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 } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s96D82958 { margin-top:14pt; margin-bottom:3pt; text-indent:14.2pt; text-align:justify } Published on 15 July 2024   FIRST SECTION Application no. 16982/22 Paolo GINOCCHIO against Italy lodged on 25 March 2022 communicated on 18 June 2024 SUBJECT MATTER OF THE CASE The application concerns the alleged unlawfulness of the “inspection” of the applicant’s car, in the context of a pre-trial investigation. Relying on Article 8 of the Convention, the applicant argues that the “inspection” of his car was not “in accordance with the law”, within the meaning of the second paragraph of this provision. According to him: (i)   the measure was not authorised by a judicial authority nor subsequently approved by the public prosecutor; (ii) he was not informed of the possibility of being assisted by a lawyer; (iii) the subsequent approval given by the public prosecutor to the seizure undertaken in the course of the measure was not reasoned, in alleged breach of domestic law; and (iv)   the measure was not subjected to a sufficient ex post factum judicial scrutiny.     QUESTIONS TO THE PARTIES Did the “inspection” of the applicant’s car amount to an interference with his right to respect for private life, within the meaning of Article 8 §   1 of the Convention (see Ernst and Others v. Belgium , no.   33400/96, §   110, 15   July   2003, and Avaz Zeynalov v. Azerbaijan , nos.   37816/12 and   25260/14, § 78, 22   April   2021)? If so, was such interference “in accordance with the law” and “necessary in a democratic society”, within the meaning of the second paragraph of Article 8? The parties are requested take into account and clarify, inter alia , the following issues: (i)     whether the measure at issue was a “search” which was previously authorised by the public prosecutor, as indicated in the report submitted by the police to the Office of the Public Prosecutor of Genova on 24   November   2017, or an “inspection” undertaken proprio motu by the police pursuant to Article 354 of the Code of Criminal Procedure, as indicated in the minutes drafted by the police; (ii)     in the latter hypothesis, whether the investigating authorities elaborated on the pressing circumstances which allegedly necessitated an urgent “inspection” without a prior judicial warrant, and whether, in the light of the relevant domestic law and case-law, the measure had to be, and was, subject to a subsequent approval by the public prosecutor (see Kuzminas v.   Russia , no.   69810/11, §§ 23-24, 21 December 2021, and Tortladze v.   Georgia , no.   42371/08, § 66, 18   March   2021); (iii)     whether the applicant was afforded sufficient procedural safeguards, compatible with the fact that the measure was undertaken at the very early stage of the pre-trial investigation ( see Brazzi v. Italy , no. 57278/11, §   42, 27   September 2018, and Modestou v. Greece , no. 51693/13, §   44, 16   March   2017) and, in particular, whether he was informed of the right to be assisted by a lawyer; (iv)     whether the public prosecutor’s approval of the seizure undertaken in the course of the “inspection”, consisting in signing the record, was in accordance with domestic law (see Court of Cassation, Joint Sections, judgments no. 5876 of 28 January 2004, and no.   36072 of 19 April   2008) and with the principles established in the Court’s case-law (see   Gutsanovi v.   Bulgaria , no. 34529/10, § 223, ECHR 2013 (extracts)); (v)     whether the measure was subjected to a sufficient ex post factum judicial scrutiny, considering that, in accordance with the relevant domestic case-law (see Court of Cassation, judgment no. 5021 of 27   March   1996; Constitutional Court, judgments no. 219 of 22   May   2019, no.   252 of 21   October 2020, and no. 247 of 9 December 2022), the domestic courts found that it was not necessary to rule on the lawfulness of the “inspection”, since the seized items would have been admissible as evidence in any case (see Brazzi , cited above, § 45, with further references).