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You are here: BAILII >> Databases >> European Court of Human Rights >> RAIMONDO v. ITALY - 12954/87 [1994] ECHR 3 (22 February 1994)
URL: http://www.bailii.org/eu/cases/ECHR/1994/3.html
Cite as: (1994) 18 EHRR 237, 18 EHRR 237, [1994] ECHR 3
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In the case of Raimondo v. Italy*,
The European Court of Human Rights, sitting, in accordance
with Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention") and the relevant
provisions of the Rules of Court, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr R. Bernhardt,
Mr F. Matscher,
Mr C. Russo,
Mrs E. Palm,
Mr I. Foighel,
Mr F. Bigi,
Mr L. Wildhaber,
Mr D. Gotchev,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 September 1993 and
24 January 1994,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
* Note by the Registrar: The case is numbered 1/1993/396/474. The
first number is the case's position on the list of cases referred to
the Court in the relevant year (second number). The last two numbers
indicate the case's position on the list of cases referred to the Court
since its creation and on the list of the corresponding originating
applications to the Commission.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 18 January 1993, within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 12954/87) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national,
Mr Giuseppe Raimondo, on 23 April 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Italy recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 6 para. 1 (art. 6-1) of the Convention,
Article 1 of Protocol No. 1 (P1-1) and Article 2 of Protocol No. 4
(P4-2).
2. In response to the enquiry made in accordance with
Rule 33 para. 3 (d) of the Rules of Court, Mrs Pittelli, Mr Raimondo's
wife, and their three sons informed the Registrar on 7 June 1993 of
the death of their husband and father. They stated that they wished
to continue the proceedings and to take part in them and be
represented by the lawyer whom they had appointed (Rule 30). For
reasons of convenience Mr Raimondo will continue to be referred to as
the "applicant", although it is now his widow and his three sons who
are to be regarded as having that status (see, inter alia, the
Pandolfelli and Palumbo v. Italy judgment of 27 February 1992, Series A
no. 231-B, p. 16, para. 2).
Mrs Pittelli and her sons also consented to the disclosure of
the identity of Mr Raimondo, who had at first been designated by the
initials G. R.
3. The Chamber to be constituted included ex officio Mr C. Russo,
the elected judge of Italian nationality (Article 43 of the Convention)
(art. 43), and Mr R. Ryssdal, the President of the Court
(Rule 21 para. 3 (b)). On 27 February 1993 Mr R. Bernhardt, the
Vice-President of the Court, drew by lot, in the presence of the
Registrar, the names of the other seven members, namely Mr Bernhardt,
Mr F. Matscher, Mrs E. Palm, Mr I. Foighel, Mr F. Bigi, Mr L. Wildhaber
and Mr D. Gotchev (Article 43 in fine of the Convention and
Rule 21 para. 4) (art. 43).
4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the Italian
Government ("the Government"), the applicant's lawyer and the Delegate
of the Commission on the organisation of the proceedings (Rules 37
para. 1 and 38). Pursuant to the order made in consequence, the
Registrar received the applicant's memorial on 12 July 1993 and the
Government's memorial on 30 July. The Delegate of the Commission did
not submit observations in writing.
5. On 6 September 1993 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
6. In accordance with the decision of the President - who had
given the applicant leave to use the Italian language (Rule 27
para. 3) -, the hearing took place in public in the Human Rights
Building, Strasbourg, on 20 September 1993. The Court had held a
preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, on secondment to the
Diplomatic Legal Service of the Ministry of
Foreign Affairs, Co-Agent,
Mr E. Selvaggi, Head of the Human Rights Department,
Directorate General of Criminal Affairs,
Ministry of Justice, Counsel;
(b) for the Commission
Mr E. Busuttil, Delegate;
(c) for the applicant
Mr M. Mellini, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives, who also replied to its questions.
On 14 October 1993 the Government provided additional
information. The Commission submitted its written comments thereon on
11 December.
AS TO THE FACTS
I. The particular circumstances of the case
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.
A. The criminal proceedings
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.
B. The proceedings concerning the preventive measures
1. In the Catanzaro District Court
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.
2. In the Catanzaro Court of Appeal
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.
II. Relevant domestic law
A. The legislation in force at the material time
1. The Act of 27 December 1956
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).
..."
2. The Act of 31 May 1965
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."
B. The case-law concerning the application of preventive
measures, particularly of a pecuniary nature
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).
