Decision of the ECHR of 23 February 2017 in the case of "De Tommaso (Italy)" (application no. 43395/09).
In 2009, the applicant was assisted in the preparation of the application. Subsequently, the application was and communicated to Italy.
In the case, the complaint on the lack of clarity in the legislation regarding the application of measures of "special police supervision" for persons dangerous to the society was successfully considered. The case involved a violation of the requirements of Article 2 of Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The Italian legislation provides for the possibility of applying "preventive" measures, including restrictions on various freedoms, to persons posing a threat to security and public morality (Law of 14 December 1956 No. 1423). The applicant had several convictions for crimes involving the sale of drugs and the illegal possession of weapons. In 2007, the prosecutor recommended, on the basis of suspicions about the applicant's behavior and the source of his income, that he be placed under "special police supervision" in accordance with the aforementioned law. In 2008, the court applied the required measure, having entrusted the applicant with the following duties for a period of two years: to report once a week to the police authority responsible for supervision, to find a job within a month, not to change the place of residence, to lead an honest and law-abiding life and not give cause for suspicions, to have no links with previously convicted persons subject to preventive or preventive measures, not to return home after 22.00 and not leave the house earlier than 6.00, except for the necessary cases that were limited to the condition of a favor temporary notification of authorities. In addition, the applicant was forbidden to store and carry weapons, visit bars, nightclubs, arcade halls or brothels, public meetings, use a mobile phone or radio communications. The applicant was required to always carry a document listing these duties (carta precettiva), and present it to the police authority at his request. Seven months later, this decision was overturned by the appellate court, which indicated that during the application of this measure the danger posed by the applicant was not justified by any ongoing criminal activity on his part.
ISSUES OF LAW
Concerning compliance with Article 5 of the Convention. Article 5 of the Convention did not deal with the mere restriction of freedom of movement, which was governed by Article 2 of Protocol No. 4 to the Convention. As an exception in the case of Guzzardi v. Italy (complaint No. 7367/76, judgment of 6 November 1980), the Court nevertheless indicated that measures of this nature could be considered to constitute imprisonment with taking into account the extremely small area that limited the applicant's stay, the almost constant supervision to which he was subjected, and the fact that it was almost impossible for him to maintain social contacts. In all subsequent cases, the Court did not find that there were comparable special circumstances, including when the applicants were forbidden to leave the house at night.
In the present case, the following reasons compelled the Court to establish that these measures did not constitute deprivation of liberty: (a) the applicant was not compelled to live in a restricted area; (b) as he maintained the freedom to leave home during the day, he could lead public life and maintain relations with the outside world, (c) the prohibition to leave the house at night, except in urgent cases (from 22.00 to 6.00), could not be equated to house arrest, and (d) he did not request permission from the authorities to leave his place of residence. Consequently, Article 5 of the Convention was not applicable in the present case.
The complaint was declared inadmissible for consideration on the merits (adopted by a majority vote).
Concerning compliance with Article 2 of Protocol No. 4 to the Convention. These measures had a legal basis, namely Law No. 1423/1956 in the interpretation of the decisions of the Constitutional Court.
However, in the Court's view, the application of preventive measures to the applicant was not sufficiently predictable and was not accompanied by adequate safeguards against possible abuses. This law was formulated in unclear and overly broad terms, being insufficiently clear and precise with regard to persons to whom preventive measures were applicable (article 1 of the law), and the content of some such measures (articles 3 and 5 of the law).
(a) Persons to whom measures are directed. On the basis of the following considerations, the Court concludes that in connection with the finding that because of the lack of a clear definition of the scope and manner of exercising the widest discretion to which the courts are vested, the law did not provide sufficient protection against arbitrary interference and did not allow the applicant to regulate their behavior and to foresee to a certain degree the application of preventive measures in relation to it.
(i) In its recent case-law, the Constitutional Court of Italy indicated in response to the allegation that the relevant provisions of the law were not accurate enough that a mere affiliation to one of the categories of persons referred to in article 1 of the Law was not sufficient to justify the application of the preventive measure , and therefore preventive measures could not be taken on the basis of mere suspicion.
Despite these instructions, it remains a fact that neither the law nor the Constitutional Court clearly defined "factual evidence" or specific behaviors that must be taken into account to assess a threat to society from a particular person.
