CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 juillet 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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sFFD057F { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify }   Published on   22 July 2024   FIRST SECTION Application no.   9163/23 Francesco MATACERA against Italy lodged on 20   February 2023 communicated on 3   July 2024 SUBJECT MATTER OF THE CASE The application concerns the foreseeability of the applicant’s conviction for the offence of aiding and abetting from the outside ( concorso esterno ) a mafia-type organisation (Articles   416 bis and 110 of the Criminal Code). At the material time (2011-2012) and as resulting from the interpretation given by the plenary Court of Cassation (judgment no.   33748 of 12   July 2005 ‘Mannino’ ), the offence at hand punished the conduct of whomever, without being a member, gave a concrete, specific, conscious and voluntary contribution to a mafia-type organisation, in so far as such contribution aimed at realizing the organisation’s program and had an actual impact on its preservation or strengthening. On 31   October 2018 the district court (later upheld by the court of appeal) convicted the applicant of the offence of concorso esterno and of other offences committed with the aggravating circumstance of having aimed at facilitating the activities of a mafia-type organisation (Section 7 of Law no.   203 of 1991). Throughout the proceedings, the applicant contested that the actions attributed to him constituted the offence of concorso esterno as interpreted by the abovementioned plenary Court of Cassation’s judgment no.   33748/2005.   While dismissing the applicant’s appeal on points of law, by judgment no.   39774 of 7   May 2022 the Court of Cassation, relying on its most recent case-law (namely, judgments no.   25619 of 25   June 2020 and no.   32902 of 23   June 2021, and plenary’s judgment no.   8545 of 19   December 2019) reasoned that the conduct of putting oneself at the mafia-type organisation’s disposal was sufficient to commit the offence of concorso esterno , regardless of the impact of such conduct on the realization of the aim pursued by the organisation. The applicant alleges of a violation of Article   7 of the Convention, arguing (i) that the offence of aiding and abetting from the outside ( concorso esterno ) a mafia-type organisation is not defined with sufficient clarity in the domestic framework and (ii) that the domestic courts departed from the principles set out by the plenary Court of Cassation in judgment no.   33748/2005, interpreting them in an unforeseeable extensive manner, to his detriment.   QUESTIONS TO THE PARTIES 1.     Was there a sufficiently clear and accessible legal basis for the applicant’s conviction, as required by Article   7   §   1 of the Convention? In particular, did the domestic law at the material time define with sufficient precision the criminal offence of aiding and abetting from the outside ( concorso esterno ) a mafia-type organisation (Articles   416 bis and 110 of the Criminal Code; compare Contrada v.   Italy (no. 3) , no.   66655/13, §   75, 14   April 2015)?   2.     In light of the well-established case-law at the material time (see, inter   alia , plenary Court of Cassation’s judgment no.   33748 of 12   July 2005) and of the facts reproached to the applicant, was his conviction in compliance with Article   7 (compare Liivik v.   Estonia , no.   12157/05, §§   99-101, 25   June 2009 and Parmak and Bakır v.   Turkey , nos.   22429/07 and 25195/07, §   73, 3   December 2019)? In particular:   2.1.     What are the elements of the offence of concorso esterno and were those elements present in the applicants’ case (see, mutatis mutandis , Yüksel Yalçınkaya v.   Türkiye [GC], no.   15669/20, §   267, 26   September   2023)?   2.2.     Was the interpretation of the offence at hand adopted by the Court of Cassation in 2021 and applied by domestic courts in respect of the applicant reasonably foreseeable for the applicant at the material time? ( see Del   Río   Prada v.   Spain [GC], no.   42750/09, §§   77-80 and 91-93, ECHR 2013; compare Contrada , cited above, §   59 and Dragotoniu and Militaru-Pidhorni v.   Romania , nos.   77193/01 and 77196/01, §   44, 24   May 2007)?