EHRM, 28-06-2018, nr. 1828/06, nr. 34163/07, nr. 19029/1

The offence of ‘material’ unlawful site development refers to an urban development project involving the construction of buildings or amenities, or urban development projects liable to cause a given territory to be used in a different manner from that laid down in the planning regulations. There are two different forms of unlawful site development in this category, depending on the types of regulations breached:

Prior to judgment no. 5115 (2002) of the plenary Court of Cassation (Salvini and Others), there was some controversy as to the notion of the substantive type of ‘material’ unlawful site development. According to a line of Court of Cassation case-law, this type of development was not unlawful where it had been authorised by the competent authorities (Court of Cassation, 1988, Brunotti, and Court of Cassation, no. 6094, 1991, Ligresti and Others). Land planning was regulated by a series of administrative acts which, on the basis of the broader land-use plan, led to the adoption of decisions on individual cases. The criminal courts had no power to waive the implementation of the administrative decision authorising individual projects, save where it was deemed non-existent or invalid (Court of Cassation, Ligresti and Others, cited above). In so far as the unlawful site development encroached on the powers of the public authorities in matters of land planning, the offence was made out where a new developed area was created without any preventive supervision on the part of the municipality (Court of Cassation, 1980, Peta, and Court of Cassation, Brunotti, cited above). In conclusion, under this approach the development was unlawful only where it was not authorised, and not where, despite planning permission, the activity was deemed inconsistent with other planning regulations.

In its judgment no. 5115 of 2002, however, the plenary Court of Cassation rejected this line of case-law in favour of a second approach, which is now well established, whereby the offence is made out not only where the construction is under way in the absence or in breach of any planning permission, but also in the case of permission which is not in conformity with other planning regulations, in particular at regional or national level (‘substantive’ material offence of unlawful site development). According to that line of case-law, the ‘procedural’ material offence of unlawful site development should be regarded as a residual hypothesis in relation to ‘contractual’ unlawful site development.

The offence of unlawful site development is also made out where a development project is implemented by dividing up and selling (or otherwise fragmenting) land, creating plots which, by their very nature, clearly demonstrate their actual intended use, which is different from that provided for by the planning regulations. In this scenario, the development project exclusively stems from a legal procedure rather than a physical activity (building work) (Court of Cassation, 2009, Quarta). Where legal acts are combined with building activity, the status of ‘contractual’ development shifts to that of ‘hybrid’ unlawful site development (see Court of Cassation, no. 618, 2012). Contractual unlawful site development is an offence which involves multiple perpetrators, that is to say, at least the vendor and the purchaser of the plots of land.

This type of unlawful site development comprises the legal activity of dividing up a piece of land into plots and the ensuing building activity (Court of Cassation, no. 6080, 2008, Casile; Court of Cassation no. 45732, 2012, Farabegoli; and Court of Cassation, no. 3454, 2013, Martino).

Lastly, case-law has included in the concept of unlawful development the scenario of changing the intended use of buildings erected in a zone already covered by an approved site development plan. The change may, for instance, involve splitting up a tourist/hotel complex and selling the units separately as private dwellings. Such a change of intended use must be such as to affect the land-use plan. This mode of development fits into either the material or the contractual category of site development depending on whether the emphasis is placed on the existence of constructions (material element) or on the manner in which the development project is implemented, that is to say by a legal act (see, to that effect, Court of Cassation, no. 20569, 2015). Even though this mode of development does not involve unauthorised building activity, case-law considers that it is one of the situations provided for in Article 30 of the Construction Code, given that the separate sale of buildings necessarily entails dividing up the land on which they are built (Farabegoli, cited above).

The Court reiterates that under Article 35 § 3 (a) an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

The Court finds that the applicant company acknowledged that it had taken its case to the civil courts and had not informed the Court of that fact when it lodged its application in Strasbourg. Having regard to the explanation provided by G.I.E.M. S.r.l., namely that the civil proceedings still pending before the domestic courts and the present application had different objectives, the Court finds it impossible to accept the argument put forward by the Government.

The omission in question cannot be seen as an attempt to conceal from the Court any essential information or, in any event, information that would be relevant to its decision. The Bari District Court has been requested to provide redress for any damage that might stem from the acts of the Bari municipal authority, which is alleged to have misled the applicant company as to the use of the relevant land for building, whereas the planning regulations prohibited any development activity (see paragraph 42 above). However, the application lodged in Strasbourg sought to obtain a finding that there had been violations of Article 7 of the Convention and of Article 1 of Protocol No. 1 on account of a confiscation measure that the applicant company regarded as devoid of legal basis.

In conclusion, not having found any fraudulent intent on the part of the applicant company, the Court dismisses the objection that there has been an abuse of the right of application.

The Court reiterates that the purpose of the rule on the exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Paksas v. Lithuania [GC], no. 34932/04, § 75, ECHR 2011 (extracts)). At the relevant time, the company G.I.E.M. S.r.l. gave the domestic courts the possibility of examining its complaints and of remedying the alleged violations. The Court observes, however, that the civil proceedings brought by the applicant company on 7 April 2005 (see paragraph 43 above) pursued a different purpose from that of the present application.

As regards the remedy under Law no. 102/2009, the government's objection cannot be upheld, as the land was returned to the applicant company not as a result of a judgment of the Court finding a violation of its rights (see paragraph 137 above), but following proceedings brought by the Bari municipal authority in October 2012 (see paragraph 42 above). The Court therefore dismisses the objection that the company G.I.E.M. S.r.l. failed to exhaust domestic remedies.

The applicant company referred to the facts and grounds set out by the Court in its admissibility decision in Sud Fondi S.r.l. and Others (cited above) and concluded that the confiscation of its land, even though there had been no illegal activity on its part or on the part of its legal representative, had to be regarded as a penalty within the meaning of the Strasbourg case-law.

While accepting that, according to national law and the settled domestic case-law, confiscation for unlawful site development was regarded as an administrative sanction, the applicant companies pointed out that the Court had nevertheless clearly indicated, in its admissibility decision in Sud Fondi S.r.l. and Others (cited above), that the confiscation provided for in Article 44 § 2 of the Construction Code must be classified as, in effect, a criminal sanction and must therefore observe the fundamental principles governing criminal-law decisions, starting with the principle of legality under Article 7 of the Convention.

The applicant companies took the view that in spite of the statements of the Italian courts in the present case, the confiscation of ‘unlawfully developed’ land could not be regarded as a mere administrative sanction not subject to the principle of personal criminal liability; on the contrary, it had to comply with the substantive and procedural rules governing the establishment of such liability.

In the applicants' view, the ‘criminal’ nature of this type of confiscation and therefore the applicability of Article 7, as confirmed by the Court in its Varvara judgment (cited above), were self-evident.

These applicants also argued that the impugned confiscation could not be regarded merely as an administrative sanction with the result that the principle of individual criminal liability was not applicable.

They observed that in spite of the court's position on the subject and notwithstanding the obligation on the national courts to follow the Strasbourg case-law, the Italian Court of Cassation had maintained its previous line of interpretation, going so far as to state that a confiscation measure had to be enforced even if there was no conviction because the prosecution of the offence was statute-barred, when the court had established the mental and material elements of the offence of unlawful site development.

The Court reiterates that the concept of a ‘penalty’ in Article 7 has an autonomous meaning. To render the protection offered by this Article effective, the Court must remain free to go behind appearances and assess for itself whether a particular measure amounts in substance to a ‘penalty’ within the meaning of this provision (see Welch v. the United Kingdom, 9 February 1995, § 27, Series A no. 307-A, and Jamil v. France, 8 June 1995, § 30, Series A no. 317-B).

The wording of Article 7 § 1, second sentence, indicates that the starting-point in any assessment of the existence of a ‘penalty’ is whether the measure in question is imposed following a decision that a person is guilty of a criminal offence. However, other factors may also be taken into account as relevant in this connection, namely the nature and purpose of the measure in question; its characterisation under national law; the procedures involved in the making and implementation of the measure; and its severity (see Welch, cited above, § 28; Jamil, cited above, § 31; Kafkaris, cited above, § 142; M. v. Germany, no. 19359/04, § 120, ECHR 2009; Del Río Prada v. Spain [GC], no. 42750/09, § 82, ECHR 2013; and Société Oxygène Plus v. France (dec.), no. 76959/11, § 47, 17 May 2016).

In the case of Sud Fondi S.r.l. and Others (admissibility decision of 30 August 2007, cited above), the Court took the view that the confiscation for unlawful site development imposed on the applicants could be regarded as a ‘penalty’ within the meaning of Article 7 of the Convention in spite of the fact that no criminal conviction had been handed down against the applicant companies or their representatives. For that purpose it relied on the fact that the confiscation in question was connected to a ‘criminal offence’ based on general legal provisions; that the material illegality of the developments had been established by criminal courts; that the sanction provided for by section 19 of Law no. 47 of 1985 sought mainly to deter, by way of punishment, further breaches of the statutory conditions; that the 2001 Construction Code classified confiscation for unlawful site development among the criminal sanctions; and, lastly, that the sanction was one of a certain severity. In its Varvara judgment (cited above, § 51), the Court confirmed that finding.

In the present case the applicability of Article 7 was denied by the Government.

The Court must therefore ascertain whether the impugned confiscations constitute ‘penalties’ within the meaning of Article 7 of the Convention. To do so it will apply the criteria which stem from the general principles reiterated above.

Having regard to the foregoing, the Court concludes that the impugned confiscation measures can be regarded as ‘penalties’ within the meaning of Article 7 of the Convention. This conclusion, which is the result of the autonomous interpretation of the notion of ‘penalty’ within the meaning of Article 7, entails the applicability of that provision, even in the absence of criminal proceedings within the meaning of Article 6. Nevertheless, and as the Italian Constitutional Court emphasised in its judgment no. 49 of 2015 (see paragraph 133 above), it does not rule out the possibility for the domestic authorities to impose ‘penalties’ through procedures other than those classified as criminal under domestic law.

The Court further finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible.

The parties reiterated, in substance, the arguments that they had submitted on the applicability of Article 7.

In particular, the applicants were all of the view that, as the Court had noted in its Sud Fondi S.r.l. and Others (merits) and Varvara judgments (both cited above), section 18 of Law no. 47/1985 did not meet the requirement of foreseeability since it provided that there would be an unlawful site development not only when land was transformed in breach of local planning regulations, but also where those transformations infringed regional or national law. The Italian Court of Cassation itself had acknowledged that the existing legislation was obscure and poorly worded. The applicants further observed that the sanction of confiscation had been imposed in the absence of any criminally reprehensible conduct or any liability on the part of the applicant companies. As to Mr Gironda, the measure of deprivation had been imposed following dismissal of the case as statute-barred by the Court of Cassation, which, on quashing the judgment of the Court of Appeal, had clearly reproached the applicant for his conduct but without finding any ‘substantive’ liability in the operative part of its judgment.

The Government observed that, in the Sud Fondi S.r.l. and Others judgment (merits, cited above), the Court had found a violation of Article 7 of the Convention on the ground that confiscation was not a foreseeable consequence of the applicant companies' conduct (they had been acquitted as the courts had not found them liable for the offence in question) and that the confiscation measure imposed on them had not therefore been provided for by law for the purposes of Article 7 of the Convention.

In the government's submission, the currently applicable legislation and Italian case-law were fully compliant with Article 7 as interpreted by the Court, for the following reasons:

Accordingly, the Government asked the Court to find that Article 7 had been complied with in this respect in the present case.

The Court notes that in its Sud Fondi S.r.l. and Others judgment (merits, cited above) it reiterated the importance of the principle that offences and penalties must be provided for by law and the ensuing requirement of foreseeability of the effects of the criminal law (ibid., §§ 105-10). Applying this notion to that particular case, it agreed with the findings of the Italian Court of Cassation that, as the rules that had been breached lacked foreseeability, the accused had committed an unavoidable and excusable error, thus ruling out the mental element that had to be established for the offence to be made out, and their acquittal was justified (ibid., §§ 111-14). The Court further found as follows:

The Grand Chamber endorses the analysis to the effect that the rationale of the sentence and punishment, and the ‘guilty’ concept (in the English version) with the corresponding notion of ‘personne coupable’ (in the French version), support an interpretation whereby Article 7 requires, for the purposes of punishment, a mental link. As is explained in the Sud Fondi S.r.l. and Others judgment (merits, cited above), the principle that offences and sanctions must be provided for by law entails that criminal law must clearly define the offences and the sanctions by which they are punished, such as to be accessible and foreseeable in its effects. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable. This also means that, in principle, a measure can only be regarded as a penalty within the meaning of Article 7 where an element of personal liability on the part of the offender has been established. There is certainly, as the Italian Court of Cassation noted in the case of Sud Fondi S.r.l. and Others (see paragraph 112 of the court's judgment in that case, ibid.), a clear correlation between the degree of foreseeability of a criminal-law provision and the personal liability of the offender. The Grand Chamber thus shares the Chamber's findings in that case to the effect that punishment under Article 7 requires the existence of a mental link through which an element of liability may be detected in the conduct of the person who physically committed the offence (ibid., § 116).

Nevertheless, and as the Court indicated in its Varvara judgment (cited above, § 70), this requirement does not preclude the existence of certain forms of objective liability stemming from presumptions of liability, provided they comply with the Convention. In this connection, the Court would refer to its case-law under Article 6 § 2 of the Convention to the effect that in principle the Contracting States remain free to apply the criminal law to an act where it is not carried out in the normal exercise of one of the rights protected under the Convention (see Engel and Others v. the Netherlands, 8 June 1976, § 81, Series A no. 22, p. 34) and, accordingly, to define the constituent elements of the resulting offence. In particular, the Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence. Examples of such offences may be found in the laws of the Contracting States. Presumptions of fact or of law operate in every legal system. The Convention does not prohibit such presumptions in principle; it does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. According to the case-law, these limits will be overstepped where a presumption has the effect of making it impossible for an individual to exonerate himself from the accusations against him, thus depriving him of the benefit of Article 6 § 2 of the Convention (see, among other authorities, Salabiaku v. France, 7 October 1988, §§ 27-28, Series A no. 141-A; Janosevic v. Sweden, no. 34619/97, § 68; ECHR 2002 — VII and Klouvi v. France, no. 30754/03, § 48, 30 June 2011).

