CASE OF RAIMONDO v. ITALY
Violation of P1-1;Violation of P4-2;No violation of P1-1;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
C. Russo
7. Mr Giuseppe Raimondo, a building entrepreneur, lived in Davoli (Catanzaro) until his death on 11 July 1992. Criminal proceedings were brought against him as he was suspected of belonging to a mafia-type organisation operating in the Soverato region. At the same time various preventive measures were taken concerning him. 8. On 24 July 1984 the Catanzaro Public Prosecutor issued a warrant for the arrest of seventeen persons including the applicant. After initially evading arrest under this warrant, the applicant gave himself up to the authorities on 7 November 1984 and was immediately remanded in custody. 9. The investigation was closed on 24 July 1985 and Mr Raimondo was committed for trial in the Catanzaro District Court with fourteen co-defendants. His detention on remand was replaced by house arrest (arresti domiciliari). 10. On 8 October 1985, at the first hearing, the District Court ordered the joinder of the case with two others and directed that certain documents be included in the file. It then adjourned the proceedings to 16 January 1986. On 30 January 1986 the District Court acquitted Mr Raimondo on the ground of insufficient evidence (assoluzione per insufficienza di prove) and revoked the order placing him under house arrest. 11. Giving judgment on 16 January 1987 on the appeals of the public prosecutor and Mr Raimondo, the Catanzaro Court of Appeal acquitted the latter on the ground that the material facts of the offence had not been established (perchè il fatto non sussiste). No appeal was filed in the Court of Cassation. 12. On 16 January 1985 the Catanzaro Public Prosecutor applied to the District Court for an order placing Mr Raimondo under special police supervision and for the preventive seizure of a number of assets with a view to their possible confiscation (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 - see paragraphs 16-18 below). He based his application on a report by the Soverato carabinieri dated 27 December 1984. 13. On 13 May 1985 the District Court ordered the seizure of sixteen items of real property (ten plots of land and six buildings) and of six vehicles, all of which appeared to be at the applicant’s disposal. The measure was entered in the relevant public registers on 15 May 1985. On 16 October the District Court revoked the seizure of certain property belonging to third parties; on the other hand, it ordered the confiscation of some of the buildings seized of which the applicant and his wife were the owners and four vehicles, on the ground that it had not been proved that the assets in question had been "lawfully acquired". The confiscation was recorded in the register on 9 November 1985. By the same decision Mr Raimondo was placed under special police supervision, which however did not become effective until 30 January 1986, the day on which he was acquitted by the District Court (see paragraph 10 above); he was also required to lodge a security of 2,000,000 lire as a guarantee to ensure that he complied with the constraints attaching to this measure, namely a prohibition on leaving his home without informing the police; an obligation to report to the police on the days indicated to that effect; an obligation to return to his house by 9 p.m. and not to leave it before 7 a.m. unless he had valid reasons for doing so and had first informed the relevant authorities of his intention. 14. On an appeal by the applicant, the Catanzaro Court of Appeal gave judgment at a private hearing on 4 July 1986. It annulled the special supervision measure and ordered the restitution of the security and the property seized and confiscated. Its decision (decreto) referred to the "disconcertingly casual way in which the contested preventive measures concerning the person and property of Mr Raimondo had been adopted thereby effectively decreeing his civil and economic death". The decision was filed with the registry on 2 December 1986 and signed by the relevant official of the prosecuting authority on 10 December. Again on 2 December the Court of Appeal registry notified it to the competent police authorities (questura) who, on 5 December, advised the local carabinieri of the decision. The latter informed the applicant on 20 December. The decision became final on 31 December 1986. 15. The revocation of the seizure of the real property and of the confiscation of the vehicles was entered in the relevant registers on 2 February (real property), 10 February (two cars and a van) and 10 July 1987 (a lorry). The security was returned to the applicant on 24 April 1987. As regards the real property that had been confiscated, the applications for the entry in the register of the revocation of the measure are dated 9 August 1991. 