CASE OF DE TOMMASO v. ITALY
Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations;Fair hearing);No violation of Article 13+P4-2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 para. 1 of Protocol No. 4 - Freedom of movement;Article 2 of Protocol No. 4 - Freedom of movement-{general});Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Kristina Pardalos;Ledi Bianku;Mark Villiger;Nebojša Vučinić;Paulo Pinto De Albuquerque;Robert Spano;Ksenija Turković
10. The applicant, Mr Angelo de Tommaso, is an Italian national who was born in 1963 and lives in Casamassima. 11. On 22 May 2007 the Bari public prosecutor recommended that the Bari District Court place the applicant under special police supervision (sorveglianza speciale di pubblica sicurezza) for two years, on the basis of Act no. 1423/1956, and impose a compulsory residence order on him during that time. The public prosecutor submitted that the applicant’s previous convictions for drug trafficking, absconding and unlawful possession of weapons showed that he associated with criminals and was a dangerous individual. He also noted that the applicant had been given a “warning” by the police but had persisted in his criminal conduct. 12. In submissions of 6 March 2008 the applicant challenged the prosecutor’s recommendation. He argued that there had been a case of mistaken identity and that the alleged breaches of the terms of his special supervision concerned a person who shared his first name and surname but had been born in 1973. He further submitted that no criminal charges had been brought against him since a conviction dating back to 2002. Although he had been convicted of absconding in 2004, that was not a decisive factor for the imposition of the measure in question. He argued that there was no need to place him under special supervision. 13. In a decision of 11 April 2008, served on 4 July 2008, the Bari District Court placed the applicant under special supervision for two years. It rejected his arguments, finding that the statutory requirements for the imposition of the measure were indeed satisfied, there being no doubt that he was dangerous. 14. The District Court found that the applicant had “active” criminal tendencies and that the evidence before it showed that he had derived most of his means of subsistence from criminal activity. 15. The court observed, in particular: “The subject was issued with a ‘verbal warning for public safety’ on 18 September 2006, but this did nothing to improve his conduct; he continued to associate regularly with key figures in the local underworld (malavita locale) and carried on committing offences (see statement of charges pending: breach of supervision order on 25 April 2007; breach of supervision order on 29 April 2007).” 16. The District Court further held: “The findings of the investigation (see documents and certificates in the case file) show that Mr Angelo de Tommaso remains personally involved in various criminal activities, among which the greatest threat to public order and safety is posed by offences against property and weapon- and drug-related offences. This negative picture is compounded by the contents of the recent report issued by the Gioia del Colle carabinieri on 26 January 2008, from which it appears that far from having receded, the subject’s criminal tendencies are still thought to be active and operational. The evidence in the file indicates that he has no fixed and lawful occupation (having declared himself available for employment from February 2008) and that the serious offences under consideration are such as to warrant the conclusion that he has, up until now, derived a significant part of his means of subsistence from criminal activity, by repeatedly resorting to crime either alone or in association with habitual offenders (whether in his municipality of residence or elsewhere). To ensure more thorough monitoring, it is therefore necessary to order not only special police supervision for a period of two years (a measure deemed reasonable on account of the subject’s character as clearly emerges from the acts attributed to him), but also compulsory residence for the same duration.” 17. The preventive measure imposed the following obligations on the applicant: – to report once a week to the police authority responsible for his supervision; – to start looking for work within a month; – to live in Casamassima and not to change his place of residence; – to lead an honest and law-abiding life and not give cause for suspicion; – not to associate with persons who had a criminal record and who were subject to preventive or security measures; – not to return home later than 10 p.m. or to leave home before 6 a.m., except in case of necessity and only after giving notice to the authorities in good time; – not to keep or carry weapons; – not to go to bars, nightclubs, amusement arcades or brothels and not to attend public meetings; – not to use mobile phones or radio communication devices; and – to have with him at all times the document setting out his obligations (carta precettiva), and to present it to the police authority on request. 18. On 14 July 2008 the applicant appealed to the Bari Court of Appeal. 19. On 31 July 2008 the Bari prefecture ordered the withdrawal of the applicant’s driving licence. 20. In a decision of 28 January 2009, served on the applicant on 4 February 2009, the Court of Appeal allowed his appeal and quashed the preventive measure ex tunc. 21. The Court of Appeal observed, firstly, that for a preventive measure to be imposed it was necessary to establish that the individual posed a “current danger”, which was not necessarily linked to the commission of a specific offence, but rather to the existence of a complex situation of a certain duration indicating that the individual had a particular lifestyle that prompted alarm for public safety. 22. In the Court of Appeal’s view, the requirement of a “current” danger to society implied that the relevant decision should relate to the time of the assessment and should remain valid throughout its implementation; any previous circumstances could be taken into account only in relation to their impact on the “current” element. 23. The court found that at the time the measure had been imposed, the applicant’s dangerousness could not have been inferred from any criminal activity. 24. It then observed that in several final judgments delivered between September 1995 and August 1999 the applicant had been convicted of tobacco smuggling. He had subsequently changed his sphere of activity and until 18 July 2002 had been involved in drug trafficking and handling illegal weapons, offences for which he had been sentenced to four years’ imprisonment in a judgment of 15 March 2003, which had become final on 10 March 2004; he had served his sentence from 18 July 2002 to 4 December 2005. 25. The Court of Appeal accordingly noted that the applicant’s most recent illegal activities relating to drugs dated back to more than five years before the preventive measure had been imposed. All that the court could hold against him was an offence of absconding, committed on 14 December 2004 (while he had been subject to a compulsory residence order). 26. The court also pointed out that the breaches of the terms of special supervision committed on 25 and 29 April 2007 concerned a different person, who had the same first name and surname as the applicant but had been born in 1973. 27. The Court of Appeal held that the District Court had omitted to assess the impact of the rehabilitation purpose of the sentence on the applicant’s personality. It observed in particular: “While it is true that the application of special supervision is compatible with the status of detention, which relates solely to the time of the execution of the sentence, the assessment of dangerousness is inevitably even more significant in the case of an individual who has fully served his sentence and has committed no further offences after his release, as is the case for Mr de Tommaso. The note of 26 January 2008 in which the carabinieri mentioned that Mr de Tommaso associated with convicted offenders (to whom he had been caught speaking) does not appear sufficient to establish his dangerousness, bearing in mind that Mr de Tommaso has not been the subject of any further judicial proceedings since the decision to impose the preventive measure. Lastly, the Court of Appeal notes that the material produced by the defence before the District Court and at the hearing before this division indicates that, notwithstanding the typically casual nature of work as a farm labourer, the subject has, at least since his release from prison in 2005 up to the present day, consistently been in lawful employment providing him with a respectable source of income. In conclusion, in March 2008 there were no specific facts from which to infer persistent dangerousness on the part of the subject, who, after serving his lengthy sentence of imprisonment, has not displayed any conduct justifying the assessment made in the judgment appealed against, which is therefore to be quashed.”