CASE OF VITO SANTE SANTORO v. ITALY
Violation of P4-2;Violation of P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Georg Ress
9. The applicant was born in 1957 and lives in Ostuni (province of Brindisi). 10. In an order of 24 March 1994, filed with the registry on 30 March 1994, the Brindisi District Court imposed a preventive measure on the applicant, who was placed under special police supervision for one year. 11. The Brindisi District Court found that numerous criminal complaints had been made against the applicant. In particular, it found that in 1991 and 1992 a series of criminal complaints had been lodged alleging that he had received stolen goods under cover of his vehicle dismantling and spare parts business. On 13 May 1992 a preventive measure in the form of a warning (avviso sociale) was imposed on the applicant for one year. On 13 June 1992 a criminal complaint was lodged against him for aiding and abetting theft and trading in stolen goods; he was acquitted by a judgment of 2 July 1993. On 5 May 1993 the applicant was arrested with two others in connection with another complaint for receiving stolen goods which had been lodged against him. In the light of the foregoing, the District Court considered that there were reasonable grounds for believing that, in spite of his clean record, the applicant was a habitual offender and thus “socially dangerous”, within the meaning of section 1 of Law no. 1423/56 of 27 December 1956. It refused, however, to make a compulsory residence order (obbligo di soggiorno) against him. 12. The order imposing the preventive measure was forwarded for enforcement to the Brindisi prefect on 7 April 1994 and served on the applicant on 3 May 1994. 13. The applicant appealed, but his appeal was dismissed by the Lecce Court of Appeal on 29 July 1994. The order became final on 24 September 1994 and was subsequently served on the Ostuni municipality on 27 September 1994. 14. On 25 July 1995 the Ostuni police drafted, in the applicant’s presence, a document setting out the obligations imposed on him (verbale di sottoposizione agli obblighi). 15. The applicant was required: (a) to look for a suitable job within two months from the date of service of the order; (b) not to change his place of residence; (c) not to leave his home without informing the authorities responsible for supervising him; (d) to live an honest life and not to arouse suspicion; (e) not to associate with persons who had a criminal record or who were subject to preventive or security measures; (f) not to return home later than 8 p.m. in summer and 6 p.m. in winter or to leave home before 7 a.m., unless due cause could be shown and in all cases only after informing the authorities responsible for supervising him; (g) not to keep or carry weapons; (h) not to go to bars or attend public meetings; (i) to report to the relevant police station on Sundays between 9 a.m. and 12 noon; (j) to have on him at all times the card setting out his precise obligations under the preventive measure and a copy of the court order. 16. On 31 July 1995 the applicant applied to the Brindisi District Court for a declaration that the preventive measure had expired on 2 May 1995, that is, one year after the date on which the order of 24 March 1994 was served on him. 17. In an order of 7 October 1995, the Brindisi District Court found that, even if pursuant to section 11 of Law no. 1423/56 the special supervision period began on the day on which the person on whom the preventive measure was imposed was served with the relevant order, compliance with that formality was necessary but not sufficient to constitute an initial step in the implementation of the measure. For there to be such an initial step, it was also necessary under section 7 of Law no. 1423/56 for the relevant order to be forwarded for enforcement to the competent police authority. The District Court observed that, under the Court of Cassation’s case-law, special supervision did not lapse at the end of the period for which it had been imposed, independently of when it was implemented. In the case before it, the initial step in the implementation of the measure had been taken on 25 July 1995, the day on which the Ostuni police had drafted the document setting out the obligations imposed on the applicant. Consequently, it held that the preventive measure had not ceased to apply. 18. The applicant appealed to the Lecce Court of Appeal. He maintained that the preventive measure had automatically ceased to apply on 2 May 1995 or, at the latest, on 28 September 1995, which was one year after the date on which the order had been served on the Brindisi police and the Ostuni municipality. In any event, the applicant sought an order discharging the measure, arguing that there were no grounds for it to remain in force. 19. In a judgment of 29 April 1996, the Court of Appeal upheld the order of 7 October 1995, observing that the case fell outside those for which statute provided the automatic lapse of special supervision. It considered that the preventive measure could not automatically cease to apply on the date stated in the order of 24 March 1994 independently of when it was implemented. Consequently, it concluded that the starting-point for the application of the preventive measure was the day on which the first steps had been taken to implement it. In this case that had been 25 July 1995, when the police had drafted the document setting out the applicant’s obligations under the order. 