PROCEEDINGS BEFORE THE COMMISSION
21. Mr Raimondo applied to the Commission on 23 April 1987. He
complained of the following: (a) the unlawfulness and the length of his
detention (Article 5 paras. 1 and 3 of the Convention) (art. 5-1,
art. 5-3); (b) the length of various proceedings concerning him and in
particular the criminal proceedings (Article 6 para. 1) (art. 6-1);
(c) the failure to respect the right to be presumed innocent inasmuch
as preventive measures were applied to him (Article 6 para. 2)
(art. 6-2); (d) the obligation to lodge a security in order to ensure
compliance with the above measures (Article 1 of Protocol No. 4)
(P4-1); (e) an interference with his property resulting from the
seizure and confiscation of certain of his possessions (Article 1 of
Protocol No. 1) (P1-1); and (f) the fact that he had been deprived of
his right to freedom of movement (Article 2 of Protocol No. 4) (P4-2).
22. On 6 December 1991 the Commission declared the application
(no. 12954/87) admissible as regards the complaints based on the
applicant's right to peaceful enjoyment of his possessions, to the
freedom of movement and to a decision on the application of preventive
measures within a reasonable time; it found the rest of the application
inadmissible. In its report of 21 October 1992 (made under Article 31)
(art. 31), it expressed the following opinion:
(a) that there had been no violation of Article 1 of
Protocol No. 1 (P1-1) with regard to the seizure (eighteen votes to
one) and the confiscation (sixteen votes to three) of the applicant's
property up to 31 December 1986 and on account of the damage occasioned
by the administration of the seized and confiscated assets until that
date (eighteen votes to one);
(b) that there had been a violation of Article 1 of
Protocol No. 1 (P1-1) in so far as the confiscation of nine items of
real property and one lorry had continued to take effect after
31 December 1986 (unanimously);
(c) that there had been a violation of Article 2 of
Protocol No. 4 (P4-2) inasmuch as the applicant had been deprived of
his right to freedom of movement from 4 July to 20 December 1986
(unanimously);
(d) that there had been no violation of Article 6 para. 1
(art. 6-1) as regards the length of the proceedings relating to the
seizure and confiscation (unanimously).
The full text of the Commission's opinion and of the
dissenting opinion contained in the report is reproduced as an annex
to the present judgment*.
_______________
* Note by the Registrar: for practical reasons this annex will appear
only with the printed version of the judgment (volume 281-A of
Series A of the Publications of the Court), but a copy of the
Commission's report is available from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
23. In their memorial, the Government asked the Court "to hold and
adjudicate that there had been no infringement either of the Convention
or of Protocols Nos. 1 and 4".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
24. Mr Raimondo complained of the seizure on 13 May 1985 of
sixteen items of real property and six vehicles, and the confiscation
of several of these assets ordered on 16 October 1985 (see
paragraph 13 above). He relied on Article 1 of Protocol No. 1 (P1-1),
which provides as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to
the conditions provided for by law and by the general
principles of international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with
the general interest or to secure the payment of taxes or
other contributions or penalties."
25. In order to determine whether the contested measures amounted
to controlling the "use of property" within the meaning of the second
paragraph or constituted deprivation of possessions under the first
paragraph, the Court will first examine their application up to
31 December 1986, when the decision of the Catanzaro Court of Appeal
became final (see paragraph 14 above). It will then consider the
matter of their remaining entered in the public registers subsequent
to that date (see paragraph 15 above).
A. The application of the preventive measures concerning property
up to 31 December 1986
26. The Government did not deny that there had been an
interference with the applicant's right to peaceful enjoyment of his
possessions. They contended, however, that the seizure and
confiscation was justified on the basis of the exceptions allowed under
Article 1 (P1-1) to the principle set forth in the first sentence of
that provision.
1. The seizure
27. Like the Commission, the Court finds that the seizure was
provided for in section 2 ter of the 1965 Act (see paragraph 18 above)
and did not purport to deprive the applicant of his possessions but
only to prevent him from using them. It is therefore the second
paragraph of Article 1 of Protocol No. 1 (P1-1) which is relevant here.