(ii) In the present case, the court of first instance based its decision on the existence of "active" criminal trends in the applicant, but did not indicate specific conduct or criminal activity on his part. Moreover, the court referred to the fact that the applicant did not have a "certain and lawful occupation" and that his life was characterized by regular connections with known local criminals and committing offenses as a basis for a preventive measure. In other words, the court of first instance based its motivation on the assumption of "criminal tendencies", criteria that the Constitutional Court has already identified as insufficient.
(b) The content of the measures. (i) Inaccurate definition of certain duties. In addition to allowing the courts to apply "any other measures deemed necessary", taking into account the requirements for the protection of society, the law provided for the use of unclear and unclear obligations such as "to lead an honest and law-abiding life" and "not to give rise to suspicion". The case law of the Constitutional Court did not eliminate these shortcomings. Referring to vague concepts or to the whole legal system of Italy, the Constitutional Court did not provide additional explanations for specific norms, non-observance of which would be an additional indication of a person's danger to society.
(ii) Prohibition of attending public meetings. The measures provided for by law and applied to the applicant also included a ban on visiting public meetings. This was essentially an absolute prohibition. The law did not specify temporal or spatial limitations or the possibility of limiting this fundamental freedom, leaving this question entirely to the discretion of the judge without specifying with sufficient clarity the scope of such discretion and the way it is implemented.
The case involved a violation of the requirements of Article 2 of Protocol No. 4 to the Convention (unanimously adopted).
In the application of Article 37 § 1 of the Convention. The respondent State submitted a unilateral statement in which it was acknowledged that there had been a violation of Article 6 § 1 of the Convention in respect of the applicant in connection with the lack of a public hearing in his case and had been obliged to pay the applicant a sum of money in respect of procedural costs (but not compensation for non-pecuniary damage ). However, unlike preventive measures concerning property, there were no previous decisions on the applicability of Article 6 § 1 of the Convention to the proceedings for the application of preventive measures to persons, as in the present case, and, if so, whether the hearings on such matters should be public.
The requirement to cease production was rejected (taken unanimously).
Concerning compliance with article 6, paragraph 1, of the Convention. (a) Applicability. The criminal-legal aspect of Article 6 § 1 of the Convention was not applicable to the present case, since special supervision was not comparable to the criminal sanction, since the proceedings concerning the applicant did not include consideration of the "criminal charge". However, in the case-law of the European Court, one can see a shift towards the application of the civil law aspect of Article 6 of the Convention to cases that initially may not seem to affect civil law, but may have direct and significant consequences for private law belonging to a person (see the Court's judgment in the case of Alexandre v. Portugal of 20 November 2012, complaint No. 33197/09, and the judgment of the Court of Justice in the case of Pocius v. Lithuania of 6 July 2010, complaint No. 35601/04).
In the present case, the obligations entailing removal from the place of residence, the residence of the house from 22.00 to 6.00, the non-attendance of public meetings and the non-use of mobile phones or radio communications equipment undoubtedly belonged to the sphere of personal rights and therefore had a civil character (see the necessary amendments to the Resolution of the Grand Chamber Of the European Court of Justice in the case of Enea v. Italy of 17 September 2009, complaint No. 74912/01, and Ganci v. Italy, judgment of 30 October 2003 ., complaint No. 41576/98). A "real and serious dispute" arose with respect to these rights, when the court of first instance placed the applicant under special surveillance, rejecting his arguments. The dispute was finally resolved by the appellate court, which recognized that the preventive measure applied to the applicant was illegal.
The complaint was declared admissible for consideration on the merits (unanimously).
(b) Merits (absence of public hearing). The applicant did not have the opportunity to appeal the measure during a public hearing. The Court recalled that the duty to hold a public hearing was not absolute, because the circumstances that could justify the waiver of the hearing were largely dependent on the nature of the issues to be resolved by the domestic courts. The circumstances of the present case dictated a public hearing, as the courts had to assess aspects such as the nature of the applicant, his behavior and the risks that were crucial to the application of the preventive measure.
The violation of the requirements of Article 6 of the Convention (unanimously) was committed.
The Court also ruled with 14 votes in favor and three against it that the requirements of Article 6 § 1 of the Convention regarding the fairness of the proceedings, especially with regard to the assessment of evidence by the first-instance court, were not violated, and by 12 votes in favor and five against the fact that the requirements of Article 13 of the Convention were not violated in connection with Article 2 of Protocol No. 4 to the Convention.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 5,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.