The Court reiterates that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see, among other authorities, mutatis mutandis, Hammerton v. the United Kingdom, no. 6287/10, § 84, 17 March 2016). Having regard to the common ground between Article 7 and Article 6 § 2, in their respective areas, namely that they protect the right of any individual not to be punished without his personal liability, involving a mental link with the offence, having been duly established, the Court finds that the case-law described above applies mutatis mutandis under Article 7.

Moreover, the Court notes that, following the Sud Fondi S.r.l. and Others judgment (merits, cited above), the domestic courts accepted this reasoning and altered their case-law accordingly in two significant aspects. First, even in cases of dismissal where prosecution of the offence has become statute-barred, in order to implement a confiscation measure it must be demonstrated that the offence is nevertheless made out, based on both the material element and the mental element. Secondly, since the Sud Fondi S.r.l. and Others judgment (ibid.), the domestic courts have refrained from imposing that measure on bona fide third parties.

Having regard to the foregoing, the Court finds that in the present case Article 7 required that the impugned confiscation measures had to be foreseeable for the applicants and precluded any decision to impose those measures on the applicants in the absence of a mental link disclosing an element of liability in their conduct.

The question arising at this juncture is therefore whether this requirement could have been fulfilled, bearing in mind that (a) none of the applicants had been formally convicted in that connection, and (b) the applicant companies were never parties to the proceedings in question. The Court will now examine each of these points.

The applicant companies pointed out that they had not been parties to the criminal proceedings in respect of the offence of unlawful site development and that, moreover, this had not been possible for them as a matter of law. As regards the company G.I.E.M. S.r.l. in particular, its representatives had not even been prosecuted, and the confiscation of its property had merely been the result of its automatic incorporation into the Punta Perotti site.

The Government observed that the possibility of setting up a company had the undeniable advantage of confining the business risk to the legal entity created expressly to carry on this activity. In their view, a shareholder in a legal entity thus assumed risks only to the extent of his contribution to the company and it was the company itself which necessarily sustained the negative consequences of a confiscation measure. The Government argued that, unlike G.I.E.M. S.r.l., the companies Hotel Promotion Bureau S.r.l., R.I.T.A. Sarda S.r.l. and Falgest S.r.l. could clearly not claim to have been acting in good faith, because they were ‘legal instruments in the hands of their shareholders’.

The Court notes that Italian law ascribes to limited-liability companies, such as the applicant companies, a legal personality that is distinct from that of the companies' directors or shareholders. In principle it is thus necessary to ascertain whether the individuals involved in the proceedings before the domestic courts were acting and were tried in a personal capacity or as legal representatives of the companies concerned.

However, the Court observes that under Italian law, as in force at the time, in accordance with the principle societas delinquere non potest (‘a legal entity cannot commit a criminal offence’), limited-liability companies could not, as such, be parties to criminal proceedings, in spite of their distinct legal personality. Accordingly, they could not be legally represented in the context of the relevant criminal proceedings in the present case, even though the conduct (and resulting liability) of their respective legal representatives was directly attributed to them. The companies thus remained third parties in relation to those proceedings, as confirmed by the judgments of the domestic courts.

The Court has always recognised the principle that limited liability companies have a distinct legal personality, finding for example in Agrotexim and Others v. Greece (24 October 1995, § 66, Series A no. 330-A):

The Court applied this case-law in its decision on the admissibility of the applications lodged by Hotel Promotion Bureau S.r.l. and R.I.T.A. Sarda S.r.l., in dismissing the complaints raised, in their own names, by the director and/or shareholders of the applicant companies under Article 7 of the Convention and Article 1 of Protocol No. 1, on account of the confiscation. Similarly, the complaints submitted by the applicant companies concerning the violation of Article 6 were declared inadmissible in the decisions on admissibility, in which the Court stated that as the impugned proceedings had not concerned Falgest S.r.l., Hotel Promotion Bureau S.r.l. or R.I.T.A. Sarda S.r.l., those applicant companies could not be considered victims of the alleged violation.

In the instant case, therefore, the question to be addressed concerns the imposition of a criminal sanction on legal entities which, on account of their distinct legal personality, have not been parties to any kind of proceedings (whether criminal, administrative, civil, etc.).

Under Italian law, confiscation of property is a sanction imposed by a criminal court as an automatic consequence of a finding of the offence of unlawful site development. No distinction is drawn for the situation where the owner of the property is a company, which cannot commit a criminal offence according to Italian law (see paragraph 266 above).

The Court has already ruled, in the Varvara judgment (cited above, § 65), that a ‘consequence of cardinal importance flows from the principle of legality in criminal law, namely a prohibition on punishing a person where the offence has been committed by another’. In support of this argument the Court held as follows:

The Grand Chamber finds it appropriate to confirm the above reasoning. In the instant case, the companies G.I.E.M. S.r.l., Hotel Promotion Bureau S.r.l., R.I.T.A. Sarda S.r.l. and Falgest S.r.l. were not parties to proceedings of any kind. Only the legal representative of Hotel Promotion Bureau S.r.l. and Falgest S.r.l. and two shareholders in R.I.T.A. Sarda S.r.l. were indicted in a personal capacity. Thus the authorities imposed a sanction on the applicant companies for the actions of third parties, that is to say, except in the case of G.I.E.M. S.r.l., the actions of their legal representatives and/or shareholders acting in a personal capacity.

Lastly, in response to the government's allegation that Hotel Promotion Bureau, R.I.T.A. Sarda S.r.l. and Falgest had acted in bad faith (see paragraph 264 above), the Court notes that there is nothing in the case file to suggest that the ownership of the property had been transferred to the applicant companies by their legal representatives (see, to that effect, Article 6 of Directive 2014/42/EU, paragraph 152 above).

In conclusion, having regard to the principle that a person cannot be punished for an act engaging the criminal liability of another, a confiscation measure applied, as in the present case, to individuals or legal entities which are not parties to the proceedings, is incompatible with Article 7 of the Convention.

The applicant company G.I.E.M. S.r.l. submitted that the confiscation measure constituted a deprivation of property. It argued that, by allowing, through a general formulation, the extension of such confiscation beyond the land directly concerned by the unlawful development, section 19 of Law no. 47/1985 infringed Article 1 of Protocol No. 1. That Article allowed legitimate interference only on the basis of a law that was accessible, precise and foreseeable. The applicant company took the view that section 19 should have indicated in greater detail the limits within which it was possible to decide on confiscation in relation to the established facts, by indicating, according to a principle of reason and proportionality, the extent of the land that could be confiscated in relation to the buildings erected thereon and the unlawful conduct as established in material and mental terms. It explained that the lack of clarity and precision of the national law, and of the regional law, which had been regarded by the Court as ‘obscure and poorly worded’ in its Sud Fondi S.r.l. and Others judgment (merits, cited above), had made it possible to confiscate land of an area that was three times as large as that covered by the planning permission issued by the Bari municipal authority. An even more serious consequence was that this had also affected the applicant company's property even though the company had not been involved in the acts in respect of which the criminal proceedings had been brought.

As to the proportionality of the impugned measure, the applicant company submitted that the transformation work linked to the construction by the owners of land adjacent to its own should, at most, have obliged it to forfeit the transformed land alone.

The companies Hotel Promotion Bureau S.r.l. and R.I.T.A. Sarda S.r.l. pointed out that the Court, in its case-law, had attached particular weight to the requirement of legality. In the Varvara judgment (cited above), but also in the Sud Fondi S.r.l. and Others judgment (merits, cited above), it had established that the offence in respect of which the penalty had been imposed had no legal basis, in breach of the Convention, and that the penalty imposed on the applicant had been arbitrary. That finding had then led the Court to state that the interference with the applicant's right to the peaceful enjoyment of his possessions was equally arbitrary and that there had been a violation of Article 1 of Protocol No. 1. Moreover, the applicant companies took the view that a State's interference with the right to enjoyment of property had to strike a fair balance between the demands of the general interest of the community and the imperatives of guaranteeing the individual's fundamental rights. They explained that, in the present case, the extent of the confiscation affecting the property had to be taken into account: the eighty-eight plots that were built upon totalled 15,920 sq. m, while the confiscation had affected an additional area that was 14.5 times as large.

The company Falgest S.r.l. and Mr Gironda argued that the confiscation imposed on them constituted a deprivation of property within the meaning of the first paragraph of Article 1 of Protocol No. 1.

In their submission, the impugned measure ordered by the Court of Cassation was clearly illegal and arbitrary and, in any event, devoid of a sufficiently clear, accessible and foreseeable legal basis. The applicants referred to the finding in the Varvara judgment (cited above) to the effect that the illegality in criminal terms of the sanction for unlawful site development that had been found under Article 7 of the Convention entailed the illegality ‘in property terms’ of the confiscation under Article 1 of Protocol No. 1.

Should the Court take the view that the impugned confiscation had a legal basis, the applicants argued that it was disproportionate to the aim pursued and that it had not struck a fair balance between the interests at stake. In a case involving mere reservation documents for the future acquisition by private purchasers of individual housing units covering less than 11% of the area in question, the confiscation of the entire property had not constituted a proportionate measure. The general interest could have been served by less intrusive measures.

The Government submitted that the confiscation measures in respect of the applicants' property had been ordered in accordance with the second paragraph of Article 1 of Protocol No. 1 and that the resulting interference did not constitute a violation of that provision. The impugned measures had a legal basis, pursued a legitimate aim and were proportionate. As to the proportionality aspect, the Government explained that less restrictive measures could not have been envisaged. In their view, it would have been technically very difficult, if not impossible, to limit the confiscation merely to the areas that had been built upon and to have separated those areas from the undeveloped land. In the government's view, a purely partial confiscation of the land would have frustrated the legitimate aims pursued by the State, namely to ensure the conformity of the plots in question with the planning regulations, environmental protection and the punishment of those responsible for the unlawful land transformation. In any event, the Government argued that the State had to be afforded a broad margin of appreciation as to the choice of instruments to be used in order to find the best solutions to guarantee environmental protection.

As regards the first applicant company, the Government observed that the confiscated land had been returned.

As to the property of the companies Hotel Promotion Bureau S.r.l. and R.I.T.A. Sarda S.r.l, the Government argued that the confiscation was proportionate, as only sixteen of the eighty-eight housing units had been confiscated.

Lastly, as to the company Falgest S.r.l., the Government disputed the percentage of undeveloped land that had been confiscated and argued that it was not 89% but less than 50% of the whole property.

Prior to 200741., the Consulta accorded to the Convention the rank of statute law in the Italian legal order, because the Convention had been implemented by statute, i.e., Law no. 848 of 4 August 195542.. On the basis of a dualist approach to international law, the Constitutional Court affirmed that Convention provisions had the same status as the statute which had incorporated it into the domestic legal order43.. Yet simultaneously the Constitutional Court admitted that ‘the interpretation in conformity with the Constitution is supported by significant regulatory instructions, including those with supranational origins’, referring to the Convention and the International Covenant on Civil and Political Rights44.. Furthermore, in order to enrich the interpretation of the constitutional catalogue of fundamental rights, the Constitutional Court invoked not only Convention provisions, but also the Court's case-law45.. Nevertheless, the impact of the Convention in the constitutional landscape remained very limited46.. This did not hinder the ordinary judges47. from occasionally applying Convention law to the detriment of the conflicting domestic statutory provision48..

In its seminal judgments no. 348 and no. 349 of 2007, also known as the ‘twin judgments’ (sentenze gemelle), the Constitutional Court reacted to this move of the ordinary judges, taking into account the new text of Article 117 of the Constitution, as amended by Constitutional Law no. 3 of 18 October 2001, which requires the legislature to comply with international obligations49.. On this constitutional basis, the Constitutional Court took the view that the Convention was a norm of intermediate rank between statute law and the Constitution and asserted its monopoly over any conflict between Convention and domestic law. In a discourse focused on the formal placement of international treaties in the Italian system of sources of law, the supralegislative rank of Convention law was unambiguously affirmed. In case of conflict between the Convention, as interpreted by the Court, and domestic legislation subsequent to Law no. 848 of 4 August 1955, ordinary judges could not give priority to the former, and therefore could not set aside the conflicting domestic provision, but instead had to submit the conflict question to the ‘final say’ of the Constitutional Court50.. The Constitutional Court will then assess whether the Convention provision at stake, as interpreted by the Court, is compatible with the Constitution and, if so, whether the impugned statute is compatible with the Convention. In the event that the Convention provision at stake, as interpreted by the Court, were incompatible with the Constitution, Law no. 848 of 4 August 1955 would have to be partially struck down, in respect of the said provision, since the Convention itself cannot be found unconstitutional. Were the impugned statute incompatible with the Convention, the former would have to be struck down, because it would infringe Article 117 § 1 of the Constitution. Therefore the Strasbourg Court's interpretation of the Convention has normative value, in so far as it functions as a normative standard in the constitutionality assessment of ordinary laws.

According to the Giudice delle leggi, the Contracting Parties to the Convention did not create an international legal order and did not impose an obligation to incorporate the Convention into the domestic legal order. It could not therefore be asserted that there was an external legal order which, through decision-making bodies, adopted omisso medio norms with binding force over all domestic authorities. There was accordingly no limitation of national sovereignty. Individuals could not therefore directly enjoy the protection afforded by the Convention51.. Nevertheless, again according to the Constitutional Court, it was for the ordinary judges to interpret the domestic norm in conformity with the Convention and with the Court's case-law. In case of doubt as to the compatibility of the domestic norm with the Convention, the ordinary judge would be required to raise a question of constitutionality and refer it to the Constitutional Court.