In addition, the applicant did not contend that on 13 May 1985
it was unreasonable for the District Court to hold that there was
sufficient circumstantial evidence to show that the possessions seized
represented the proceeds from unlawful activities or their
reinvestment. What he complained about is, rather, that such a drastic
measure was taken at this stage of the proceedings. However, seizure
under section 2 ter of the 1965 Act is clearly a provisional measure
intended to ensure that property which appears to be the fruit of
unlawful activities carried out to the detriment of the community can
subsequently be confiscated if necessary. The measure as such was
therefore justified by the general interest and, in view of the
extremely dangerous economic power of an "organisation" like the Mafia,
it cannot be said that taking it at this stage of the proceedings was
disproportionate to the aim pursued.
Accordingly, on this point no violation of Article 1 of
Protocol No. 1 (P1-1) has been established.
2. The confiscation
28. In the applicant's submission, even if it was accepted that
the confiscation had not deprived him of the ownership of his
possessions, the entry in the public registers represented a form of
enforcement of the measure before any decision had been given on his
appeal.
29. Although it involves a deprivation of possessions,
confiscation of property does not necessarily come within the scope of
the second sentence of the first paragraph of Article 1 of Protocol
No. 1 (P1-1) (see the Handyside v. the United Kingdom judgment of
7 December 1976, Series A no. 24, p. 30, para. 63, and the AGOSI v. the
United Kingdom judgment of 24 October 1986, Series A no. 108, p. 17,
para. 51).
According to Italian case-law, confiscation of the kind which
is in issue in this case could not moreover have the effect of
transferring ownership to the State until there had been an irrevocable
decision (see paragraph 20 above). There was no such decision in this
instance because Mr Raimondo had challenged the order of the Catanzaro
District Court of 16 October 1985 (see paragraph 13 above). Here too
therefore it is the second paragraph of Article 1 (P1-1) which applies.
30. Like the Government and the Commission, the Court observes
that the confiscation - also provided for in section 2 ter of the 1965
Act -pursued an aim that was in the general interest, namely it sought
to ensure that the use of the property in question did not procure for
the applicant, or the criminal organisation to which he was suspected
of belonging, advantages to the detriment of the community.
The Court is fully aware of the difficulties encountered by
the Italian State in the fight against the Mafia. As a result of its
unlawful activities, in particular drug-trafficking, and its
international connections, this "organisation" has an enormous turnover
that is subsequently invested, inter alia, in the real property sector.
Confiscation, which is designed to block these movements of suspect
capital, is an effective and necessary weapon in the combat against
this cancer. It therefore appears proportionate to the aim pursued,
all the more so because it in fact entails no additional restriction
in relation to seizure.
Finally, the preventive purpose of confiscation justifies its
immediate application notwithstanding any appeal.
In conclusion, the respondent State did not overstep the
margin of appreciation left to it under the second paragraph of
Article 1 (P1-1).
3. The surveillance of the property seized or confiscated
31. Again relying on Article 1 of Protocol No. 1 (P1-1),
Mr Raimondo alleged that, as the municipal police had failed to carry
out any proper surveillance, the property subject to the preventive
measures had been the target of extensive vandalism.
32. The Government denied this. In view of the official status
of those responsible for guarding the property - officers of the
municipal police designated by the judicial authorities - no accusation
of negligence against them was warranted. Furthermore in 1989
legislation had been enacted to regulate this question, firstly by
protecting the interests of persons whose property was returned to them
after seizure and secondly by indicating a public-interest use for
property which had been seized and then confiscated on a permanent
basis.
33. Like the Commission, the Court observes that any seizure or
confiscation inevitably entails damage. The Commission found that the
applicant's allegations did not provide a sufficiently clear basis for
examining whether the actual damage sustained in the present case
exceeded such inevitable damage. Before the Court the applicant did
not furnish any more specific information. The Court therefore cannot
but adopt the Commission's approach and hold that on this point too no
violation of Article 1 of Protocol No. 1 (P1-1) has been established.
B. The fact that the contested measures remained entered
in the public registers after 31 December 1986
34. According to the applicant the competent authorities delayed
giving effect to the decision of the Catanzaro Court of Appeal of
4 July 1986.
35. The Government maintained that the real property and the
movable goods had been returned on 2 February 1987, only two months
after the above-mentioned decision had been filed with the registry.
They conceded that the formalities for entering in the public registers
the revocation of the contested measures had taken some time, but
Mr Raimondo could and should have contacted the appropriate department
with a copy of the decision revoking the measures. Article 619 of the
former Code of Criminal Procedure, cited by his lawyer at the hearing,
was not applicable because it concerned exclusively the cancellation
by the prosecuting authorities of mortgages or seizures ordered to
secure the payment of the debts of a defendant after his conviction
(court costs, fine and prison expenses).
