17
The European Court of Human Rights has examined the issues of conformity of the Convention with
domestic legislations of a number of countries of the Council of Europe that envisage
the application of
coercive measures on confiscation of criminal property.
Thus, in the
Raimondo v. Italy
8
case (Judgement of 22 February 1994), the Court examined the conformity
of the Convention with Italian laws aimed at the fight against mafia and application of confiscation in
relevant cases. The applicant was accused of mafia activities. In January 1986, court of the first instance
acquitted the applicant due to the lack of evidentiary support, while the court of appeal acquitted him due to
the failure to establish the actual circumstances of the crime in January 1987. Referring to
provisions of
Article 1 of the Protocol No. 1 to the Convention, the applicant waged a grievance that 16 real estate items
and 6 automobiles were seized on 13 May 1985 and that some of the mentioned property was confiscated
based on the court decision dated 16 October 1986. With respect to seizure, the European Court noted that,
in accordance
with the law, the intention was not to deprive the applicant of his property, but rather to prevent
its use (control the use of property as per paragraph 2 of Article 1 of the Protocol No. 1).
In accordance with the Italian law, that was a temporary measure in order to secure the opportunity for future
confiscation of the property that, apparently, was the fruit of unlawful activity performed to the detriment of
the society. The measure in itself, therefore, was justified
by public interest and, taking into account the
particular danger posed by the economic might of such ‘organisation’ as the mafia, it is hard to say the
measure was disproportionate to its cause. In view of this, the Court did not find a violation of Article 1 of
the Protocol #1 in terms of application of the measures on seizure of applicant’s property.
With respect to confiscation of a number of property items, which took place on 16 October 1985, the
European Court did not find a violation of the Article either. That said, the Court proceeded from the basis
that, in accordance with Italian judiciary practice, confiscation of such nature did not entail the transfer of
title of ownership to the State until the final court decision in that regard. Such final decision was not rendered
in that case, since the applicant appealed the order dated 16 October 1985
in the court of appeal, and,
therefore, the issue was about controlling the use of property and such control measure was proportionate to
its cause, considering also that it entailed no further limitations compared to seizure. However, the European
Court did find a violation of Article 1 of the Protocol No. 1 with respect to the fact that, after, on 2 December
1986, the court of appeal had taken the decision on resumption of the whole property to
its owners following
the removal of the relevant registry records, it took from 7 months up to 4 years and 8 months for the
authorities to resolve the legal status of that property. Such measure was not based on the law and there was
no need to execute control over the property for the sake of public interest within the meaning of Article 1
of the Protocol No. 1.
In the
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