20. The applicant appealed on points of law to the Court of Cassation. 21. In a judgment of 16 December 1996, which was filed with the registry on 6 February 1997, the Court of Cassation ruled that the order for special supervision of the applicant had ceased to apply on 2 May 1995. It observed that section 11 of Law no. 1423/56 expressly provided that the period of special supervision started to run on the day the person to be supervised was served with the relevant order. Consequently, contrary to the opinion of the Court of Appeal, it found that the date on which the document setting out the obligations imposed on the applicant was drafted was not relevant for the purposes of identifying the date on which the preventive measure first took effect. It concluded that the period of special supervision had started to run on the day on which the relevant order was served on the applicant (3 May 1994). 22. In the meantime, on 20 September 1996 the Ostuni police had informed the Brindisi District Court that the order for special supervision of the applicant had ceased to apply on 24 July 1996. 23. As a result of the special supervision measure imposed on the applicant, the Ostuni Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civic rights had been suspended pursuant to Presidential Decree no. 223 of 20 March 1967. 24. The applicant was subsequently prevented from taking part in the regional council (Consiglio Regionale) election of 23 April 1995. 25. On 28 July 1995 the applicant’s name was restored to the electoral register. 26. In a certificate issued on 22 November 1995, however, the mayor of Ostuni stated that the applicant had been subject to a further year’s special supervision by a decision of the Brindisi police of 25 July 1995. On 15 December 1995 the mayor declared that the applicant would be struck off the electoral register for another year. 27. On 12 April 1996 the Ostuni Municipal Electoral Committee refused the applicant’s request to be allowed to take part in the national parliamentary election on 21 April 1996. 28. The applicant lodged an appeal with the Lecce Court of Appeal in which he contended that the preventive measure had ceased to apply on 2 May 1995 and that, accordingly, there were no grounds for excluding him from the election. 29. In a judgment of 18 April 1996, the Lecce Court of Appeal dismissed the appeal on the ground that the disenfranchisement could be challenged only after the preventive measure had actually been implemented. 30. The power to impose preventive measures was introduced by Law no. 1423 of 27 December 1956. Such measures are intended to prevent individuals who are considered “socially dangerous” from committing offences. The statute indicates three groups of socially dangerous persons: (a) anyone who, on the basis of factual evidence, must be regarded as a habitual offender; (b) anyone who, on account of his conduct or lifestyle and on the basis of factual evidence, must be regarded as habitually deriving his income from the proceeds of crime; and (c) anyone who, on account of his conduct and on the basis of factual evidence, must be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to society, security or public order. 31. Section 3 of Law no. 1423/56 provides that persons who are socially dangerous may be placed under special police supervision. The competent court sits in camera and must give a reasoned decision after hearing the public prosecutor and the person concerned, who has the right to file memorials and to be represented by a lawyer. Both parties may lodge an appeal and/or an appeal on points of law, which have no suspensive effect. 32. When imposing a preventive measure, the court must fix its duration and specify the conditions with which the person concerned must comply. In accordance with paragraph 1 of section 11 of Law no. 1423/56, the special supervision period starts to run on the day on which its addressee is notified of the relevant order and automatically ends when the period of time fixed in the order has elapsed. 33. Article 2 of Presidential Decree no. 223 of 20 March 1967 provides that, inter alia, persons on whom preventive measures have been imposed by a court order or an administrative decision shall be disenfranchised. 34. Article 32 § 1 (3) of that decree provides that in such cases the prefect (questore) empowered to enforce such measures shall notify the municipality where the person concerned resides of any decision entailing the loss of civic rights. The Municipal Electoral Committee shall then remove the name of the person concerned from the electoral register, even outside one of the usual periods for updating the lists. 35. Article 117 of the Constitution confers legislative power on the regions. It sets out the competence of the regions, inter alia, for regional administrative planning, local policy, public health, education, local museums and libraries, town planning, tourism, traffic regulations, navigation, quarries and peat bogs, hunting, agriculture, forests and handicraft. Article 117 also states that the regions have legislative power in other matters established by constitutional laws. Regional laws are enacted by the regional councils (Article 121 § 2 of the Constitution).