36. The Court notes in the first place that the possessions in
question were returned to the applicant on 2 February 1987, two months
after the Court of Appeal's decision was filed with the registry. It
must nevertheless consider whether the fact that the entries remained
in the relevant registers constituted an interference with the right
guaranteed under Article 1 of Protocol No. 1 (P1-1).
No such interference occurred in relation to the real property
seized on 13 May 1985 and three of the vehicles confiscated on
16 October 1985, because the requisite entries were made rapidly, on
2 and 10 February 1987 (see paragraph 15 above). On the other hand,
there was an interference as regards the lorry and the nine items of
real property confiscated on 16 October 1985 inasmuch as the entry
concerning the lorry was not made until 10 July 1987 and that
concerning the real property not until after 9 August 1991 (see
paragraph 15 above).
It is not for the Court to determine who should have taken the
appropriate steps in this case. However, and notwithstanding the
reasons advanced by the Government, the responsibility of the public
authorities was engaged. The Court finds it hard to see why it was
necessary to wait respectively more than seven months (2 December 1986
- 10 July 1987) and four years and eight months (2 December 1986 -
9 August 1991) before regularising the legal status of some of
Mr Raimondo's possessions, when the Catanzaro Court of Appeal had
ordered that all the property be returned to the owners "after the
entries had been removed from the registers" (previa cancellazione
delle formalità concernenti le eseguite trascrizioni).
In addition, this interference was neither "provided for by
law" nor necessary "to control the use of property in accordance with
the general interest" within the meaning of Article 1 of Protocol No. 1
(P1-1).
Accordingly, there has been a violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 (P4-2)
37. The applicant complained that the special police supervision
under which he had been placed had constituted a violation of Article 2
of Protocol No. 4 (P4-2), according to which:
"1. Everyone lawfully within the territory of a State
shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.
...
3. No restrictions shall be placed on the exercise of these
rights other than such as are in accordance with law and are
necessary in a democratic society in the interests of
national security or public safety, for the maintenance of
ordre public, for the prevention of crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others.
..."
38. The Government disputed this view. The decision, adopted in
private session, revoking the special supervision had not acquired
legal force, according to the relevant provisions, until the day on
which it had been filed with the registry, namely 2 December 1986. Up
to that point it had remained "a purely internal event". The Catanzaro
Court of Appeal could not be criticised for failing to give its
decision within thirty days, as provided for in section 4 of the 1956
Act, because that time-limit was not a mandatory one.
39. The Court considers in the first place that, notwithstanding
the applicant's assertion to the contrary, the measure in issue did not
amount to a deprivation of liberty within the meaning of Article 5
para. 1 (art. 5-1) of the Convention. The mere restrictions on the
liberty of movement resulting from special supervision fall to be dealt
with under Article 2 of Protocol No. 4 (P4-2) (see the Guzzardi v.
Italy judgment, cited above, p. 33, para. 92).
In view of the threat posed by the Mafia to "democratic
society", the measure was in addition necessary "for the maintenance
of ordre public" and "for the prevention of crime". It was in
particular proportionate to the aim pursued, up to the moment at which
the Catanzaro Court of Appeal decided, on 4 July 1986, to revoke it
(see paragraph 14 above).
It remains to consider the period between 4 July and
20 December 1986, when the decision was notified to the applicant (see
the same paragraph). Even if it is accepted that this decision, taken
in private session, could not acquire legal force until it was filed
with the registry, the Court finds it hard to understand why there
should have been a delay of nearly five months in drafting the grounds
for a decision which was immediately enforceable and concerned a
fundamental right, namely the applicant's freedom to come and go as he
pleased; the latter was moreover not informed of the revocation for
eighteen days.
40. The Court concludes that at least from 2 to 20 December 1986
the interference in issue was neither provided for by law nor
necessary. There has accordingly been a violation of Article 2 of
Protocol No. 4 (P4-2).
III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 OF THE CONVENTION
(art. 6-1)
41. Mr Raimondo finally criticised the length of the proceedings
relating to his appeal against the confiscation and the special
supervision. He relied on Article 6 para. 1 (art. 6-1) of the
Convention, which provides as follows:
"In the determination of his civil rights and obligations
and of any criminal charge against him, everyone is entitled
to a ... hearing within a reasonable time by [a] ... tribunal
..."
