ARCURI AND OTHERS v. ITALY
Inadmissible
Christos Rozakis
The applicants, Rocco Arcuri, Anna Maria Mussurici, Mirko Arcuri and Greta Guarino, are Italian nationals, who were born in 1933, 1951, 1974 and 1970 respectively. They live in Turin. The third applicant is the son of the first two applicants, who are a married couple. The fourth applicant is the daughter of the second applicant. The applicants were represented before the Court by Mr Barone, a lawyer practising in Milan. As the first applicant was suspected of being a member of a criminal organisation involved in drug trafficking, the Turin public prosecutor’s office instituted proceedings against him on 23 October 1995 for the application of preventive measures available under Act no. 1423 of 27 December 1956 and Act no. 575 of 31 May 1965, as amended by Act no. 646 of 13 September 1982. The public prosecutor’s office also requested the seizure of a number of assets belonging to the first applicant and/or the other applicants. In an order of 31 October 1995 the President of the division of the Turin District Court specialised in preventive measures ordered the seizure of the assets in question, which included eight vehicles, several plots of land and flats, two private company shares and numerous documents. He noted that the inspections carried out by the national anti-mafia brigade (DIA) showed a discrepancy between the first applicant’s financial means and his legal business activities and declared income. During the proceedings before the special division the first two applicants and numerous witnesses were questioned. Accountants’ and financial experts’ reports were drawn up and transcripts of certain tapped telephone conversations were filed with the court registry. The court also ordered the production of certain documents relating to other judicial proceedings brought against the first applicant and/or other persons suspected of belonging to mafia-type organisations. All the applicants, represented by a lawyer of their choice, participated in the proceedings for the application of preventive measures. In an order of 13 June 1997 that was deposited with the registry on 24 July 1997 the division of the Turin Court specialised in preventive measures decided to place the first applicant under police supervision, combined with an order for compulsory residence in the district of Turin for four years. The special division also ordered confiscation, pursuant to section 2(3), third paragraph, of Act no. 575 of 1965, of the applicants’ previously seized assets. The judges of the special division pointed out first of all that between 1959 and 1980 the first applicant had been convicted on a number of occasions of fraud, incitement to prostitution, assault, duress, false imprisonment, gross indecency in a public place, uttering worthless cheques, illegal possession of firearms, fraudulent bankruptcy and criminal association. It also emerged from a number of documents found at the first applicant’s house that he was in close contact with persons involved in organised crime. Furthermore, proceedings for usury and mafia-type criminal association were pending against the first applicant. Admittedly, in the criminal proceedings for criminal association the applicant’s pre-trial detention had been revoked; however, that fact did not prevent the judges from considering it “reasonably probable” that he was involved in a criminal association, that he lent money at excessive interest rates and that he had made death threats in the event of non-payment. Continued detention of an accused was justified where there was a “very high probability” that they were guilty, whereas the application of preventive measures could be based on a lesser degree of probability. With regard to the Arcuri family’s financial situation, the special division of the court observed that it was difficult to reconstruct the history of the various economic activities carried out by the first applicant because he had not kept official accounts of all his operations. In any event, it was clear from the evidence produced that at least part of the first applicant’s considerable fortune had been unlawfully acquired, since it was the proceeds from his offences of fraudulent bankruptcy, uttering worthless cheques, illegal trading in diamonds, and usury. Moreover, the applicants had not supplied proof that the seized assets had been lawfully acquired. Admittedly, part of the assets officially belonged to the second, third and fourth applicants; however, the special division found that the Acuri family’s entire fortune had been created by the first applicant, who, being the subject of numerous judicial proceedings, had subsequently considered it preferable to transfer certain assets to the couple’s two children for no consideration and to make his wife a partner in his business activities. The applicants appealed against the order of 13 June 1997. In an order of 2 February 1998 the Turin Court of Appeal upheld the district court’s decision. It observed, inter alia, that the special division of the court had found that the first applicant was a danger to society on the basis of statements made in other judicial proceedings by certain pentiti of the Mafia, which had been corroborated by substantial evidence and showed that the first applicant had moved in criminal circles at least until the beginning of the 1990s. The transcription of the tapped telephone conversations showed, furthermore, that the first applicant had severely threatened his debtors. With regard to his submission that his financial means could be explained exclusively by his legal activities as a businessman, the Court of Appeal held that the Acuri family’s fortune had been amassed from the proceeds of criminal activities. Furthermore, the lack of accurate documentation made it impossible to assess the real profits which the first applicant had made from certain business transactions. There was also evidence showing that the Acuri family’s legal activities had been started up, developed and maintained with the proceeds of criminal offences committed by the first applicant. The Court of Appeal observed lastly that, according to case-law of the Court of Cassation, assets which were the subject of a preventive measure concerning property should not formally belong to the person deemed to be a danger to society, since the latter could simply use them de facto as if he were the owner. In the instant case the first applicant had not maintained that the transfer of certain assets to the third and fourth applicants had made it impossible for him to use them as he wished. With regard to the second applicant, even if it was true that she had been involved in a number of business activities, the first applicant had nonetheless maintained a primordial role in the management and organisation of those activities. The applicants lodged an appeal on points of law. In a judgment of 3 July 1998 that was deposited with the registry on 12 September 1998 the Court of Cassation dismissed the applicants’ appeal, holding that the Turin Court of Appeal had given logical and proper reasons for all the points in dispute between the parties. In accordance with section 2(3) of Act no. 575 of 31 May 1965, during the proceedings for the application of preventive measures against a person suspected of belonging to a mafia-type organisation, “the District Court may issue a reasoned decision, even of its own motion, ordering the seizure of property at the direct or indirect disposal of the person against whom the proceedings have been instituted, when there is sufficient circumstantial evidence, such as a considerable discrepancy between his lifestyle and his apparent or declared income, to show that the property concerned forms the proceeds from unlawful activities or their reinvestment. Together with the implementation of the preventive measure the District Court shall order the confiscation of any of the goods seized in respect of which it has not been shown that they were lawfully acquired. ... The District Court shall revoke the seizure order when the application for preventive measures is dismissed or when it has been shown that the property in question was lawfully acquired.”