CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 octobre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s6DB91820 { text-align:center } .s8BB62139 { margin-right:auto; margin-left:auto; border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sD3427EA2 { font-family:Arial; font-weight:bold; font-style:italic; text-decoration:underline } Published on 30 October 2023   FIRST SECTION Applications nos. 20674/17 and 22110/19 Guido CINQUE against Italy and E.M.F. against Italy (see list appended) communicated on 9 October 2023 SUBJECT MATTER OF THE CASE The applications concern the confiscation of the applicants’ assets, which were considered to be proceeds of crime, on the basis of Article 12 sexies of Law Decree no. 306/1992 (“extended confiscation”; confisca allargata ). As regards application no. 20674/17 , the applicant was convicted of exploitation and fraud, committed approximately as from 2000 (the final decision was issued by the Court of Cassation on 15 September 2016). As regards application no. 22110/19, the applicant was convicted – following a plea bargain ( patteggiamento ) – of money laundering. The final decision was issued by the Court of Cassation on 16 November 2018. In both cases, having established that the applicants’ assets were disproportionate to their lawful income and that the applicants were unable to demonstrate their lawful origin, the national courts ordered their confiscation. The applicants complain under Article 1 of Protocol No. 1 to the Convention and, in case no. 20674/17, under Article 6 of the Convention of (i) the lack of legal basis for the confiscation; and (ii) the disproportionate character of the confiscation, on account of the reversed burden of proof as to the lawful origin of the assets and the allegedly incorrect assessment of evidence which, in their view, showed that the assets had been acquired lawfully or, in any case, long before the commission of the crimes. As regards case no. 22110/19, the applicant also complains, under Article   6   §§   1 and 3 (b) of the Convention, of an inadequate reasoning of national decisions and insufficient opportunity to prepare her defence. She points out that, while she had accepted restrictions to her rights of defence by agreeing to a plea-bargain, this waiver had only extended to the assessment of her criminal liability and not to the confiscation of assets. She also refers to the fact that the confiscation was ordered by the Monza preliminary investigations judge of his own motion.   QUESTIONS TO THE PARTIES 1.     Was the confiscation of the applicants’ assets in accordance with the conditions provided for by law, as required by Article 1 of Protocol No.   1 to the Convention? In particular, was the confiscation of the applicants’ assets, based on the finding of a disproportion between the assets and the applicants’ income, sufficiently foreseeable and non-arbitrary?   2.     If so, was the confiscation of the applicants’ assets proportionate to the aim pursued, as required by Article 1 of Protocol No.   1 to the Convention? In particular, the parties are invited to address the following points: (i)     whether the domestic authorities showed that the confiscated assets could have been the proceeds of crimes in a reasoned manner, on basis of an objective assessment of the factual evidence and without relying on a mere suspicion, also in light of the date of their acquisition (see Todorov and Others v. Bulgaria , nos. 50705/11 and 6 others, § 215, 13 July 2021); (ii)     whether the applicants were afforded a reasonable opportunity of putting their arguments before the domestic courts and whether the latter duly examined the evidence submitted by the applicants ( Telbis and Viziteu v.   Romania , no. 47911/15, § 78, 26 June 2018); (iii)     as regards application no. 20674/17, whether the reversal of the burden of proof as to the lawful origin of assets acquired many years earlier imposed an excessive burden on the applicant (see Todorov , cited above, §   202 and, mutatis mutandis , Dimitrovi v. Bulgaria , no. 12655/09, §   46, 3   March 2015?   3.     As regards application no. 22110/19, did the applicant, by agreeing to a plea bargain which did not include the confiscation of her assets, waive some of her procedural rights under Article 6 of the Convention in full awareness of the legal consequences and in a genuinely voluntary manner ( Natsvlishvili and Togonidze v. Georgia , no. 9043/05, §§ 91-92, ECHR 2014 (extracts) and Scoppola v. Italy (no. 2) [GC], no. 10249/03, §   135, 17   September 2009)? If not, did the domestic courts duly address the main arguments raised by the applicant with regard to the confiscation of her assets and give sufficient reasons for their decisions, as required by Article 6 § 1 of the Convention ( Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 84, 11   July 2017)? Taking into account the fact that the Monza preliminary investigations judge decided to confiscate the applicant’s assets of his own motion, was the applicant afforded adequate time and facilities for the preparation of her defence, as required by article 6 § 3 (b) of the Convention? APPENDIX List of cases   No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 20674/17 Cinque v. Italy 10/03/2017 Guido CINQUE 1929 Gragnano Italian Deceased in 2021   Heirs Anna CINQUE 1984 Francesco CINQUE 1982 Oliviero MAZZA 2. 22110/19 E.M.F. v. Italy 11/04/2019 E.M.F 1965 Mariano Comense Italian Marina Silvia MORI