This reasoning was basically premised on the alleged distinction between the European Union legal order, which admittedly had direct effect, and the Convention, which in the Constitutional Court's understanding had no direct effect in the domestic legal order of the Contracting Parties in so far as the Convention did not allow ordinary judges to set aside conflicting statutory legislation52.. Although admitting that the Convention was different from other international treaties, to the extent that its interpretation was not in the hands of the Contracting Parties, but in those of a Court, which had the ‘final say’ (ultima parola)53. with regard to such interpretation, the Constitutional Court stressed that the Convention should be understood as a multilateral agreement which did not limit the Contracting parties' sovereignty54.. Ultimately, human rights treaties, like the Convention, should be treated as any other international treaty, except in the case of an international treaty which encapsulated customary principles of international law55..

In the logic of the ‘twin judgments’, the Convention could not even provide a higher degree of protection than the Constitution, but only a ‘guarantee of fundamental rights at least equivalent to the level guaranteed by the Italian Constitution’ (‘una tutela dei diritti fondamentali almeno equivalente al livello garantito dalla Costituzione italiana’)56.. The Convention thus remained an external source of law that should not imperil the unity of the Constitution. While the Constitutional Court had to strike a reasonable balance between the international law obligations, including Convention obligations, and the safeguarding of constitutionally protected interests contained in other provisions of the Constitution, the primacy of Convention law over statute law was ensured solely through the means of Article 117 § 1 of the Constitution, and the Convention provisions as well as the Court's judgments interpreting them should be perceived as ‘external facts’ in relation to the Italian legal order. The old-fashioned dualism à la Anzilotti remained alive, the Convention being clearly placed under the scrutiny of the Constitutional Court, as any other law57..

Two years later the Constitutional Court refined the ‘twin judgments’ logic, with a new couple of ‘twin judgments’, judgments no. 311 of 2009 and no. 317 of 200958.. While highlighting the differentiated nature of some Convention provisions, which included norms of a customary nature directly applicable by the ordinary judge in accordance with Article 10 of the Constitution59., and the role of the Court's case-law as the authoritative interpreter of the Convention, with the logical consequence that the Constitutional Court lacked power to substitute its own interpretation of a Convention provision for that of the Court60., the judges of the Palazzo della Consulta nevertheless limited the Court's interpretative authority to the ‘substance’ (la sostanza) of its ‘consolidated’ (consolidatasi) case-law61..

With the laudable purpose of providing the highest possible degree of protection to the fundamental rights that are common to both the Convention and the Constitution, the Giudice costituzionale engaged in a balancing exercise on the basis of the ‘interpenetration’ (compenetrazione) between each catalogue of rights and ‘the normative interrelationships between the various levels of guarantee’ (interrelazioni normative tra i vari livelli delle garanzie). Thus the judges of the Consulta explicitly admitted that the Convention as interpreted by the Court was on a par with the Constitution: ‘an ECHR provision, when it supplements Article 117 § 1 of the Constitution, receives from the latter its status within the system of sources, with all implications in terms of interpretation and balancing …’62.. Consequently, Article 117 of the Constitution did not preclude a higher-level protection by the Convention, as interpreted by the Strasbourg Court's case-law:

It is noteworthy that the Constitutional Court accorded itself the power to determine that the protection afforded by the Convention, as interpreted by the Strasbourg Court, may be stronger than that provided by the Constitution. But this also means, conversely, that it can determine the opposite, namely that the protection provided by the Constitution may be stronger than that of the Convention as interpreted by Strasbourg.

While pursuing ‘the maximum expansion of the guarantees’ of both the Convention and the Constitution, it is the Constitutional Court's task to perform the necessary balancing exercise with ‘other constitutionally protected interests, in other words, other constitutional provisions that in turn guarantee fundamental rights that might be affected by the expansion of individual protection’64.. By so doing, the Constitutional Court puts the Convention application in the Italian legal order into a broader systemic perspective, underscoring the importance of the ‘constitutional environment’ within which the Convention application takes place and the Consulta's own role as the ultimate arbiter over the enforceability of the Court's judgments in the Italian legal order.

In spite of the novel para-constitutional rank accorded to Convention law, the seeds of discord with Strasbourg were sown in so far as the breadth and limits of its incorporation are not only rhetorically, but effectively dependent on the domestic constitutional adjudication of the interests involved. As a matter of constitutional law, the constitutionality test imposed on Convention norms, as interpreted by the Court, is not even limited to any set of special core constitutional norms or interests. Unlike the notorious ‘counter-limits’ (controlimiti)65. which may serve against the penetration of EU law66. or even delimit certain rules of international customary law67., every constitutional norm or interest may serve as a legitimate bar to the penetration of the Convention.

While there was a clear upgrading of Convention law, as interpreted by the Strasbourg Court, in the ‘second twin judgments’, in so far as it is no longer perceived as an external body of law in the Italian legal order, but as a body of law on a par with, and having an axiological affinity with, the Constitution, its application in domestic law remains in any event under the strict control of the Constitutional Court. In order to safeguard that control, the Constitutional Court makes use of a technical instrument derived from the Strasbourg case-law itself, the ‘margin of appreciation’ (margine di apprezzamento), but applies it to the modulation of the legal effect of the Court's judgments in the Italian legal order68..

For the sake of reinforcing this line of reasoning, the Constitutional Court insists on the distinction between the role of the Strasbourg Court, which is to ‘decide on the individual case and the individual fundamental right’ (alla Corte europea spetta di decidere sul singolo caso e sul singolo diritto fondamentale), and the role of domestic authorities, including the Constitutional Court, which is to protect fundamental rights in a coordinated and systemic manner, and thus prevent the protection of certain fundamental rights ‘from developing in an unbalanced manner to the detriment of other rights also protected by the Constitution and by the European Convention’ (si sviluppi in modo squilibrato, con sacrificio di altri diritti ugualmente tutelati dalla Carta costituzionale e dalla stessa Convenzione europea)69..

Two critical claims regarding the nature of the Court's case-law are implicit in this line of argument, and they have been made explicit in subsequent constitutional case-law. On the one hand, for the Consulta, the Court's judgments are too case-specific and atomistic70., since they are very much dependent on the context and the individual circumstances of each case. In view of the precedent-oriented nature of the Court's jurisprudence, which warrants a long consolidation of its principles, not every judgment can be recognised as representing the Court's case-law. On the other hand, in the Consulta's eyes, the Strasbourg judgments are too simplistic and linear, because they take into account only the subjective interests at stake, not all the involved objective interests; thus the Court's case-law does not consider fully the peculiarity of the Italian legal order71.. If need be, the Constitutional Court may repeat the balancing of interests performed by Strasbourg in the light of the objective interests prevailing in the Italian constitutional order72.. It is precisely for that reason that a certain margin of appreciation should be accorded to the domestic authorities in the implementation of the Court's judgments73..

The second ‘twin judgments’ (judgments 311 and 317 of 2009) represent a certain change of heart of the judges of the Consulta with regard to the first ‘twin judgments’ (judgments no. 348 and no. 349 of 2007). While the ‘first twins’ were focused on establishing a Kelsenian-style, formal order of prevalence of the Constitution over the Convention and of the Convention over statute, aimed at delimiting the respective roles of the ordinary judge and the constitutional judge when ensuring the hierarchy of the sources of law74., the ‘second twins’ sought a substantive articulation between the Constitution and the Convention based on the principle of the maximisation of the protection of fundamental rights of both catalogues, but imposing the terms of a one-sided delimitation of power between Rome and Strasbourg75..

Ultimately, the Constitutional Court conveyed an unambiguous message that, while it was open to a certain degree of integration of Convention and constitutional law, it wanted to retain a considerable degree of discretion in the execution of the Court's judgments in the domestic legal order, thus creating an obvious potential for conflict with Strasbourg and for legal uncertainty in the Italian legal order76..

Unsurprisingly, the conflict erupted three years later, with the ‘Swiss pensions case’. In Maggio and Others v. Italy77. the Court contradicted Constitutional Court judgment no. 172 of 2008, by considering that in Law no. 296/2006 the Italian State had infringed the applicants’ rights under Article 6 § 1 of the Convention and thus rejected the Government's argument that the Law had been necessary to re-establish equilibrium in the pension system, by removing any advantages enjoyed by individuals who had worked in Switzerland and paid lower contributions, as not compelling enough to overcome the dangers inherent in the use of retrospective legislation which had the effect of influencing the judicial determination of a pending dispute to which the State was a party. These divergent views between Strasbourg and Rome led to the Constitutional Court's judgment no. 264 of 2012 repeating the Court's balancing exercise in the light of ‘other constitutional interests’ and finding that there indeed existed compelling general interest reasons justifying a retroactive application of the law. Oddly enough, the Consulta invoked ‘not only the national axiological system in its interaction, but also the substance of the Court's decision at stake’ (‘non solo il sistema nazionale di valori nella loro interazione, ma anche la sostanza della decisione della Corte EDU di cui si tratta’), as if respect for the ‘substance’ of the Strasbourg case-law would warrant disrespect for the Court's Maggio judgment. Afterwards, in Cataldo and Others v. Italy78., and Stefanetti and Others v. Italy79., the Court made it clear that it was adhering to its previous position. In its latest judgment no. 166 of 2017, the Constitutional Court did not change its position, reiterating that the ‘innovation’ in Strasbourg's Stefanetti judgment (‘il novum della sentenza Stefanetti’) added nothing to the discussion on the constitutionality of the disputed domestic norm8080..

After the ‘double monologue’ (doppio monologo) in the Swiss pensions case81., the occurrence of another serious conflict between the Consulta and the Strasbourg Court was predictable in view of the terms in which their relationship had been framed in the second ‘twin judgments’. The conflict arose in January and May 2014, when two questions of constitutionality were referred to the Constitutional Court by the Teramo District Court and the Court of Cassation, respectively, on the subject of Article 44 § 2 of Legislative Decree no. 380/2001 following the Varvara judgment82..

In its judgment no. 49/201583. the Constitutional Court reiterated the administrative nature of the confiscation measure set out in Article 44 § 2, but admitted that it was a ‘penalty’ in the sense of Article 7 of the Convention84. and that the presumption of innocence of Article 6 § 2 of the Convention applied85.. The legacy of Sud Fondi86. was undisputable and remained undisputed.

Nevertheless, the Constitutional Court affirmed that the dismissal of the case owing to the expiry of statutory time-limits might be accompanied ‘by the widest reasoning on responsibility with the sole purpose of the confiscation of the developed good’87.. In other words, in the Italian legal order a decision of prescrizione (statutory limitation) of the offence is neither logically nor legally incompatible with the full assessment of responsibility88.. Furthermore, in the Constitutional court's view, after the reception of Sud Fondi89. in the Italian legal order, this assessment is not a faculty (facoltà) of the judge, but an obligation (obbligo) on whose fulfilment depends the legality of the confiscation.

The Consulta found that the requesting judges' assumption that Varvara had established an innovative and binding legal principle in contradiction with such a longstanding rule of the Italian legal order was wrong, for three reasons. Firstly, the requesting judges had ignored the nature of the Court's case-law as ‘living law’ (diritto vivente), pronounced in a ‘continuous stream’ (flusso continuo) and attached to the ‘concrete situation’ which was at its origin. In the Constitutional Court's view, the rejection of the request for referral to the Grand Chamber only confirmed that no new principle had been established.

Secondly, the requesting judges had wrongly presupposed that Varvara had absorbed the administrative sanction of confiscation into the criminal law field. This would have contradicted the Court's own case-law, which stressed the subsidiarity of penal punishment and the legislator's discretion as to the definition of the ambit of administrative offences as a measure to combat the ‘hypertrophy’ of criminal law.

Thirdly, the requesting judges had misunderstood the Court's focus on the protection of the ‘substance of human rights’ (la sostanza dei diritti umani), if need be by overcoming the formal framework of the facts (l'inquadramento formale di una fattispecie). Varvara should be interpreted as only requiring a ‘substantive’ declaration of liability and therefore as compatible with the simultaneous declaration that the offence was statute-barred according to the rules of domestic law. In other words, the rationale of Varvara was that the statute of limitations was compatible with a ‘substantive’ conviction.

Between the Scylla of the solution of direct confrontation with the Strasbourg Court, as proposed by the Court of Cassation90., and the Charybdis of direct subordination to it, as suggested by the Tribunale di Teramo91., the Constitutional Court searched for a via de mezzo, placing the Varvara judgment in the context of a progressive, continuous stream of case-law92. which does not always reveal clearly the principle upon which the case had been decided93.. In the Constitutional Court's view, Varvara did not set a new, binding principle and did not correspond to consolidated case-law, i.e., case-law from which ‘a norm capable of guaranteeing the legal certainty and uniformity in the Contracting States of a minimum level of protection of human rights’ can be derived94..

The Constitutional Court restated the principle that the ordinary judge was required to follow the Court's case-law. However, in case of doubt as to the conformity of that case-law with the Constitution, the ordinary judge was bound by it only where it was ‘well established’ in the sense of Article 28 of the Convention or was laid down in a ‘pilot judgment’95.. Consequently, the Varvara judgment, which had established the principle whereby Article 7 of the Convention required that a criminal sanction be preceded by a formal conviction, had not expressed a consolidated jurisprudential approach and would thus not be binding on domestic courts. To shore up its reasoning, the Constitutional Court pointed out that, in the event of a conflict between Convention and constitutional norms, the latter must prevail on account of an ‘axiological supremacy of the Constitution over the ECHR’ (predominio assiologico della Costituzione sulla CEDU)96..