42. The period to be taken into consideration began on
16 October 1985, the date on which the Catanzaro District Court ordered
the measures in question (see paragraph 13 above). It ended on
31 December 1986, when the decision of the Court of Appeal became
final. It therefore lasted one year, two months and two weeks.
43. The Court shares the view taken by the Government and the
Commission that special supervision is not comparable to a criminal
sanction because it is designed to prevent the commission of offences.
It follows that proceedings concerning it did not involve "the
determination ... of a criminal charge" (see the Guzzardi judgment
cited above, p. 40, para. 108).
On the matter of confiscation, it should be noted that
Article 6 (art. 6) applies to any action whose subject matter is
"pecuniary" in nature and which is founded on an alleged infringement
of rights that were likewise of a pecuniary character (see the Editions
Périscope v. France judgment of 26 March 1992, Series A no. 234-B,
p. 66, para. 40). That was the position in the instant case.
44. However, having regard to the fact that the case came before
two domestic courts, the Court does not consider the total length of
the proceedings to have been unreasonable (see, mutatis mutandis, the
Salerno v. Italy judgment of 12 October 1992, Series A no. 245-D,
p. 56, para. 21).
It follows that there has been no violation of Article 6
para. 1 (art. 6-1).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
45. Under Article 50 (art. 50) of the Convention,
"If the Court finds that a decision or a measure taken by
a legal authority or any other authority of a High
Contracting Party is completely or partially in conflict with
the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
A. Damage
46. Mr Raimondo claimed compensation for pecuniary and non-
pecuniary damage without giving any figures. The fact that he had to
halt his construction work following the confiscation of his property
and the unsatisfactory conditions in which it had been kept had
resulted in substantial deterioration of the buildings and the
vehicles. The imposition of the special supervision had made it
difficult for him to move around and impossible for him to conduct his
business. In addition, the delay in entering the revocation of the
confiscation had meant that any attempt to dispose of the property in
question had been bound to fail, which had led to an increase in his
already heavy debts.
47. According to the Government, the applicant failed to show that
the alleged violations had resulted in pecuniary damage. As regards
any non-pecuniary damage, they were of the opinion that, if a violation
were to be found, the finding would in itself afford sufficient just
satisfaction.
48. The Delegate of the Commission considered that the applicant
had undoubtedly sustained pecuniary and non-pecuniary damage. However,
in the absence of any specific claim, he was uncertain of the approach
to be adopted.
49. The Court dismisses the claims for pecuniary damage as the
terms in which they are formulated are too vague and the information
contained in the file does not help to clarify the matter. On the
other hand, it takes the view that Mr Raimondo suffered some non-
pecuniary damage for which it awards him 10,000,000 Italian lire.
B. Costs and expenses
50. At the hearing the applicant's lawyer sought the reimbursement
of 10,552,325 lire (inclusive of value added tax) in respect of the
costs and expenses incurred before the Convention institutions.
51. The Government left this matter to the discretion of the
Court, but pointed out that the sum awarded should be proportionate to
the degree of success, if any, of Mr Raimondo's application.
The Delegate of the Commission did not express an opinion on
the question.
52. In view of the failure of some of Mr Raimondo's complaints,
the Court, having regard to the available evidence and to its relevant
case-law, awards him 5,000,000 lire.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that no violation of Article 1 of Protocol No. 1 (P1-1)
has been established either in respect of the seizure and the
confiscation of the applicant's property up to
31 December 1986 or in respect of the damage occasioned by
those measures;
2. Holds that there has been a breach of that same Article
(P1-1) inasmuch as the confiscation, on 16 October 1985, of
a lorry and nine items of real property remained entered in
the relevant registers after 31 December 1986 and that no
other violation of that provision has been established;
3. Holds that there has been a violation of Article 2 of
Protocol No. 4 (P4-2) at least in so far as the special
police supervision of the applicant continued after
2 December 1986;
4. Holds that Article 6 (art. 6) of the Convention does not
apply to the said special supervision;
5. Holds that there has been no violation of that provision as
regards the length of the confiscation proceedings;
6. Holds that the respondent State is to pay to Mr Raimondo,
within three months, 10,000,000 (ten million) Italian lire
for non-pecuniary damage and 5,000,000 (five million) lire
for costs and expenses;
7. Dismisses the remainder of the applicant's claims for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 22 February 1994.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar