Article 52 - Scope and interpretation
Article 53 - Level of protection
Key facts of the case:
The case originated in three applications (nos. 1828/06, 34163/07 and 19029/11) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by four Italian companies and one Italian national: G.I.E.M. S.r.l., Hotel Promotion Bureau S.r.l. (company in administration), R.I.T.A. Sarda S.r.l. (company in administration), Falgest S.r.l. and Mr Filippo Gironda (“the applicants”), on 21 December 2005, 2 August 2007 and 23 December 2011 respectively.
Under Italian planning law, where the offence of “unlawful site development” is materially made out, the criminal court is bound, whether or not the defendants have been convicted, to confiscate the developed land (and any buildings thereon), even when it is in the possession of a third party (except one proving to have acted in good faith).
The applicants complained that they had been affected by confiscation measures without having been formally convicted (either because neither the company nor its directors had ever been prosecuted; or because only the directors had been prosecuted; or because the criminal proceedings had become time-barred – this being the case of Mr Gironda).
The applicants alleged violations of Article 6, Article 7 and Article 13 of the Convention, and also of Article 1 of Protocol No. 1.
Outcome of the case:
For these reasons, the Court
1) Decides, unanimously, to join the applications;
2) Declares, unanimously, the applications admissible as to the complaints under Article 6 §§ 1 and 2 and Article 13 of the Convention, and Article 1 of Protocol No. 1 to the Convention;
3) Declares, by a majority, the applications admissible as to the complaint under Article 7 of the Convention;
4) Holds, by fifteen votes to two, that there has been a violation of Article 7 of the Convention in respect of all the applicant companies;
5) Holds, by ten votes to seven, that there has been no violation of Article 7 of the Convention in respect of Mr Gironda;
6) Holds, unanimously, that there has been a violation of Article 1 of Protocol No. 1 to the Convention in respect of all the applicants;
7) Holds, by fifteen votes to two, that there is no need to decide whether there has been a violation of Article 6 § 1 of the Convention in respect of the company G.I.E.M. S.r.l., or of Article 13 in respect of the companies G.I.E.M. S.r.l. and Falgest S.r.l.;
8) Holds, by sixteen votes to one, that there has been a violation of Article 6 § 2 of the Convention in respect of Mr Gironda;
9) Holds, unanimously, that the question of the application of Article 41 of the Convention is not ready for decision;
accordingly,
(a) reserves the said question in whole;
(b) invites the Government and the applicants to submit, within three months from the date of notification of this judgment, their written observations on the matter and, in particular, to notify the Court of any agreement that they may reach;
(c) reserves the further procedure and delegates to the President of the Court the power to fix the same if need be.
Paragraphs referring to the EU Charter in the partly dissenting Opinion of Judge Pinto de Albuquerque:
90) At the end of the day, the “Maginot line” once drawn between Convention law and European Union law has evaporated. In fact, it was always an elusive defensive barrier against the full implementation of the Convention that inspired a false sense of security, but did not represent the truly imbricated nature of Convention law and European Union law with its Charter of Fundamental Rights. They both limit State sovereignty. Primacy over domestic law, even over constitutional law, and direct effect in the domestic legal order are also intrinsic features of the Convention system. This evidently means that all ordinary judges are “ordinary judges of the Convention” (giudici comuni della Convenzione), entitled to disapply domestic law contradicting Convention law, as interpreted by the Court. Such “diffuse control of conventionality” (sindacato diffuso di convenzionalità) not only furthers international comity, but also domestic judicial transparency, avoiding the temptation of a “forced” interpretation of domestic law according to the Convention which would lead to “masked disapplication” (disapplicazione mascherata). The convergence of Strasbourg and Luxembourg jurisprudence and the mutual influence of their legal standards contribute to the constitutionalisation of the European legal order. If any preponderance has to be given, Article 52 § 3 and Article 53 of the Charter themselves are crystal clear about it: they establish the axiological subordination of the Charter and consequently of all European law to the human rights standards set by the Convention, as interpreted by the Court.