In its discussion of Varvara, the Italian Constitutional Court claimed that it was a ‘consolidated principle’ of European law that a ‘penalty’ could be applied by an administrative authority provided it was subject to judicial review97.. In this connection, it was ‘thus doubtful that the Varvara judgment did indeed pursue the path indicated by both of the referring courts by introducing an element of disharmony into the broader ECHR context’. Therefore, reasoned the Constitutional Court, when it came to the meaning of ‘conviction’, what the Court ‘had in mind’ in its Varvara judgment was not ‘the form of the ruling by the court’ (that is, a formal finding of guilt) but instead, ‘the substance which necessarily accompanies such a ruling where it imposes a criminal punishment pursuant to Article 7 of the ECHR, that is, a finding of responsibility’.

As demonstrated in the joint dissent, this is not a plausible reading of either Varvara or the relevant case-law98.. For the application of a ‘penalty’ Varvara requires that the offence (‘criminal’, ‘administrative’, ‘tax’ or other, according to the national law label) must not be time-barred and there has to be a formal ‘verdict as to … guilt’. This formal verdict may evidently be delivered in the context of criminal proceedings stricto sensu or in the context of any proceedings within the meaning of Article 7 of the Convention, such as administrative, tax or other proceedings which apply ‘penalties’99.. The scope of application of Article 7 of the Convention, which also applies to procedures not labelled ‘criminal’ under national law, is not determinative of ‘whether the impugned confiscation measures at least required a formal declaration of criminal liability in respect of the applicants’100.. One thing is the scope of the provision, another is its content.

As proclaimed in Sud Fondi101., and accepted by the Giudici delle leggi102., the content of the principle of legality includes the principle nulla poena sine culpa, which must be established (both the culpa and the poena) within the timeframe set by the relevant statute of limitations. In a State governed by the rule of law and the principle of legality, the power of the State to prosecute and punish offences, even complex offences, is limited by time constraints, or to use the elegant formulation of the Constitutional Court, ‘with the passage of time after the commission of the fact, the need for punishment is attenuated and a right to be forgotten matures for its author’ (trascorso del tempo dalla commissione del fatto, si attenuino le esigenze di punizione e maturi un diritto all'oblio in capo all'autore di esso)103.. Otherwise the values of legal certainty and predictability inherent in the principle of legality, and therefore the principle itself, would be sacrificed on the altar of the efficiency of the justice system.

Based on this premise, when an offence has become statute-barred, the reasons to prosecute it no longer prevail and the purposes of penal punishment no longer obtain. A declaration of a criminal offence as statute-barred precisely entails sacrificing the fight against impunity. If the goal of fighting against impunity always prevailed, there would be no statute-barred offences. This is the Varvara judgment's core, ‘the right to be forgotten’ (diritto all'oblio)104., which is obliterated by the Constitutional Court. The Varvara requirement of the formal ‘verdict as to … guilt’105.is a mere logical derivation from the requirement of limitation periods. There can be no punishment without a formal declaration of guilt, because there can be no such declaration after the prescrizione of the offence. In other words, the core of the famous paragraph 72 of Varvara lies in the acknowledgment that the application of the statute of limitations is not a substantive conviction (la prescrizione non è una sostanziale condanna). While Sud Fondi106. established the principle of nulla poena sine culpa, Varvara recognised the statute of limitations as an integral part of the principle of legality. Article 7 thus precludes the application of confiscation (which is a ‘penalty’ according to Convention law, as interpreted by the Court, and Italian constitutional law, as interpreted by the Constitutional Court) to a time-barred offence, because prescrizione has the meaning of a substantive guarantee, and not a mere procedural meaning, in both Convention and national law107..

In this light, the Italian Constitutional Court's choice to invoke the Court's ‘function of perceiving the violation of the human right in its tangible dimension, irrespective of the abstract formula' used to classify the offence, may strike one as an attempt to deny the obvious fact that a ‘substantive’ finding of guilt means very little, if it does not mean a formal declaration of guilt by a court. This line of argument is particularly unfortunate, since it distorts the meaning of the Court's theory of the prevalence of substance (la sostanza) over form (l'inquadramento formale), which has always been used to ensure the protection of the defendant against disguised forms of punishment. The argument of the protection of the ‘substance of human rights’ (la sostanza dei diritti umani) is used by the Constitutional Court to weaken the human rights of the defendant targeted by the confisca senza condanna (non-conviction-based confiscation). In my view, it is not admissible that the Constitutional Court uses contra reum a theory crafted by the Court for the benefit of the defendant.

That also applies to the argument derived from a need to combat the ‘hypertrophy’ of criminal law108.. If it is true that State policy in criminal law should be governed by the principle of the minimum intervention possible, it is inadmissible to use this argument in malam partem, in order to deprive the defendant of the Article 7 protection and subject him to confiscation without a formal conviction owing to the expiry of statutory time-limits. Subsidiarity of criminal law is turned upside down in order to expand punishment beyond prescrizione.

Indeed, when applying the confisca urbanistica senza condanna (non-conviction-based confiscation in matters of site development), the judge seeks to counter the local administration's inertia and connivance with unlawful site development. In other words, the criminal justice system performs administrative functions. As a matter of constitutional law, it is clear that the transformation of the criminal judge into a subsidiary (di supplenza) body of the administration is incompatible with the principle of the separation of powers. This mixing of the two distinct roles, that of the judiciary and that of the administration, is an undue instrumentalisation of the criminal justice system for purely administrative policy purposes, reflecting a policy of pan-penalisation pursued by the Italian State. It is therefore the present policy choice of the Italian State, upheld by Constitutional Court judgment no. 49/2015, that can be reproached as contradicting the principle of subsidiarity of criminal law, not the Varvara judgment.

According to the Constitutional Court, a ‘substantive’ declaration of guilt would not trigger concerns regarding the Convention. This leaves many questions unanswered — and unasked. The Giudice costituzionale did not clarify ‘the limits that the procedural system may… impose on the criminal judge regarding the activities that are necessary to reach the assessment of responsibility’109., and namely whether the confisca urbanistica can be applied only when the objective and subjective elements of liability have already been established before the prescrizione of the offence or whether the judge can supplement the investigation after that time in order to establish the objective and subjective elements of liability; and, if so, what procedural guarantees would then apply. Nor did the Constitutional Court clarify what precise evidential test should be applied by the judge to establish ‘substantively’ the pertinent facts in order to determine confiscation110.. If statutes of limitations are a limitation upon the powers of the State to investigate people's lives, how is this goal going to be ensured if all offences can nevertheless be investigated in order to reach ‘substantive’ assessments of responsibility? Or are there special offences that admit of such ‘substantive’ declarations of guilt and others that do not?

In the present judgment, the majority of the Grand Chamber do not see a problem with this legal ‘black hole’ and its insurmountable lack of legal certainty. As a matter of fact, the ‘substantive’ declaration of liability is a blank cheque for the domestic courts to do as they please. In the Weberian tension between Wertrationalität (value-rationality) and Zweckrationalität (purpose-rationality), judges, be they international or national, should always pursue the former, not the latter, which belongs to politics. One has the impression that in some respects the present judgment is more an exercise of the latter than of the former. It is stating the obvious that law enforcement agents in general and courts in particular have a much easier life with the regime of non-conviction-based confiscation for a statute-barred offence (confisca senza condanna per reato prescritto). This way, the alleged State policy purpose of the ‘rules applied by the Italian courts’, which is to ‘seek to prevent impunity’, to use the words of the majority in paragraph 260 of the present judgment, is much easier to achieve. But this reasoning is pure purpose-rationality. The judge is not supposed to embark on such calculating reasoning, acting as a subservient surrogate of the Government's interests and policy choices, and especially not in such a delicate field of law as criminal law. Most importantly, the judge should not impute to defendants the shortcomings of an irrational State criminal policy, including a policy with a ‘combined effect of complex offences and relatively short limitation periods’111..

Even assuming that unlawful site development is ‘a complex offence’112., that the relevant limitation period was ‘relatively short’113. and that their combined effect created a situation where the perpetrators of such offence ‘systematically’114. avoided prosecution and punishment, the defendant does not have to carry the responsibility for such choices of criminal policy. That is exactly what paragraph 260 of the present judgment boils down to115..

More generally, the concept of a ‘substantive’ declaration of liability in and of itself runs counter to the values of legal certainty and foreseeability, since the person/entity concerned cannot really predict if her/its assets are going to be confiscated. Apparently, the majority propose to limit the applicability of the concept of ‘conviction in substance’: it should apply only to prevent impunity against ‘complex offences’. However, as the ‘complexity’ of offences is a very vague criterion, this approach calls into question the values of legal certainty and foreseeability.

Furthermore, the concept of a ‘substantive’ declaration of liability is based on an analogy with a conviction116.. To support this analogy, the majority equate the decision ‘where the courts find that all the elements of the offence of unlawful site development are made out, while discontinuing the proceedings solely on account of statutory limitation’ with ‘a conviction for the purposes of Article 7’117.. By so doing they make it possible to understand, from the reasoning of such a decision, that the elements of both actus reus and mens rea are proven. This analogy between reasoning and conviction is fundamentally wrong, because such extension of the concept of ‘conviction’ to the detriment of the defendant corresponds to an inadmissible analogy in malam partem. The legal fiction of a ‘conviction in substance’ contradicts the very essence of the prohibition of analogy to the detriment of the defendant, which lies at the heart of the principle of legality (nulla poena sine lege certa, stricta).

The Court has always refused this analogy. For example, in the case of Margus v. Croatia118., the Court was crystal clear in stating that ‘the discontinuance of criminal proceedings by a public prosecutor did not amount to either a conviction or an acquittal’ and therefore that the discontinuance decision did not fall under Article 4 of Protocol No. 7 to the Convention. Evidently, these two outcomes (conviction or acquittal) can be found only in the operative part of a domestic decision, i.e., where the competent court proffers the case's outcome. The reasoning is of no relevance for the application of the ne bis in idem principle in criminal procedure. The majority ignore this basic principle of criminal procedure law to the extent that they attempt to extract conclusions detrimental to the defendant (‘in substance, a conviction’) from a judgment's reasoning when they are absent from the operative part. Such effort, in so far as it seeks to find a ‘conviction in substance’ regardless of the fact that the defendant has not been formally convicted, violates the core of the ne bis in idem principle119..

Lastly, the ‘substantive’ declaration of liability blatantly violates the presumption of innocence principle. As the Court has repeatedly rejected any declaration of guilt, whether in acquittals or decisions of discontinuance or dismissal of a case, as a flagrant violation of Article 6 § 2 of the Convention120., the ‘pieno accertamento di responsabilità’ (the full establishment of liability)121.required by the Constitutional Court as the basis for the confisca senza condanna clearly breaches the right to be presumed innocent. Indeed, this is so obvious that it is hard to believe that in a State under the rule of law such as Italy a ‘penalty’ within the meaning of Article 7 of the Convention could be applied with such a frontal violation of Article 6 § 2 of the same Convention.

The ‘substantive’ declaration of liability reminds me of the verdict à moitié acquitté (‘half acquitted’) back in the Middle Ages, where defendants were acquitted but, on the basis of certain evidence, some guilt was proven and some penalty was imposed. To my mind, the status of someone who benefits from a declaration of prescrizione, and yet is subjected to a confiscation order on the basis of a declaration that the facts are proven and the guilt is established, is quite similar to the status of those who were once à moitié acquitté. One has to recall, however, that there was a Revolution in 1789, among other things, to put an end to this absurdity. Learning with History would sometimes help not to repeat the same errors time and again.

Against this background, the Constitutional Court sets the new terms of the relationship between Convention law, as interpreted by the Court, and constitutional law. In its understanding, the inter partes effect of the Court's judgment is undeniable and binds the national judge subsequent to the delivery of the Court's judgment, but it has to be distinguished from its erga omnes effect, which the Constitutional Court does not deny, but leaves to the discretion of the national judges122.. National courts may accord that effect to a judgment corresponding to ‘consolidated law’ and deny it to one which does not correspond to ‘consolidated law’. This conclusion is supposedly confirmed by the structure of the Court (five sections with a mechanism of referral to the Grand Chamber) and its working methods (dissenting opinions). Although the Consulta does not explicitly state what the criteria are in order to identify ‘consolidated’ law, it indicates some indicia of ‘non-consolidated’ case-law, such as the following: the novelty of the principle set out in the case-law vis-à-vis previous case-law; the existence of dissenting opinions; the judgment of a Chamber without confirmation by a Grand Chamber; and the doubt about the consideration of the specific features of the national legal order123..

The procedures and criteria through which the Italian judiciary ensure respect for the Convention are a matter of domestic law with which this Court does not concern itself. However, as both this Court and the Italian Constitutional Court readily acknowledge, it is this Court which is the organ endowed with the ‘final say’ over the interpretation of the Convention124.. Therefore, it is for this Court to make clear that the notion of ‘consolidated law’ has no basis in the Strasbourg jurisprudence, as it did in the present judgment.

The judges of the Palazzo della Consulta assert that the notion of ‘consolidated case-law’ is recognised in Article 28 of the Convention and that this demonstrates that, even under the Convention, it is accepted that the persuasive density of rulings is liable to fluctuate until ‘well-established case-law emerges’. To support this reading, they cite the explanatory report in respect of Article 8 of Protocol No. 14 to the Convention, explaining the concept of well-established case-law as ‘normally’ meaning ‘case-law which has been consistently applied by a Chamber’, or ‘exceptionally’, well-established case-law can emerge from a single judgment on a ‘question of principle … particularly when the Grand Chamber has rendered it’125..

The concept of well-established case-law, however, is totally different from that of the Constitutional Court's ‘consolidated law’, despite some apparently similar label. Firstly, the function of well-established case-law is nothing akin to a change in the normative force or ‘persuasive density’ of the Court's judgments and decisions depending on some degree of ‘consolidation’. The only function of well-established case-law is to give a Committee the ‘competence’126. to adjudicate a case instead of referring it to a Section of the Court. This is not because well-established case-law is superior in any way to the rest of the case-law, but only because it allows a more ‘simplified’127. procedure for ‘repetitive’128. cases. Furthermore, applicants can challenge the character of well-established case-law under Article 28 § 3 of the Convention. Well-established case-law permits this Court to differentiate case-law according to the simplicity of its interpretation, but this does not say anything about the binding force of its judgments.

