlawfully acquired and (ii) unjustifiably dismissed their claim that they had an additional lawful income which had not been declared to the Tax Authority.

Relying on Article 8 of the Convention, the applicants complain of the allegedly disproportionate interference with their right to a family life and to home, as the house where they had established their domicile was confiscated.

The applicants further allege, under Article 6 of the Convention, a violation of the principle of equality of arms, arguing, inter alia , that: (i) their request to appoint an expert for assessing the value of the assets was dismissed; (ii) it was very difficult for them to prove the circumstances on which they relied due to the excessively long period over which their incomes and expenses were examined; and (iii) domestic courts did not duly take into account evidence provided by them.

QUESTIONS TO THE PARTIES

1. Was the interference with the applicants’ peaceful enjoyment of possessions in accordance with the requirements of Article 1 of Protocol No. 1 to the Convention?

Was the measure in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? Did the applicable law and the relevant case-law provide for guarantees against abuse and were they sufficiently precise and foreseeable as regards the conditions for confiscation, in particular by delimiting, from a temporal point of view, the assets that could be confiscated (see, mutatis mutandis , Dimitrovi v. Bulgaria , no. 12655/09, § 45 et seq., 3 March 2015)? If so, were the domestic courts’ decisions in accordance with the law?

Was the interference necessary and proportionate, for the purposes of Article 1 of Protocol No. 1? Was the confiscation of assets acquired before and after the period during which the applicant had been considered socially dangerous proportionate to the aim pursued?

Did the applicants suffer an excessive burden on account of the reversal of the burden of proof to their detriment? The parties are requested to take into account, inter alia :

(a) whether the nature and severity of the crimes on which the declaration of social dangerousness of G.R. has been grounded justified the presumption that the applicants’ assets were proceeds of unlawful activities (compare Bongiorno and Others v. Italy , no. 4514/07, § 45, 5 January 2010, Gogitidze and Others v. Georgia , no. 36862/05, § 107, 12 May 2015, and Telbis and Viziteu v. Romania , no. 47911/15, §§ 74 and 77, 26 June 2018);

(b) whether national authorities showed in a reasonable manner, by providing at least some particulars in the light of the available evidence, that each one of the confiscated assets had been unlawfully obtained (see, mutatis mutandis , Todorov and Others v. Bulgaria , nos. 50705/11 and 6 others, §§ 212 and 215, 13 July 2021);

(c) whether, with regard to the assets that had been acquired after the period during which the first applicant had been considered socially dangerous, the domestic authorities justified in a reasoned manner and on the basis of an objective assessment of facts and evidence that those assets had been presumably purchased with the proceeds of crimes (see Todorov and Others , cited above, §§ 245-249);

(d) whether the applicants faced difficulties meeting their burden of proof due to the lengthy period over which their income and expenses were examined, and the fact that they were requested to prove the lawful origin of their assets more than 20 years after those assets had been purchased (see Todorov and Others , cited above, §§ 205 and 210, Dimitrovi , cited above, § 46, and, mutatis mutandis , Camelia Bogdan v. Romania , no. 36889/18, § 38, 20 October 2020);

(e) 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 (see Telbis and Viziteu , cited above § 78).

2. Did the applicant have a fair trial, as required by Article 6 § 1 of the Convention? In particular, were they afforded a reasonable opportunity to present their case under conditions that did not place them at a disadvantage vis-à-vis their opponent?

3. Has there been an interference with the applicants’ right to respect for home guaranteed by Article 8 of the Convention, on account of the fact that the house which constituted their domicile was confiscated? If so, was the interference in accordance with the law, necessary in a democratic society and proportionate to the aim pursued (see Aboufadda v. France (dec.), no. 28457/10, § 43, 4 November 2014, and, mutatis mutandis , Ivanova and Cherkezov v. Bulgaria , no. 46577/15, §§ 53-56, 21 April 2016)?