CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 juin 2024

.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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sD37F5C3B { margin-top:66pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }   Published on 8 July 2024   FIRST SECTION Application no. 51400/20 Gloria ALIA against Italy lodged on 12 November 2020 communicated on 21 June 2024 SUBJECT MATTER OF THE CASE The application concerns the imposition of an administrative sanction on the applicant for violations she committed as member of the board of directors of a company working in security brokerage. Following administrative proceedings, with decision of 8 April 2014, the Bank of Italy imposed a sanction on the members of the company’s board of directors, including the applicant. She was fined 43,500 euros for violation of Article 6 §   2   bis of Legislative Decree no. 58/1998 and of the Joint Regulations of the Bank of Italy and of the National Companies and Stock Exchange Commission ( Commissione Nazionale per le Società e la Borsa   –   “CONSOB”) of 29   October 2007. The sanction was upheld in last instance by the Court of Cassation with decision no. 3845/20 issued on 11   July 2022 and deposited with the court’s registry on 17 February 2020. The applicant complains under Article 6 §§ 1 and 3 (a) that the administrative authorities failed to provide her with sufficiently detailed information on the exact conduct attributed to her and on the nature and cause of the accusation against her. Furthermore, she complains under Article 6 §   2 of the Convention that, in applying the presumption set by Article 3 of Law no.   689/1981, the domestic courts shifted the burden of proof on the defence and failed to duly assess and establish a mental link between the applicant’s conduct and the offence committed. Finally, the applicant invokes Article 1 of Protocol No. 1 to the Convention, complaining of the unlawful and arbitrary character of the sanction.       QUESTIONS TO THE PARTIES 1.     In light of the “Engel criteria”, was Article 6 § 1 of the Convention under its criminal head applicable to the proceedings in the present case ( Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, §§   82 ‑ 86, ECHR 2003 ‑ X)?   2.     Was the applicant informed in a detailed manner on the nature and cause of the accusation against her, as required by Article 6 § 1 and 6 §   3   (a) of the Convention (see   Pélissier and Sassi v. France   [GC], no.   25444/94, §§   51-63, ECHR 1999-II, and   Mulosmani v. Albania , no.   29864/03, §§   122 ‑ 26, 8   October 2013)?   3.     Was the presumption of innocence, guaranteed by Article   6 §   2 of the Convention, respected in the present case? In particular, did Article 3 of Law no. 689/1981 as interpreted by domestic case-law, allegedly reversing the burden of proof, comply with the presumption of innocence? Did the domestic courts analyse the intentional element with sufficient care, specifically the question of whether there were objective elements of which the applicant should have been aware which would have led to believe that the internal procedures and controls applied were not adequate in relation to the risks at the material time, thereby establishing a mental link between the applicant’s conduct and the offence (see Barberà, Messegué and Jabardo v. Spain , 6 December 1988, §   77, Series   A no. 146; Telfner v. Austria , no. 33501/96, § 15, 20   March 2001; Klouvi v.   France , no.   30754/03, § 41, 30 June 2011; and, mutatis mutandis , G.I.E.M.   S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §   243, 28   June 2018, and Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, §   242, 26   September 2023)?   4.     Was the alleged interference with the applicant’s peaceful enjoyment of possessions in accordance with the requirements of Article 1 of Protocol No.   1 to the Convention? In particular, was the sanction based on a sufficiently foreseeable and non-arbitrary assessment by the domestic courts ( AGOSI v. the United Kingdom , 24 October 1986, § 55, Series A no.   108; Lekić v. Slovenia [GC], no. 36480/07, § 95, 11 December 2018; and G.I.E.M.   S.r.l. and Others v. Italy [GC], nos. 1828/06 and 2 others, §   302, 28   June 2018)?