The Convention means what the Court considers the Convention to mean, with no further qualifications. Courts in member States, as well as the public in general, should expect this Court to abide by its previous decisions and judgments in any case that follows an analogous fact-pattern, no matter how numerous the precedents may be129.. This evidently is also true for ‘pilot’ and ‘quasi-pilot’ judgment procedures. Although not grounded on the Convention, but on the Rules of Court130., they are typical constitutional review instruments which play a critical role in resolving the dysfunctional operation of domestic law or the legislator's failure to regulate systemic dysfunctions, but have no special interpretative authority or distinct legal force. In fact, they mostly confirm previous case-law, delivered against the respondent Contracting Party or other Contracting Parties131.. For this Court, any decision or judgment constitutes an authoritative source of interpretation of the Convention and represents, as the Italian Constitutional Court itself admits, ‘the final say’132.as to its meaning. The Court states this principle in the following straightforward terms: ‘its judgments all have the same legal value. Their binding nature and interpretative authority cannot therefore depend on the formation by which they were rendered’133..

The Court has taken great care, not only to distinguish three concepts, namely ‘legal value’, ‘binding nature’ and ‘interpretative authority’, but also to include the fundamental word ‘all’, so as to leave absolutely no doubt about its intent. For the Court, regardless of the type of competent formation, each of its final judgments becomes res judicata between the parties to the dispute and res interpretata with regard to all Contracting Parties. The principle of the ‘interpretative authority’ (res interpretata) of ‘all’ judgments of the Court has thus entered Strasbourg case-law through the grand door of this Grand Chamber judgment134..

This principle deprives judgment no. 49/2015 of its theoretical cornerstone. Conversely, the Court repudiates the notion of diritto consolidato, which is at the heart of that same judgment. Thus the Constitutional Court is called upon by the Grand Chamber to reframe the terms of its relationship with the Court, and there is no ‘margin of appreciation’ not to do so, since the Court does not use the margin of appreciation in this case135.; nor is it tenable to use it in the case of non-derogable provisions such as Article 7 of the Convention136.; and nor is it permissible to use such doctrine to deny the execution of a final judgment of the Court in the domestic legal order137..

A detailed analysis of the criteria that the Italian Constitutional Court sets forth in order to identify ‘non-consolidated law’ reveal their propensity to create a situation of dangerous legal uncertainty. What is more, closer attention will demonstrate that the sole concept of ‘consolidated law’ is self-defeating. The first criterion that the Italian Court uses to discard the consolidation of European case-law is ‘the creativity of the principle asserted compared to the traditional approach of European case-law’. It is hard to understand what ‘creativity’ means in this context. Particularly, any solution given to a factual situation that appears before the Court for the first time would be, ipso facto, ‘creative’ in a relevant sense. No ‘consolidated law’ would therefore emerge from a single case. If this were true, it would lead to the absurd result that, when the Court faces the same factual pattern for a second time, there would be no ‘consolidated law’ yet to be relied upon. It would only be after an undetermined number of independent cases that they would conform to ‘consolidated law’.

Furthermore, ascertaining ‘creativity’ entails comparing the relevant features of both the factual background and the legal reasoning of the various cases at hand, so as to decide whether the solution given to a case was ‘creative’ or ‘traditional’. However, this comparative work is an intellectual operation which is neither obvious nor innocent. Since all cases are different in some regard, all cases could be said to be ‘creative’ in a non-trivial sense. The interpreter is left, therefore, with enormous discretion to recognise which cases are binding and which are not. This is even more clearly illustrated by the second criterion listed by the Constitutional Court: ‘the potential for points of distinction or even contrast from other rulings of the Strasbourg Court’. The exercise of ‘distinguishing’ or ‘contrasting’ cases from each other is not an obvious activity, and may lead to very different results according to the person in charge of that task and the context in which he or she is performing it.

The third criterion given by the Constitutional Court, ‘the existence of dissenting opinions, especially if fuelled by robust arguments’, is no less problematic. On the one hand, the ‘robustness’ of the arguments seems too much of a subjective evaluation for it to be considered a serious indication of the binding nature of a ruling — or, as in this case, of the non-binding nature of its opposite reasoning. On the other hand, and more fundamentally, dissenting opinions do not demean in any way the legal force of the judgments to which they are appended. Furthermore, considering that dissenting opinions diminish in any way the legal force of judgments would be vesting individual judges with a power they cannot logically have, or be intended to have, within a collegial organ such as the Court.

The fourth criterion consists in ‘the fact that the decision made originates from an ordinary division and has not been endorsed by the Grand Chamber’. This criterion finds no ground in the Convention either. Final judgments issued by Chambers do not need a Grand Chamber ratification to have full legal force. The legal force of a Grand Chamber judgment is exactly the same as that of a Chamber judgment.

The fifth and final criterion given by the Constitutional Court is perhaps the one that most clearly reveals the practical inconveniences of that court's approach. According to the Constitutional Court, ‘the fact that, in the case before it, the European Court has not been able to assess the particular characteristics of the national legal system, and has extended to it criteria for assessment devised with reference to other member States which, in terms of those characteristics, by contrast prove to be little suited to Italy’ would deprive a judgment of binding force in similar cases. This situation would arise every time a domestic court considers that the Strasbourg Court misapplied to a certain State a legal principle that it found applicable to a different State. This criterion is not qualitatively different from saying that domestic courts should not follow the Strasbourg Court's rulings when they think they are ‘little suited to Italy’.

Either way one looks at it, the fifth criterion is based on wrong assumptions. When admitting that the Court does not take into account the particular characteristics of the national legal system, the judges of the Palazzo della Consulta assume that the Court either ignores the information on national law provided by both parties, the third parties and its own internal research division, or is ill-informed by all of them. In addition, the Constitutional Court overlooks the fact that the Court does take into account, in its balancing exercise, the multiple factors that relate to the ‘protection of the rights and freedoms of others’ and to other objective social interests such as national security, territorial integrity or public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of public order, health or morals and the protection of the authority and impartiality of the judiciary (for example, Articles 8–11 of the Convention) and even the exigencies of the situation in time of emergency (Article 15 of the Convention), and performs this exercise in the framework of the Council of Europe legal system138.. Worst still, when underscoring the prevalence of the particular characteristics of the national legal system in its own balancing of the Convention rights and constitutional interests at stake, the Constitutional Court assumes — or at least gives such impression — a stance that is unsympathetic to the cause of universal human rights and therefore limits drastically its own case-law on the erga omnes effect of the Court's judgments139..

The problems with the last criterion are clearer if read in conjunction with the first two. If the Court decides a case arising in member State A by reference to an analogous case decided in member State B, the domestic court could accuse this Court of having performed an undue ‘extension’ that does not adequately take into consideration the particularities of the country. By contrast, if the Court decides the case using a novel line of reasoning, the domestic court could accuse the decision of ‘creativity’. In neither case would the decision form ‘consolidated law’.

Finally, as troubling as the criteria themselves is the fact that the Constitutional Court considers that ‘consolidated’ (and therefore binding) law does not exist every time ‘all or some’ of the above-mentioned criteria are present. If each of the criteria presented would confer an egregious amount of discretion on the interpreter, the alternative combination of all of them would more straightforwardly call into question the very meaning of European jurisprudence.

The criteria of non-consolidated law troublingly misconstrue the Court's structure, since Articles 27, 28, 42 and 44 of the Convention provide the conditions under which judgments delivered and decisions taken by a single-judge formation, a committee, a Chamber and the Grand Chamber, respectively, are themselves final, and neither their letter nor their spirit confirms the Constitutional Court's underlying assumption of a difference in the legal force of these judgments and decisions. Furthermore, the criteria present an unflattering depiction of the Court's case-law that is largely unsubstantiated by evidence, as for instance, in the claims that there may be judgments in which the Court ‘in substance’ says nothing (non dica nulla), or that judgments in novel arenas of law are susceptible to ‘revision’, and more broadly, that some of the case-law of the Court is inconsistent with a more ‘traditional approach of European case-law’, however that may be defined. Most importantly, the intended effect of these criteria is to free ordinary judges from their obligation under the Convention to give full effect to the Court's judgments140..

Surprisingly, the Constitutional Court is ready to accept a diffuse control by every ordinary judge of the ‘consolidated’ nature of the Court's judgments. Thus, in 2015 the ordinary judges have regained a truly uncontrolled power over the application of the Convention, which the first ‘twin judgments’ had intended to strictly limit. There is, however, one major difference. While until 2007 the ordinary judges had a final say on the application of the Convention to the detriment of national law, in 2015 they gained the power to disapply the Court's judgments when they find that they are not ‘consolidated law’. To put it in sociological terms, the 2015 redistribution of power between the Court and the Constitutional Court strengthened the latter's position, but that came at a price internally, since the redistribution of power between ordinary and constitutional judges weakened the position of the latter. It would appear that the concern with the growing authority of the Court's case-law was so deeply seated after the Maggio and Others case141.and the Agrati and Others case142.that the Giudice delle leggi felt that they could rely on ordinary judges, not only as front-line screeners of that case-law, but also as allies in their confrontation with Strasbourg.

In the three years since judgment no 49 of 2015, the Constitutional Court has provided no further guidance on how the criteria to identify consolidated law should be interpreted or applied. In its judgment no. 184 of 2015, for example, the Constitutional Court used the concept of consolidata giurisprudenza europea to interpret Article 6 of the Convention as applied domestically143.. It did not explain how this ‘consolidation’ was to be assessed. Similar superficial remarks about ‘consolidated law’ are made, for example, in judgments no. 187 of 2015144., no. 36 of 2016145., no. 102 of 2016146., no. 200 of 2016147.and no. 43 of 2018148.. On other occasions, the Constitutional Court only made innuendos about disregarding this Court's judgments on the basis of the criteria laid down in judgment no. 49 of 2015. For example, in its judgment no. 166 of 2017, it made no reference to the notion of diritto consolidato in its legal assessment, although the State had done so. However, the Giudice delle leggi did make the remark that Stefanetti v. Italy had been rendered by the Court ‘albeit with the dissenting opinion of two of its members’149..

Therefore, it comes as no surprise that the use of the ‘consolidated law’ test by the ordinary judges has proved quite chaotic, to say the least, as the reception of the De Tommaso Grand Chamber judgment shows150.. The way the criterion has been applied gives the impression that it is a bit of a ‘Jack of all trades’ that allows for any conclusion that would be convenient for domestic authorities. One judge's ‘consolidated’ law is another judge's ‘non-consolidated’ law. All bets are off.

To sum up, in the current state of Italian constitutional case-law, the Constitution and the Convention contain interrelated sets of fundamental rights catalogues, which must be articulated with a view to the maximisation of the protection of the respective rights. This task belongs to the legislator and the domestic courts, which have a duty to interpret domestic law in conformity with Convention norms, as interpreted by the Strasbourg Court151.. In the event of conflict between domestic law and the Convention, it is for the Constitutional Court to resolve the conflict, as the ordinary judges do not have the power to refuse to apply an incompatible domestic rule. Only consolidated law may entail a conflict, since non-consolidated law does not even merit erga omnes effect. If the Court's consolidated case-law is incompatible with the Constitution, it is the Constitution which prevails and the law which implemented the Convention will be found by the Constitutional Court to be partially invalid.

From the Strasbourg perspective, the Constitutional Court's solution boils down to the omnipresent possibility of a declaration of partial unconstitutionality of the 1955 Law which could not be implemented before the Council of Europe other than by denouncing the Convention, since reservations made à la carte are not Convention-compatible and certainly not with regard to its Article 7.

Part II — Strasbourg replying to Rome (§§ 57–90)

In a fiercely polarised and messy Europe, destabilised with the implosion of traditional, mainstream parties and the emergence of populist newcomers, troubled by rising economic strife and roiled by war on its borders, politics is turning towards pure, ethno-religious chauvinism. Chauvinism is not simply people acting against the inherent dignity of every human being, it is about the material benefits that the chauvinist and his or her class derive from the exercise of power, it is about the perverse way power is exercised in society. Putting fear at the core of individual consciousness in a primitive logic of homo homini lupus and sowing distrust among countries in a basic logic of regnum regno lupus are essential to their goal of undermining the credibility of the Convention system, further alienating Europeans from one another and weakening the cohesion of the Council of Europe and the European Union. That same scare has spurred purges, blacklists, deportations and, in some cases, State-sponsored discrimination and State-sanctioned murder.

Yesterday's political fault lines are disappearing for the benefit of hard-line parties and populist movements that have risen at either end of the political spectrum. One major commonality among these parties and movements is their unprecedented barrage of bellicose verbiage against the Court, based on flawed, inaccurate and easily debunked misinformation. Such abject attitude speaks volumes about the social and political values of these parties and movements and their lack of commitment to the European culture of human rights. In recent years the resentment against the Court has reached a new, alarming pitch, stoking sectarian rage against the Convention system itself. The rhetoric of the Convention as a ‘villain's charter’, which protects the terrorists, the paedophiles and all sorts of criminals against the innocent majority, or the abusive, lazy migrants against the hard-working Mr Smith, or the privileged minorities against the underprivileged, common man on the street, echoes the whipped-up fear of the outsider — of that which is foreign or different.

Two strands of criticism seem to have fused. On the one hand, the pervasive idea that the Court's global reach is a threat to local democracy; on the other the cynical claim that human rights law as applied by the Court stretches the limits of the concept of law, or to put it frankly, is not law at all. These ideas have gained meretricious credibility with repetition. They are hard to untangle from other markers of a reactionary ideology, which hijacks the media space with the alarmist cries that government is losing control over borders and that Europe is losing control of its identity. This rhetoric is steeped in time-worn boutades about Europe being under attack from the near-heretics, sneering forces of modernity and governments being under constant siege from international organisations with an ever-growing political agenda. Such rhetoric has long erased the fine line between telling boastful untruths and criticising the advancements of case-law. It scorns the idea of universality of human rights with a view to revising the Court's civilisational acquis and putting the Court into reverse gear, in the belief that naming a desire will bring it about.

The excruciating problem for the Convention system is that this politically motivated narrative, which is aimed at the disruption of the Convention system as it was built and has evolved over the last sixty years, has contaminated the discourse, if not the hearts, of the highest judicial representatives in some countries. The present case provided an excellent occasion for the Court to run against these strong headwinds and to stand up for the main asset of the European human rights protection system and the foundational guarantee of the Convention system itself, namely the binding force of the Court's judgments. On the essential point, the Court has not missed the opportunity.

It is true that the majority reject the administrative sanction nature of confisca urbanistica, but they do not provide a credible discussion of the opposite arguments of the respondent Government, which insist on considering it una misura di natura reale e di carattere ripristinatorio (a real-property measure of restorative nature)152.. In fact, the majority choose not to heed the call in my separate opinion in Varvara, where I mentioned the problematic state of the jurisprudence regarding confiscation. Instead of putting some order in this respect into the Court's case-law, the majority prefer to render a judgment that is strictly limited to the confines of the confisca urbanistica, as stated in paragraph 155 of the judgment, without articulating their legal assessment of this modality with other forms of confiscation already subjected to the Court's scrutiny153..

After dispatching the issue of the applicability of Article 7 in such an unsatisfactory way, the majority go on to address the core of the case in the same manner. It is true that the majority confirm the principle nulla poena sine culpa set out in Sud Fondi154.. According to paragraph 242 of the present judgment, Article 7 requires, for the purposes of punishment, a mental link155.. But in spite of this confirmation, the majority immediately backtrack from their own position, by conceding in the following paragraph that this requirement does not preclude the existence of certain forms of ‘objective liability stemming from presumptions of liability’, keeping the bulk of the unfortunate paragraph 70 of Varvara. One could ask how two radically opposite perspectives of Article 7, indeed of criminal law itself, can be upheld by the same court, and one would expect the majority to provide the reader with an explication of this legal imbroglio. The majority simply omit to provide any articulation for the two logically and axiologically contradictory statements. The only justification given is that, since the Court has accepted certain forms of presumption of innocence under Article 6 § 2 of the Convention, ‘the Court finds that the case-law described above applies mutatis mutandis under Article 7’156.. This deeply regrettable confusion between Article 6 procedural guarantees and Article 7 substantive guarantees does not end here.

In this regard, the present judgment chimes with the spirit of the age. Unfortunately, the majority seem misguided by a strictly efficiency-interests-oriented approach to criminal law. As pointed out in the joint dissent, paragraph 260 of the present judgment looks very much like an unconvinced effort to rubber-stamp confisca urbanistica senza condanna on the basis of the non-negotiable need to ‘prevent crime’ and fight against ‘complex crime’, whatever that may mean. This kind of reasoning is part and parcel of the now prevailing ideologically retrogressive policy mix composed of a purely retributivist approach to criminal law157., a strictly police-interests-driven criminal procedure158., a purposefully hardened ‘just deserts’ prison law159. and a truly inhuman ‘crimmigration’ policy160., while it provides no justice whatsoever for victims of serious crimes such as torture161.. Such liberticidal case-law shows the worst face of Europe in recent criminal law history, as if Dei Delitti e delle Pene had never been written.

In this misguided spirit, the majority go so far as to admit the inadmissible in a State governed by the rule of law when applying Article 7 to Mr Gironda: a trade-off between non-derogable Article 7 guarantees and derogable Article 6 rights162.. What is more, in their apparent effort to save confisca urbanistica senza condanna at any cost in the case of Mr Gironda, the majority contradict themselves. Although they say that confisca senza condanna would only be admissible under Article 7 of the Convention ‘provided that the domestic courts in question acted in strict compliance with the defence rights enshrined in Article 6 of the Convention’163., they find a violation of Article 6 § 2 of the Convention with regard to Mr Gironda and no violation of Article 7 with regard to the same applicant. It is beyond my understanding why the majority do not apply their own test to the case of Mr Gironda. In his case, there was no ‘strict compliance’ with the guarantees of Article 6 and, therefore, according to the majority's own test, there should be a violation not only of Article 6, but also of Article 7. Be that as it may, at the end of the day, confisca urbanistica senza condanna is not saved, since it always breaches the presumption of innocence, as the almost unanimous Grand Chamber acknowledges164..

For every ounce of criticism directed at the Court, there is a pound of praise. Through its binding judgments and decisions, the Court has exercised admirable worldwide leadership in the protection of human rights, inducing human progress in the Contracting Parties and beyond. In a Europe where far too many people have known far too much suffering and far too little opportunity, the Court has more often than not carried the torch for the progressive side, promoting the cause of the minorities, the marginalised, the excluded, the despised, the dispossessed, the disadvantaged, the disenfranchised, the outcast, the pariah, all those sons of a lesser God left behind by governments and domestic courts.

The Court has sought to be a roof under which everyone could huddle to stay safe from the multiple storms that have swept across Europe in the past, and for the many more that are brewing on the horizon. Much beyond the claims of injustice done to basic civil and political rights, the Court has listened to the voice of those who belong to the lowest rung of the social hierarchy, who feel held back, whose aspiration for self-improvement is squelched by an impoverished public education system, strangled by an underfunded and understaffed public health system and neglected by an overburdened, sometimes indifferent, justice system. In this troublesome context, the Court has not refrained from addressing the bread-and-butter concerns of the struggling common class, like for example in the access to social benefits by foreigners. Just take the telling case of Italy.

In Italy, the Court's legacy is immensely rich, having impacted upon, among other fields of law, criminal procedure (including the mandatory publicity of judicial debates165., the exclusion of proceedings in absentia166., compensation for excessively lengthy proceedings167.and the mechanism for revision of res judicata on the basis of a judgment of the Court168.), criminal law (the principle of retroactivity of the more favourable law169.and rehabilitation after conviction170.), prison law (the conditions of detention in overcrowded prisons171.and phone conversations by prisoners172.), civil law (the principle of non-retroactivity173.), family law (the right to marriage of foreigners174., the right to family reunification175.and the retroactivity of law equating children born in and out of wedlock176.), bankruptcy law (the personal status of the bankrupt177.), medical law (medically-assisted procreation178. and scientific research on embryos179.), social-security law (non-discrimination in access to social benefits by foreigners180.), labour law (trade union freedom181.), administrative law (expropriation for public interest182.) and constitutional law itself (parliamentary immunity183.). In sum, the Italian style of constitutional adjudication has been profoundly influenced by the Court's case-law, which has ‘induced the Constitutional Court to revise its previous case-law and to develop new principles and standards’184..

By having such an impact in the past, the Court has attracted the antipathy of parties of both sides of the political spectrum as well as a powerful elite of skilled political knife-fighters, joining forces in a coalition comprising the neo-liberal-leaning supporters who hate the intervening State and the nation-State admirers who are viscerally opposed to any form of international comity and alliance. The mood is sanguine in some quarters in Europe. Some leaders pitch populations to their worst instincts and feed their political base red meat on sensitive policies, such as criminal, immigration and minorities policies. These ideas have gained new purchase. They are championed by a populace every bit as puerile as their leaders. The narrow-minded, sovereignist-leaning mood is in full display in the reaction to some ‘unpleasant’ judgments of the Court. In a crusade against entrenched principles of international law and foundational principles of the Convention system, some governments and their protégés pretend that their possession of the Convention means that domestic courts have the final say on its interpretation and, above all, on the implementation of the Court's judgments. The mesmerising effect of the message aims at losing sight of the difference between the Contracting Parties’ power over the fate of the Convention as an international treaty and the Court's unique role and unconditioned power to determine its content in accordance with Article 19 of the Convention and impose its interpretation through judgments with direct and binding effect on the legal order of all Contracting Parties.

Some domestic courts have not resisted the current lurch towards the populist scapegoating of the Court for all the evils of Europe. Under the appealing motto of the ‘judicial dialogue’ between domestic courts and the Court, a cynical ploy has unfolded to shake the pillars of the Convention system185.. In a bitter, divisive and antagonistic logic of ‘us and them’, some domestic courts have called into question the legal force of the Court's inconvenient judgments, by advocating a State-centred Westphalian interpretation of human rights, giving priority to regulatory discretion of governments over fundamental rights of citizens. The lessons of History could not be further from their mind. Whether these States bring the Court to heel will be a test of their rising ambitions.

Let us not become mired in legal jargon and technicalities. Pious-sounding statements that judicial dialogue will reaffirm the Contracting Parties’ commitment to long-standing principles that ensure the integrity of the Convention system have done nothing but disguise the ill-intended animus harboured towards the Court, to bog down the push for more ambitious action on the part of the Court. The Court has a shrinking amount of wiggle room within which to react.

The present judgment has turned out to be a look at what ills might beset us in the near future. Some domestic authorities are betting on the failure of the European system of human rights. They leave no taboo unturned. After the approval of the law on the powers of the Constitutional Court of Russia, of 15 December 2015, which provides for the power to declare the judgments of international courts, including this Court, non-executable in the Russian legal order when they contradict the Russian Constitution, the alarm bells in Europe should have rung186.. It is no calming sign that the Russian Constitutional Court's judgment, which opened the door to such law187., cited precisely the Constitutional Court's judgment no. 264/2012 in the Swiss pensions case, among others, as a source of inspiration. When the strongest taboo cracks, as it did in December 2015, lesser ones may crumble.

In their ultimately losing battle against international law and courts, the cavaliers of parochialism will only be stopped by solid, principled legal reasoning which can both denounce their seemingly lofty and self-centred discourse and at the same time persuade the legal community and assuage the fears of the common class. The choice for domestic courts and in particular for constitutional and supreme courts is clear today: either to join the cosmopolitan view of universal human rights as a limitation of State sovereignty188.; or to embrace the opposite, parochial view of domestic law as the inexpungible reserve of sovereignty and consequently of universal human rights as ‘nonsense upon stilts’, to borrow the expression of Bentham. This is a proxy fight between supporters and opponents of international law.

Convention obligations require States not only to uphold, pursuant to Article 46 of the Convention, the binding force of the Court's judgment in respect of the parties to the dispute in question, but also to prevent any violations found in that judgment from being repeated in respect of others189.. This is one of the consequences of the principle of subsidiarity and its key role in the architecture of the Convention system. In particular, the national courts must interpret and apply domestic law in accordance with the Convention and the Court's case-law. Thus, while it is primarily for the national authorities to interpret and apply domestic law, the Court is required to verify whether the way in which that law is interpreted and applied produces consequences that are consistent with the principles of the Convention190.as interpreted in the light of the Court's case-law191..

In so far as it is a consequence of the subsidiarity principle, this rule also applies outside the strict confines of Articles 41 and 46 of the Convention, which primarily concern the relations between the parties to the dispute in question. This can also be seen from the Brighton Declaration, in which the member States undertook to guarantee ‘[t]he full implementation of the Convention at national level [, which] requires States Parties to take effective measures to prevent violations’192.. To that end, ‘all laws and policies should be formulated, and all State officials should discharge their responsibilities, in a way that gives full effect to the Convention’. Thus, ‘[n]ational courts and tribunals should take into account the Convention and the case law of the Court’.

Furthermore, the measures to be taken by a State in executing a judgment are not confined to those which concern the individual applicant. That is the consequence of the above-mentioned considerations about subsidiarity. Where the violation stems from an underlying structural issue, the respondent State must, on the contrary, take general measures appropriate to the solution, in order to prevent the same violation from affecting others. According to the Court's well-established case-law, in the event of a finding against a State:

This evidently coalesces with the principled nature of the Court's adjudication194.. Time and again, the Court has reiterated that

As the Court's judgments all have the same legal value, binding nature and interpretative authority196., the application of this rule cannot depend, as suggested by the Italian Constitutional Court in its judgment no. 49/2015, on the formation by which the judgment in question has been delivered197.. Admittedly, a need for clarification as to the significance of certain judgments cannot be ruled out. This need must then be met through a jurisprudential exchange between the Court and the domestic courts concerned, but the obligations of the latter in the light of Strasbourg jurisprudence will not, however, be suspended as a result.

To put the matter another way, the legal value of the Court's judgment includes its binding effect inter partes (in the Court's words, its ‘binding nature’), as well as its no less important ‘interpretative authority’. By naming it, the Court has converted the scholarly concept of the ‘interpretative authority’ (res interpretata) of its judgments into a legally binding principle of Convention interpretation and application. This is no longer a mere doctrinal statement, but a judicially endorsed, fully-fledged legal principle governing the effect of a judgment of the Court. In this sense, the Court's judgment has erga omnes effect in all Contracting Parties, regardless of the fact that it has been delivered against only one or more of them198.. This corresponds to the judicial acknowledgment of a commitment of the Contracting Parties, taken already in the Interlaken Declaration:

Confirmation of this approach can be found, once again, in the Brighton Declaration, which stated that ‘[r]epetitive applications mostly arise from systemic or structural issues at the national level’ and that ‘[i]t is the responsibility of a State Party, under the supervision of the Committee of Ministers, to ensure that such issues and resulting violations are resolved as part of the effective execution of judgments of the Court’200.. Furthermore, ‘[t]hrough its supervision, the Committee of Ministers ensures that proper effect is given to the judgments of the Court, including by the implementation of general measures to resolve wider systemic issues’201.. Lastly, the States are encouraged ‘to develop domestic capacities and mechanisms to ensure the rapid execution of the Court's judgments’202..