16. Act no. 1423 of 27 December 1956 ("the 1956 Act") provides for various preventive measures in respect of "persons presenting a danger for security and public morality". The relevant provisions are summarised in the Guzzardi v. Italy judgment of 6 November 1980 (Series A no. 39, pp. 17-19, §§ 46-49): "46. Under section 1, the Act applies to, amongst others, ... individuals who, by reason of their behaviour and style of life (tenore di vita), must be considered as habitually living, even in part, on the proceeds of crime or on the rewards of complicity therein (con il favoreggiamento), or whose outward conduct gives good reason to believe that they have criminal tendencies (che, per le manifestazioni cui abbiano dato luogo, diano fondato motivo di ritenere che siano proclivi a delinquere). The Chief of Police [(questore)] may send such persons a warning (diffida) ... ... 47. ... 48. ... [such a person] may, under section 3, be placed under special police supervision (sorveglianza speciale della pubblica sicurezza); if need be, this may be combined either with a prohibition on residence in one or more given districts or provinces or, in the case of a particularly dangerous person (particolare pericolosità), with an order for compulsory residence in a specified district (obbligo del soggiorno in un determinato comune). Only the District Court of the chief town of the province has power to order these measures; it will do so on the basis of a reasoned application by the [questore] to its president (section 4, first paragraph). The District Court must give a reasoned decision (provvedimento) in chambers within thirty days. It will first hear the Public Prosecutor’s department and the person concerned, the latter being entitled to submit written pleadings and to be assisted by a lawyer (section 4, second paragraph). The prosecuting authorities and the person concerned may, within ten days, lodge an appeal which does not have suspensive effect; the Court of Appeal has to give a reasoned decision (decreto) in chambers within thirty days (section 4, fifth and sixth paragraphs). That decision may in turn and on the same conditions be the subject of a further appeal to the Court of Cassation, which must give its ruling in chambers within thirty days (section 4, seventh paragraph). 49. When adopting one of the measures listed in section 3, the District Court will specify for how long it is to remain in force - not less than one and not more than five years (section 4, fourth paragraph) - and will give directives with which the person in question must comply (section 5, first paragraph). ..." 17. Act no. 575 of 31 May 1965 ("the 1965 Act") supplements the 1956 Act by adding clauses directed against the Mafia (disposizioni contro la mafia). Section 1 states that it is applicable to persons - such as Mr Raimondo - against whom there is evidence showing that they belong to "mafia-type" groups (indiziati di appartenere ad associazioni mafiose). 18. The above legislation was strengthened by Act no. 646 of 13 September 1982 ("the 1982 Act") which inserted, inter alia, a section 2 ter in the 1965 Act. It makes provision for various measures to be used in the course of proceedings relating to the application of the preventive measures available under the 1956 Act in respect of a person suspected of belonging to such an 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 sufficientcircumstantial 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. Where the inquiries are complex, this measure may also be taken at a later date, but not more than one year after the date of the seizure. 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." 19. In its report (paragraph 43), the Commission sets out a summary of the case-law in this area: " ... The existence of preventive measures is not in itself contrary to the Italian Constitution. The Constitutional Court has ruled that the basis for these measures is the need to guarantee the orderly and peaceful course of social relations, not only through a body of legislation penalising unlawful acts, but also through provisions intended to prevent the commission of such acts (Constitutional Court, judgment no. 27 of 1959 and judgment no. 23 of 1964). Because of their particular object, preventive measures do not relate to the commission of a specific unlawful act but to a pattern of behaviour defined by law as conduct indicating the existence of danger to society (Constitutional Court, judgment no. 23 of 1964). Consequently, in the Italian legal system, there is a fundamental difference between criminal penalties and preventive measures. The former constitute the response to an unlawful act and the consequences of that act; the latter are a means of preventing the commission of such an act. In other words, a criminal penalty relates to an offence already