CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 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 } .s2550CC02 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; font-size:15pt } .s4B4B41EE { font-family:Arial; font-size:12pt } .s7C8EA9E6 { font-family:Arial; color:#202124; background-color:#ffffff } .s16DC539 { font-family:Arial; font-size:12pt; font-style:italic } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s715E7C6D { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .sFF075836 { margin-right:7.05pt; margin-left:7.05pt; border-collapse:collapse; } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s1127A579 { margin-top:0pt; margin-bottom:12pt; font-size:9pt }   Published on 8 July 2024   FIRST SECTION Application no. 45381/21 Sergio MARRACINI against Italy and 5 other applications (see list appended) communicated on 18 June 2024 SUBJECT MATTER OF THE CASE The applications concern the applicants’ criminal conviction of “misappropriation of public funds” under Article 314 of the Criminal Code (“the CC”). At the relevant time, all the applicants were members of the Sardinia Regional Council, within which they belonged to the same political group (the so-called “ Gruppo misto ”, which included all the members who did not belong to any other specific political group). As members of a political group, they periodically received public funds destined to finance the group’s activities. According to Regional Law no. 37 of 1995 and to Resolution of the Bureau of the Presidency of the Regional Council no. 293 of 5 October 1993, every year the group leader ( capogruppo ) had to submit a report on the use of the funds received by the members of the group ( rendiconto ), to be checked for regularity by the Bureau of the Presidency. According to the applicants, the legislative framework did not explicitly require the members to provide documents proving how the funds had been used. The domestic courts tried and convicted the applicants of, inter alia , misappropriation of public funds committed between 2004 and 2009 (see appended table for details). The final decision was taken by the Court of Cassation on 9 March 2021, by judgment no. 20348 deposited with the court’s registry on 21 May 2021. The domestic courts held that, as a general rule, group members who had received funds should be able to show how they had been used. Moreover, the offence of misappropriation of public funds under Article 314 of the CC was to be considered committed whenever the funds were not specifically destined to finance institutional activities of the group. In application of domestic case-law the offence occurred also in the case of funds used to finance activities of the political party to which the member of the group belonged and in the case of personal political activities. Since the applicants had not provided evidence that the funds had been used for the group’s institutional activities, they were found guilty of misappropriation of public funds. All the applicants (except the applicant in application no. 59961/21) complain under Articles 7 and 6 § 2 of the Convention of the breach of the in dubio pro reo principle. In finding them guilty because they had failed to prove the legitimate use of the public funds, the domestic courts had shifted the burden of proof from the prosecution to the defence and, as a result, the courts had failed to duly assess and establish a mental link between the conduct and the offence committed. Furthermore, all applicants complain under Article 7 of the Convention of the unforeseeability of their conviction due to the legal framework and the case-law available at the material time concerning how the funds could be legitimately used (see, in particular, judgment of the Court of Cassation no.   33069 of 5 August 2003, Tretter ).     QUESTIONS TO THE PARTIES Concerning applications nos. 45381/21, 45382/21, 46086/21, 58649/21, 58654/21 1.     Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the proceedings against the applicants? In particular, was there a reversal of the burden of proof from the prosecution to the defence in ascertaining the applicants’ criminal responsibility, taking into account that the domestic courts considered the misappropriation of public funds proven because the applicants failed to show that the funds had been used in a legitimate manner (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; Salabiaku v.   France , 7   October 1988,   §§ 27-28, Series A no. 141-A; and   Klouvi v.   France , no.   30754/03, § 41, 30 June 2011; see also the recent judgment of the Court of Cassation no. 11341 of 11 November 2022, deposited with the court’s registry on 16 March 2023)? If so, at the time of the relevant facts, was there a clear obligation to provide evidence of the legitimate allocation of the public funds received, so as to effectively enable the applicants to reverse the burden of proof?   2.     Did the domestic courts require, for the purposes of punishment, a mental link disclosing an element of liability in the conduct of the perpetrators of the offence, in accordance with Article 7 of the Convention (see G.I.E.M S.R.L. and Others v. Italy [GC], nos. 1828/06 and 2 Others, §§   241-46, 28   June   2018)? In particular, in light of the burden of proof placed on the applicants as regards the use of the funds received, did the domestic courts analyse the intentional element with sufficient care? Concerning all applications 3.     Was the applicants’ conviction of “misappropriation of public funds” under Article 314 of the Criminal Code in compliance with Article 7 of the Convention? In particular, in light of the legal framework and the domestic case-law at the time of the relevant facts, was the domestic courts’ interpretation to the effect that the acts attributed to the applicants could engage a criminal liability foreseeable (see, mutatis mutandis , Litschauer v. Moldova, no. 25092/15, §§   29-35, 13 November 2018)?   In answering the questions, the parties are invited to provide an overview of the relevant case-law of domestic courts.   APPENDIX No. Application no. Case name Introduction date Applicant’s name Year of birth Place of residence Nationality Representative’s name Location Date of relevant facts Complaints for communication 1. 45381/21 Marracini v. Italy 07/09/2021 Sergio MARRACINI 1955 Cagliari Italian Giulio STERI Cagliari 30/07/2004 to 06/05/2008 Article 6 § 2 and Article 7 (questions 1 and 2) Article 7 (question 3) 2. 45382/21 Randazzo v. Italy 08/09/2021 Alberto RANDAZZO 1971 Cagliari Italian Francesco COCCO ORTU Cagliari 03/03/2008 to 18/03/2009 Article 6 § 2 and Article 7 (questions 1 and 2) Article 7 (question 3) 3. 46086/21 Randazzo v. Italy 02/09/2021 Vittorio RANDAZZO 1969 Cagliari Italian Gianfranco CARBONI Cagliari 03/03/2008 to 02/03/2009 Article 6 § 2 and Article 7 (questions 1 and 2) Article 7 (question 3) 4. 58649/21 Masia v. Italy 19/11/2021 Pierangelo MASIA 1947 Sassari Italian Benedetto BALLERO Cagliari 30/07/2004 to 05/09/2005; 15/05/2007 to 18/03/2009 Article 6 § 2 and Article 7 (questions 1 and 2) Article 7 (question 3) 5. 58654/21 Ibba v. Italy 19/11/2021 Raimondo IBBA 1950 Cagliari Italian Maurizio SCARPARO Cagliari 14/07/2004 to 18/03/2009 Article 6 § 2 and Article 7 (questions 1 and 2) Article 7 (question 3) 6. 59961/21 Atzeri v. Italy 20/11/2021 Giuseppe ATZERI 1949 Cagliari Italian Roberto LE PERA Cosence 09/09/2004 to 18/03/2009 Article 7 (question 3)