These obligations extend to the constitutional law of the States Parties to the Convention. Article 1 of the Convention makes no distinction as to the type of norms or measures in question and does not remove any part of the ‘jurisdiction’ of member States from the ambit of the Convention. It is therefore by the totality of their ‘jurisdiction’ — which is often, first and foremost, exercised through their Constitution — that those States account for their compliance with the Convention203.. In addition, this approach is in keeping with Article 27 of the Vienna Convention on the Law of Treaties, according to which a State cannot rely on provisions of its domestic law, including its constitutional law, to justify its failure to enforce a treaty204..

The time of constitutional parochialism is over in Europe. In the era of multilevel constitutionalism, the Convention is a ‘constitutional instrument of European public order’205.. It thus prevails over constitutional provisions and interests of the Contracting Parties, not only in Malta206., Ireland207., Bosnia208., Russia209.and Hungary210., but also in Italy and in all other Council of Europe member States. To put it in dogmatic terms, from the Strasbourg perspective, the old-fashioned distinction between monist and dualist constitutional orders has become irrelevant and does not impact upon the binding force of the Convention, as interpreted by the Court's judgments, in the domestic legal order of the Contracting Parties211.. The multilevel constitutionalism sustained and practised by the Council of Europe is beyond such distinction, seeking a reductio ad unitatem in fundamental rights issues in all Contracting Parties212..

As is plain to see in the Baka case213., this principle of precedence of the Convention over constitutional provisions and interests of the Contracting Parties is particularly crucial in the present political circumstances in Europe, when ‘illiberal democracies’ stretch the limits of their constitutions by incorporating provisions contradicting basic principles of Convention law, such as the principle of the independence of the judiciary. If the Contracting Parties still want a strong court in Strasbourg to stand up to grundrechtsfeindelichen (fundamental-rights-inimical) domestic authorities, then they will have to cope with that same strong court when it knocks at their door. The Convention system is evidently incompatible with a hypocritical NIMBY (‘Not in my backyard!’) logic that would pretend that universal human rights is a good thing when it is for others, but a bad one when it is for ourselves.

It is worthy of note that the Constitutional Court has already incorporated many of the Convention principles into Italian constitutional law, developing a Convention-sensitive constitutional theory of fundamental rights. As pointed out by its judgment no. 349/2007, the Convention system ‘guarantees the application of a uniform level of protection internally in all member States’. To be precise, the Convention is a multilateral, law-making treaty, with a centralised and authoritative standard-setting mechanism and a collective enforcement system214..

Furthermore, in the view of the judges of the Palazzo della Consulta, Article 46 of the Convention requires States not only to adopt the individual measures necessary to put an end to the effects of the violation and provide redress, but also, if appropriate, any general measures capable or resolving the structural issue at the heart of the violation215.. Accordingly, in its laudable judgment in the Dorigo case, the Constitutional Court concluded that Article 630 of the Code of Criminal Procedure was unconstitutional in so far as it did not provide for the reopening of criminal proceedings after a final finding of an Article 6 violation.

Following the Scoppola (no. 2) judgment216., the Constitutional Court went a step further. In its exemplary judgment 210/2013, while dealing with the ‘younger brothers of Scoppola’ (i fratelli minori di Scoppola), the Consulta referred not only to the obligation to replace the penalty of the defendant Scoppola, but also to the implicit obligation to put an end to the structural problem of the domestic legal framework which had led to the Convention violation and to remove its effects with regard to all prisoners in the same situation. This was the perfect occasion for the judges of the Palazzo della Consulta to fully acknowledge the erga omnes effect of the Court's judgments. They lived up to the expectations, underscoring the existence of such effect even when the Court does not use the mechanism of the pilot judgment or impose the adoption of general measures217.. The legal effect of a final judgment of the Court, whatever its subject or form, is binding for every Contracting Party. In an excellent display of this principle, the Constitutional Court affirmed unequivocally that the erga omnes effect of the Court's judgments also encompassed the judgments of the Court delivered against other Contracting Parties218..

The embeddedness of the Convention in the Italian legal order is further promoted by the substantive intertwinement of Constitution and Convention and the interplay between Convention and domestic guarantees. Such interplay is evidently facilitated by Article 2 of the Constitution and the openness of the constitutional catalogue of human rights in so far as an open clause such as that of the Italian Constitution is the natural way of embedding rights and freedoms not explicitly granted by the Constitution, but derived from international law219.. Such openness to international law is indeed a feature of the Roman legal tradition and civilisation. In the cosmopolitan view of the eternal Gaius:

Yet a Convention-sensitive constitutional theory of fundamental rights does not suffice today. There must be a Convention-oriented constitutional theory, which is something different and more demanding. From an axiological perspective, although the Convention and the Constitution are on a par, the former prevails over the latter in cases of unavoidable conflict. Constitutional theory must be founded on this bedrock principle, especially these days when the intrinsically counter-majoritarian nature of human rights is forgotten by legislators, courts and other domestic public authorities. The domestic over-sensitiveness to some constitutional interests or, even worse, the pure material transaction between Convention rights and ‘other constitutional interests’, cannot hide behind the argumentative tool of the maximisation of fundamental rights. This would twist the meaning of Article 53 of the Convention. As President Raimondi recently stated, ‘the conformity with the Constitution of a determined legal provision does not guarantee the conformity with the Convention whose requirements in certain cases may be higher than those of the national Constitution.’221.

Bearing in mind the true meaning of Article 53 of the Convention, the relationship between the Court and supreme and constitutional courts must respect the following bright, red line. Domestic courts may go beyond the degree of Convention protection afforded to the applicant, but they cannot lag behind, not even in view of an alleged systemic consideration of other constitutional interests involved. Figuratively, the Convention protection is a ‘floor’, but not a ‘ceiling’222.. As a result, constitutional and supreme courts are indeed called upon to interpret the Court's judgments and confront them with the domestic constitutional environment in which they will be implemented. But domestic courts cannot ‘redo’ the Court's judgment; in other words, they cannot retry the case in the light of ‘other constitutional interests’ and find against an applicant who has already won the case in Strasbourg. Supreme and constitutional courts should not act as an appeal instance for the Government against Strasbourg judgments finding for the applicant. Supreme and constitutional courts should not provide a second223.or third224.chance for the Government to rediscuss a case after having lost it in Strasbourg. This would be an abstruse distortion of the Convention system. As Lord Rodger so brilliantly put it, Argentoratum locutum, iudicium finitum — ‘Strasbourg has spoken, the case is closed’225..

The majority confirm the decision in Sud Fondi (cited above) according to which the confiscation order is a ‘penalty’ within the meaning of Article 7 of the Convention.

We believe that it was a mistake to hold that Article 7 was applicable to confiscation orders as provided for in the Italian legislation on site development248.. For the reasons explained below, we believe that such confiscation measures do not constitute a ‘penalty’. While the domestic courts drew conclusions from the Court's holding in Sud Fondi, the Government explicitly invited the Court to overrule that decision. In our opinion, it would have been better to take a step back and to allow the confiscation measures to keep their essential features, which we do not consider to be incompatible as such with the Convention.

The majority stress that the concept of a ‘penalty’ in Article 7 has an autonomous meaning (paragraph 210 of the judgment). They further state that, while the starting point in any assessment of the existence of a ‘penalty’ is ‘whether the measure in question is imposed following a decision that a person is guilty of a criminal offence’, other factors may also be taken into account (paragraph 211 of the judgment).

We would have adopted a different approach. In order to assess whether a measure should qualify as a ‘penalty’, we consider that the Court should pay attention to its ‘intrinsic nature’ (see Del Río Prada v. Spain [GC], no. 42750/09, § 90, ECHR 2013), taking into account ‘the domestic law as a whole and the way it was applied at the material time’ (see Kafkaris v. Cyprus [GC], no. 21906/04, § 145, ECHR 2008). It is, in other words, on the basis of the features assigned to a measure by domestic law that the Court should come to a characterisation of that measure under the Convention. And it is for the domestic courts to explain what the content of the relevant domestic law is (see Hutchinson v. the United Kingdom [GC], no. 57592/08, § 40, ECHR 2017). In its judgment no. 49 of 2015, the Constitutional Court said the same thing, by stating that it was not for the Strasbourg Court to determine the meaning of domestic law, but only to verify whether domestic law, as defined and applied by the domestic courts, was in conformity with the Convention. We would add that our Court can only depart from the domestic courts' interpretation of domestic law when that interpretation is arbitrary or manifestly unreasonable (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 85, ECHR 2007-I; Károly Nagy v. Hungary [GC], no. 56665/09, § 71, ECHR 2017; and Radomilja and Others v. Croatia [GC], no. 37685/10, § 149, 20 March 2018).

As explained above, before and after Sud Fondi (cited above), the domestic courts have consistently interpreted the confiscation order in matters of urban policy as an ‘administrative sanction’, not as a ‘penalty’ in the sense of domestic law (see §§ 4 and 6 above). There are, in our opinion, good reasons to say so: the primary competence to order the measure lies with the administrative authorities; the order is, under domestic law, not conditional upon a conviction for an offence; the order is aimed at restoring legality, that is, repairing the damage done to the general interest, and preventing further illegalities. The latter aspect is in our opinion the most relevant, if not the decisive one, when it comes to assessing the ‘intrinsic nature’ of the measure.

The majority acknowledge that the confiscations in question were not imposed following convictions for criminal offences (see paragraphs 215-19 of the judgment). In our opinion, this is a very important element and a strong indication that the measures imposed were not ‘penalties’ within the meaning of Article 7 of the Convention.

For the majority, the fact that the confiscation measure could be imposed without a prior conviction does not necessarily rule out the applicability of Article 7 (see paragraph 217 of the judgment). We do not dispute that statement, provided that there are convincing arguments pointing in the other direction. We fail, however, to see such arguments.

It seems that the majority consider it sufficient, in order to characterise a measure as a ‘penalty’, for it to be ‘connected to a criminal offence based on general legal provisions’ (see paragraph 218 of the judgment). Such a link between the measure and an offence is, in our opinion, too vague and too remote. A measure actually imposed on a given individual cannot be considered a ‘penalty’ merely because in other circumstances, with respect to other individuals, it may be of such a nature. And what is the relevance of the reference to ‘general legal provisions’? Are measures that do not constitute a ‘penalty’ not also based on such provisions?

The majority give four reasons why, despite the fact that the confiscation orders were not imposed following a conviction for a criminal offence, they were nevertheless a ‘penalty’ within the meaning of Article 7. The majority thus develop the reasoning contained in the Sud Fondi decision (cited above).

In our opinion, these reasons are far from convincing.

The majority first refer to the fact that Article 44 of the Construction Code, which governs the confiscation measure at issue, bears the heading ‘Criminal sanctions’. This is considered to be an indication that the measure is characterised as a criminal sanction under domestic law (see paragraph 220 of the judgment).

It is true that in the Construction Code the penalties in the strict sense of the word (Article 44 § 1) and the confiscation orders (Article 44 § 2) are regulated in the same Article, under the heading ‘Criminal sanctions’. At first sight, this may seem to be a strong argument. However, upon closer analysis, we do not believe that this can be an argument at all. First of all, such a conclusion manifestly contradicts the consistent interpretation of the nature of the confiscation order by the domestic courts. Secondly, the Construction Code is the result of a codification of existing statutory provisions by presidential decree (decree no. 380 of 6 June 2001; see paragraph 105 of the judgment). A mere codification by the executive cannot alter the meaning of the statutory provisions that are codified. It is therefore relevant to look at the original provisions on criminal sanctions and confiscations, as they were contained in Act no. 47 of 28 February 1985. Sections 19 and 20 of that Act made a clear distinction between, respectively, confiscation measures and criminal penalties. Confiscation was not mentioned under the criminal penalties (see paragraphs 103 and 104 of the judgment). We therefore accept the Government's submission that the authors of the codification made a mistake (see paragraph 202 of the judgment), and consider that this mistake cannot have any consequence as to the characterisation of a confiscation measure. Finally, it is questionable whether the wording of the heading of an Article in a legislative or regulatory text can be relevant at all. According to the maxim ‘rubrica non fit ius’ (a heading does not create law), there is nothing normative that can flow from a heading.

The majority go on to refer to the nature and purpose of the confiscation, and state that the purpose of the confiscation of the applicants' property was punitive (see paragraphs 222-26 of the judgment).

Although not decisive, as the concept is autonomous under Article 7 of the Convention, we note at the outset that this is an interpretation that is not in conformity with the purpose ascribed to the confiscation measures by the domestic courts, even after Sud Fondi249..

The majority rely on three arguments for calling into question the understanding of the impugned measure by the domestic courts.

First, they refer to the post-Sud Fondi case-law of the domestic courts, which accept that the guarantees of Article 7 of the Convention apply (see paragraph 223 of the judgment). In our view, this cannot be a relevant argument for retrospectively justifying the finding in Sud Fondi. The Italian courts felt obliged to apply the guarantees of Article 7, as interpreted by the Court, because of the authority of the Court's judgments, not because they considered that this could be derived from the nature of such a confiscation measure. Moreover, the domestic courts were careful to hold (only) that the guarantees of Article 7 were to be applied, in particular the requirement of the responsibility of the person upon whom the confiscation order was to be imposed; the courts did not change their assessment of the nature of a confiscation order, in particular their view that such confiscation was a non-punitive measure.

Second, the majority refer to an ‘acknowledgment’ by the Government, in their observations under Article 1 of Protocol No. 1, that the confiscation measure pursued the purpose of punishment (see paragraph 224 of the judgment). We find this an extremely weak argument. Under Article 7, the Government are very clear in their opinion that such confiscation is not a penalty, because its aim is not to punish, but to restore the orderly use of the land and to repair the effects of unlawful site development (see paragraphs 194 (b) and 200 of the judgment). In so far as they speak of ‘punishment’ (which they place in inverted commas, see § 119 of their observations) the Government seek to show that the measure fulfilled the ‘public interest’ aim under Article 1 of Protocol No. 1, and they do so on the premise that the Court would, contrary to their argument, find that the confiscation measure falls within the scope of Article 7 of the Convention. There is no acknowledgment at all of the punitive character of the measure for the purposes of the latter provision.