committed, whereas a preventive measure is intended to reduce the risk of future offences (see, mutatis mutandis, Constitutional Court, judgment no. 53 of 1968, concerning security measures). ... Because criminal penalties and preventive measures are essentially different, not all the constitutional principles which should underpin the former necessarily apply to the latter. For example, the presumption of innocence enunciated in Article 27 of the Constitution does not concern preventive measures, which are not based on the criminal liability or guilt of the person concerned (Constitutional Court, judgment no. 23 of 1964). Similarly, such measures do not fall within the scope of Article 25 para. 2 of the Constitution, which prohibits the retroactive application of criminal provisions. The violation of this principle has been alleged on a number of occasions in the Court of Cassation with regard to confiscation orders under section 2 ter of the 1965 Act. The Court of Cassation has ruled, firstly, that the above principle is not applicable to preventive measures (see, for example, Court of Cassation, Piraino judgment of 30 January 1985). Secondly, the Court of Cassation has pointed out that the impugned provision is not in fact retroactive, as it relates to the property in the possession of the person concerned at the time when confiscation is ordered (Court of Cassation, Oliveri judgment of 12 May 1986) and to the unlawful use of that property after its entry into force (Court of Cassation, Pipitone judgment of 4 January 1985). In spite of these limitations, preventive measures remain open to thorough scrutiny of their compatibility with the Constitution. As far back as 1956 the Constitutional Court ruled that in no case could the right to liberty be restricted except where such restriction was prescribed by law, where lawful proceedings had been instituted to that end and where the reasons therefor had been set out in a judicial decision (Constitutional Court, judgment no. 11 of 1956). It subsequently ruled that preventive measures could not be adopted on the basis of mere suspicion and are justified only when based on the objective establishment and assessment of facts which reveal the behaviour and lifestyle of the person concerned (Constitutional Court, judgment no. 23 of 1964). More recently it confirmed that the constitutionality of preventive measures still depends on respect of the rule of law and the possibility of applying to the courts for a remedy. Furthermore, the above two conditions are closely linked. Thus it is not enough for the law to indicate vague criteria for the assessment of danger; it must set them forth with sufficient precision to make the right of access to a court and adversarial proceedings a meaningful one (Constitutional Court, judgment no. 177 of 1980). The case-law of the Court of Cassation is in this respect entirely consistent with that of the Constitutional Court; it affirms quite clearly that proceedings for the application of preventive measures must be adversarial and conducted with respect for the rights of the defence, any violation of those rights entailing their nullity (see, for example, Court of Cassation, judgment no. 1255 of 29 June 1984 in the Santoro case). The Court of Cassation has dismissed a number of complaints alleging the unconstitutionality of the seizure and confiscation measures provided for in section 2 ter of the 1965 Act. In particular, it has ruled that the presumption concerning the unlawful origin of the property of persons suspected of belonging to organisations of the mafia type is not incompatible with Article 24 of the Constitution, which guarantees the rights of the defence, since confiscation can only take place when there is sufficient circumstantial evidence concerning the unlawful origin of the property in question and in the absence of a rebuttal (Court of Cassation, previously cited Pipitone judgment). ... With regard to the compatibility of seizure and confiscation measures with the right to free exercise of private economic activities and the right to peaceful enjoyment of private property (Articles 41 and 42 of the Constitution), the Court of Cassation has ruled that these rights are not absolute and may be limited in accordance with the general interest. This applies in connection with possessions of unlawful origin or their use (Court of Cassation, previously cited Oliveri and Pipitone judgments). ..." 20. In its opinion no. 1489/86 of 18 November 1986 the Consiglio di Stato stated that "although confiscation by definition enables the State to acquire the item of property in question ..., it does not in itself have the effect of transferring ownership to the public authorities ...". It will only have such effect if in addition the decision ordering it is irrevocable (Palermo District Court, order of 19 April 1989).