CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 septembre 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 } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 30 September 2024   FIRST SECTION Application no. 38732/22 Maria Carla MACOLA against Italy lodged on 3 August 2022 communicated on 9 September 2024 SUBJECT MATTER OF THE CASE The application concerns the administrative sanction of 163,000   euros imposed by the Bank of Italy on the applicant for corporate governance failures attributable to her as member of the board of directors of the Banca Popolare di Vicenza. The sanction was upheld by the Rome Court of Appeal and, in last instance, by the Court of Cassation with decision no.   12436/22 issued on 18 January 2022 and filed with the court’s registry on 19   April 2022. The applicant complains under Articles 7 of the Convention of the failure by the domestic courts to duly assess and establish a mental link between the conduct and the offence committed. Furthermore, she complains that her right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention, has been violated since, in applying the presumption set by Article 3 of Law no.   689/1981 on administrative sanctions, the domestic courts shifted the burden of proof on the defence.     QUESTIONS TO THE PARTIES 1.     Does the sanction imposed by domestic authorities fall within the concept of “penalty” under Article 7 of the Convention ( G.I.E.M. S.r.l. and Others v. Italy [GC], nos.   1828/06 and 2 others, §§ 210-1, 28 June 2018 and Grande Stevens and Others v. Italy , nos. 18640/10 and 4 others, §§   94-101, 4   March 2014)?   2.     If so, did the domestic courts duly establish, for the purposes of the adoption of the sanction, whether a mental link disclosing an element of liability in the conduct of the applicant materialised in the present case, as required under 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 ‑ 246, 28 June 2018 and Yüksel Yalçınkaya v. Türkiye [GC], no.   15669/20, §   242, 26   September 2023)?   3.     Did Article 3 of Law no. 689/1981 as interpreted by the domestic courts comply with the presumption of innocence guaranteed by Article   6 §   2 of the Convention? 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 ( Barberà,   Messegué and Jabardo v. Spain , 6 December 1988, §   77, Series   A no.   146; Telfner v.   Austria , no. 33501/96, § 15, 20 March 2001; and Klouvi v.   France , no.   30754/03, § 41, 30 June 2011)?