Third, the majority rely on the fact that such confiscation is a mandatory measure which the domestic court must impose, irrespective of whether there has been any actual danger or a concrete risk for the environment (paragraph 225 of the judgment). It is true that punitive measures can be imposed simply because someone's conduct violated criminal law, irrespective of whether there was any harm to a victim or to the general interest. But is the same not also true for non-punitive measures aimed at the restoration of legality? We do not see why the absence of an actual danger or of a concrete risk of damage would preclude a measure of a purely administrative nature, aimed at upholding respect for the applicable legal rules.

In our opinion, there are no strong reasons to deviate from the view of the domestic courts, based on an analysis of domestic law, that confiscation under the legislation on site development is aimed at restoring legality, not at punishing the perpetrator. Administrative law is full of non-punitive measures aimed at preventing illegalities and putting an end to illegal situations. As the Constitutional Court stated in judgment no. 49 of 2015, it is for the legislature to decide on the best instruments to ensure the effective imposition of obligations and duties. The majority attribute to the confiscation measure a purpose which is not that envisaged by the legislature.

The majority further rely on the severity of the effects of a confiscation measure. They point to the fact that confiscation ‘is a particularly harsh and intrusive sanction’, for which no compensation is due (see paragraph 227 of the judgment).

We agree with this assessment. It was partly because of the absence of an assessment of the burdens imposed on the applicants, in comparison with the general interest, that we concluded that Article 1 of Protocol No. 1 had been violated (see § 12 above). We also admit that the degree of severity of the penalty is relevant for the applicability of the criminal limb of Article 6 of the Convention, assuming that there is a ‘charge’. But when it comes to the assessment of whether confiscation is a ‘penalty’ within the meaning of Article 7 of the Convention, ‘the severity of the measure … is not in itself decisive, since many non-penal measures of a preventive nature may, just as measures which must be classified as a penalty, have a substantial impact on the person concerned’ (see Bergmann v. Germany, no. 23279/14, § 150, 7 January 2016; see also, among other authorities, Welch v. the United Kingdom, 9 February 1995, § 32, Series A no. 307-A; Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006-XV; M. v. Germany, no. 19359/04, § 120, ECHR 2009; and Del Río Prada, cited above, § 82).

In short, the fact that confiscation is a harsh measure does not point decisively in the direction of a punitive nature.

The majority finally turn to the procedures for the adoption and enforcement of a confiscation measure (see paragraphs 228-32 of the judgment).

They observe in the first place that the measure is ordered by the criminal courts (see paragraph 228 of the judgment). This is undeniable, but it is not in our view a persuasive argument. It is indeed not uncommon for criminal courts to take decisions of a non-punitive nature. The best example is the possibility for criminal courts in a number of countries to order civil reparation measures for the victim of the criminal act of which the accused has been found guilty. In any event, the Court must go behind appearances (see paragraph 210 of the judgment). While confiscation measures ordered by a criminal court often are an additional penalty, this is not necessarily so in all cases. Having regard to the specific legal framework for such confiscation orders under Italian site development law, their nature is different from that of ‘ordinary’ confiscation orders. The majority do not seem to pay any attention to the specificity of the confiscation measures under review250..

The majority then reject the Government's argument according to which the criminal courts act in the place of the competent administrative authority (see paragraphs 229-32 of the judgment). What the Government seem to argue is that the competence to order confiscation is primarily a competence of the administrative authorities, and that the criminal courts have the same competence, which they can exercise in cases of failure by the administrative authorities to make use of theirs. In other words, according to the Government, a confiscation order in a situation of unlawful site development has the same content, produces the same effects and therefore is of the same (non-punitive) nature, regardless of the authority by which it is ordered (see paragraph 191 of the judgment). It seems to us that there is no answer to the essence of this argument, to which we subscribe.

Having regard to the foregoing, we conclude that there are insufficient reasons to warrant the finding that a confiscation order in Italian law, imposed by a criminal court in cases of unlawful site development, is a ‘penalty’ within the meaning of Article 7 of the Convention. The complaint based on that provision should therefore have been declared incompatible ratione materiae with the provisions of the Convention. We accordingly voted against declaring this complaint admissible.

Our analysis under Article 7 could stop here. However, we also strongly disagree with some of the requirements that the majority read into that provision. For that reason we will now also discuss the merits of the complaint.

Having found that the impugned confiscation measures can be regarded as ‘penalties’ within the meaning of Article 7 of the Convention, the majority go on to conclude that Article 7 required that these measures had to be foreseeable for the applicants and that the said provision precluded any decision to impose those measures on the applicants in the absence of a ‘mental link disclosing an element of liability in their conduct’ (see paragraph 246 of the judgment). On this basis, the majority then proceed to assess whether this latter requirement was met, bearing in mind that none of the applicants had been formally convicted and that the applicant companies were never parties to the proceedings in question (see paragraph 247 of the judgment).

The majority rely in their findings on the reasoning set forth in §§ 116-17 of the Court's judgment in Sud Fondi (cited above, as quoted in paragraph 241 of the present judgment). There the Court acknowledged that Article 7 did not expressly mention any mental link between the material element of the offence and the person deemed to have committed it. Nevertheless, the Court found that ‘the rationale of the sentence and punishment, and the ‘guilty’ concept (in the English version) and the corresponding notion of ‘personne coupable’ (in the French version), support[ed] an interpretation whereby Article 7 require[d], for the purposes of punishment, an intellectual link (awareness and intent) disclosing an element of liability in the conduct of the perpetrator of the offence, failing which the penalty [would] be unjustified’ (ibid., § 116). Moreover, the Court continued, ‘it would be inconsistent, on the one hand, to require an accessible and foreseeable legal basis and, on the other, to allow an individual to be found ‘guilty’ and to ‘punish’ him even though he had not been in a position to know the criminal law owing to an unavoidable error for which the person falling foul of it could in no way be blamed’ (ibid.). Thus, the Court concluded, a ‘legislative framework which does not enable an accused person to know the meaning and scope of the criminal law is defective not only on the grounds of the general conditions of ‘quality’ of the ‘law’ but also in terms of the ‘specific requirements of the principle of legality in criminal law’ provided for in Article 7 of the Convention (ibid., § 117).

We respectfully disagree.

Article 7 of the Convention bears the title ‘No punishment without law’ (‘Pas de peine sans loi’ in the French version). Moreover, as the Court held, the guarantee enshrined in Article 7 is an essential element of the rule of law. It prohibits the retrospective application of the criminal law to an accused's disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege). While it prohibits, in particular, the extension of the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. In other words offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts' interpretation of it and after taking appropriate legal advice, what acts and omissions will make him or her criminally liable and what penalty he or she faces on that account (see, among other authorities, Del Río Prada, cited above, §§ 77–79, and Vasiliauskas v. Lithuania [GC], no. 35343/05, §§ 153-54, ECHR 2015).

Thus, in our view, it flows directly from settled case-law that the Court's task under Article 7 of the Convention is to verify that at the time when an accused person performed the act which led to his or her being prosecuted and convicted there was in force a legal provision which made that act punishable and that the punishment imposed did not exceed the limits fixed by that provision. Hence, Article 7 is, first and foremost, a rule-of-law guarantee limiting the Contracting States' ability to impose criminal penalties retroactively and in a manner which lacks foreseeability. However, it does not in our view, as the majority today conclude, limit the States' discretion in their legislative assessment when deciding on the formulation of the subjective and objective elements of criminal liability at national level. In other words, and to be clear, Article 7 is not, and has never been, a tool for the harmonisation of substantive criminal law in the Member States of the Council of Europe.

Proceeding to a more detailed analysis of the majority's opinion, we observe that it is firstly based on ascribing a direct correlation between the foreseeability requirement under Article 7 of the Convention and the finding that, in principle, ‘a measure can only be regarded as a penalty within the meaning of Article 7 where an element of personal liability on the part of the offender has been established’ (see paragraph 242 of the judgment).

We disagree with this interpretation of the principle of legality under Article 7. In fact, the majority immediately backtrack in paragraph 243 from its finding in paragraph 242, described above, that Article 7 of the Convention requires a ‘mental link disclosing an element of liability’, by stating that this requirement ‘does not preclude the existence of certain forms of objective liability stemming from presumptions of liability, provided they comply with the Convention’. The majority then refer to the Court's case-law under Article 6 § 2 to the effect that in principle the Contracting States ‘may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence’. This is commonly termed strict or objective criminal liability. Although the Court has not had an opportunity to define in more detail what those ‘conditions’ are, limiting the imposition of strict criminal liability under the Convention, it is clear in our view that those limitations would flow from the requirements of Article 6 § 2, not from those of Article 7. In other words, whether a ‘simple or objective fact’ may justifiably be penalised under the Convention, without the prosecution having to prove a mental link, is intimately linked to the interpretation and application of the presumption of innocence guaranteed by the former, but is not a requirement flowing from the latter. In sum, although we of course do not call into question the majority's reliance on the settled methodological approach that the ‘Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions’ (see paragraph 244 of the judgment), rather than applying that approach to clarifying the relationship between Article 6 § 2 and Article 7 of the Convention, the majority have sown seeds of confusion in the interpretation and application of these two important, but conceptually different, human rights guarantees.

The majority's opinion is, secondly, based on an attempt to extrapolate from the word ‘guilty’ (‘personne coupable’) in Article 7 § 1 of the Convention, and from the rationale of the sentence and punishment, the requirement of an ‘intellectual link’, understood as awareness and intent, disclosing an element of liability in the conduct of the perpetrator of the offence, failing which the penalty will be unjustified. This interpretation of Article 7 has no basis in the Court's case-law with the exception of the Chamber judgment in Sud Fondi, which the majority of the Grand Chamber now endorse. It does not, moreover, reflect in our view a correct reading of this provision.

The first sentence of Article 7 § 1 of the Convention states that no one ‘shall be held guilty’ of any criminal offence on account of ‘any act or omission which did not constitute a criminal offence under national or international law at the time it was committed’. The rule laid down by this sentence is clear: it prohibits the retroactive application of criminal laws and has in the case-law furthermore been interpreted to require foreseeability in the application of such laws, as described above (see § 25 above). Within that context the word ‘guilty’ must be understood as referring to the traditional concept used to describe the finding of a criminal conviction under domestic laws on criminal procedure. In other words, when a national court has found that the prosecution has proved, to the required standard of proof, the subjective and objective elements of the criminal provision referred to in the indictment, it finds the accused ‘guilty’ of the offence. By contrast, this concept, within the context of Article 7 of the Convention, does not entail any requirement as to the substance of domestic criminal laws. In other words, it does not imply that such laws should be formulated as requiring a particular type of subjective (mens rea) or objective (actus reus) elements for imposing criminal liability. That is the domain of the national authorities and not for the Court, at least not under Article 7 of the Convention. Indeed, as the Court held in its landmark judgment in Engel and Others, ‘the Convention leaves the States free to designate as a criminal offence an act or omission not constituting the normal exercise of one of the rights that it protects’ (see Engel and Others v. the Netherlands, 8 June 1976, § 81, Series A no. 22). Therefore, although other substantive provisions of the Convention may set limits on the Contracting States' ability to criminalise certain conduct (see for example Dudgeon v. the United Kingdom, 22 October 1981, Series A no. 45, in the context of Article 8 of the Convention and the criminalisation of certain homosexual acts between consenting adults), Article 7 is confined to prohibiting, in general terms, the retroactive application of criminal laws and to require that these laws be foreseeable and accessible. It does not regulate the substance of such laws.

Finally, the majority's finding, requiring under Article 7 of the Convention a ‘mental link disclosing an element of liability in [the applicants'] conduct’ (see paragraph 246 of the judgment), is the basis upon which they proceed to examine whether the imposition of the confiscation measure on Mr Gironda and on the applicant companies breached that provision, as either they were not convicted formally of the offence of unlawful site development, within the meaning of the Court's judgment in Varvara, or the measure was imposed without them being parties to the criminal proceedings (see paragraphs 248-75 of the judgment).

However, in our view there is no need to interpret Article 7 of the Convention out of context to provide for the necessary guarantees in such situations. Those protections flow naturally from Article 1 of Protocol No. 1 and Article 6 § 1. As we explained above, it is clear that imposing a confiscation measure on a party in judicial proceedings, where that party has not had the opportunity to defend itself, will hardly be considered a proportionate interference with the right to the enjoyment of property (see § 12 above). Furthermore, such proceedings will also invariably breach the requirement of a fair trial guaranteed by Article 6 § 1 of the Convention, irrespective of whether the imposition of the confiscation measure is examined under the civil or criminal limb of that provision (see § 14 above).

In sum, we consider that by interpreting Article 7 of the Convention to require a mental link for the imposition of a criminal measure, the majority have imbued content to the principle of legality in criminal law which does not rationally conform with the nature and purpose of this fundamental guarantee of the rule of law as it finds its expression in an international treaty on human rights setting minimum standards of non-retrospectiveness and foreseeability in criminal cases.

Lastly, the extensive understanding of the scope of application of Article 7 in Sud Fondi (cited above) had left the domestic courts with considerable difficulties. They nevertheless decided that they would apply the guarantees contained in Article 7 (see § 6 above). In Varvara (cited above) the Court also interpreted the substantive requirements of Article 7 in an extensive manner. While the present judgment does not follow Varvara all the way, we would have preferred it if, on the merits, it had returned to the undisputed pre-Varvara interpretation of Article 7, thus avoiding any unnecessary further upset to the Italian system of confiscations in site development cases.