The Facts of the case 

The applicants, Giuseppe Isaia (born 1964), Carmela Scarletta (born 1968), and their son, Davide Isaia (born 1991), reside in Bagheria, Sicily. Mr Giuseppe Isaia had multiple convictions for serious crimes, including extortion, drug trafficking, robbery, and maintained criminal activity after he was released from prison. His son Davide Isaia also committed offences as a young adult. At the same time, Carmela Scarletta has never been personally convicted but was considered by Italian authorities to hold assets on behalf of her husband. 

The Italian authorities requested the preventive confiscation of several family assets, claiming that they were acquired unlawfully. Although some properties were registered in his wife's and son's names, domestic courts concluded that Giuseppe Isaia actually controlled them. Analysis revealed a significant disproportion between the family's legal income and the value of its assets, confirming suspicions of unlawful enrichment.

Domestic courts ordered the confiscation of the assets in question. Appeal courts largely upheld these decisions. The applicants claim a violation of Article 6 (right to a fair trial), arguing that the domestic courts had failed to properly consider the evidence and establish a direct link between the assets and criminal activity.

Applicable Legal Framework

The preventive confiscation imposed on the Isaia family must be considered in the broader context of Legislative Decree No. 159/2011 (the so-called Anti-mafia Code). In accordance with Articles 1, 4, and 16 of the Anti-Mafia Code, these measures apply to persons considered to represent a habitual danger due to their recurring criminal activity or whose lifestyle is arguably sustained by illegal income. The domestic authorities made this assessment on the account of the first applicant and, to a lesser extent, his son and wife. The domestic courts relied on the first applicant’s prior convictions for extortion, robbery, and drug offences, as well as his ongoing criminal involvement. They classified him as habitually living off the proceeds of crime within the meaning of Article 1(1)(b) of the Anti-Mafia Code, thus providing the legal basis for preventive confiscation under Article 24 of the same act. The Italian courts found a disproportion between the family’s declared income and the value of the assets acquired, concluding that the first applicant had failed to justify the lawful origin of several properties registered in the names of his wife and son. These registrations were considered as intended to conceal the father’s actual control over the assets. Accordingly, the Art. 26 legal presumption applied that transfers to close relatives are fictitious unless rebutted by clear evidence. The domestic courts further relied on the principles established by the Italian Court of Cassation decision No. 4880/201 on the temporal correlation between the period of involvement in criminal activities and the acquisition of the asset, concluding that sufficient factual links existed to justify confiscation. 

The applicants were required to prove the legality of the acquisition of the assets, but the courts found they failed to do so. The applicants argued before the ECtHR that the domestic courts misapplied the law's criteria, extended the time frame for confiscation beyond what domestic law permits, and improperly relied on alleged fictitious ownership despite the wife and son having genuine, independent financial resources.

The Strasbourg Court was called upon to assess whether Italy’s preventive confiscation regime, as applied in this case, complied with the requirements of lawfulness, foreseeability, and proportionality under Article 1 of Protocol No. 1 to the ECHR.

The majority of the Court concluded that there had been a violation of Article 1 of Protocol No. 1, emphasising that the preventive confiscation measure applied in this case went beyond what was necessary to achieve the legitimate aim of preventing unlawful enrichment through criminal activity. Mr Giuseppe Isaia committed several property-related crimes between 1980 and 1998, and another crime in 2008. Nonetheless, the authorities only initiated the confiscation procedure in 2018, almost 10 years after the last offence and long after the period of continuing dangerousness had ended. Such a delay significantly affects the applicants' ability to prove the lawful origin of their property in accordance with Article 24 of the Code of Anti-Mafia. The considerable delay between the first applicant's last criminal activity and the initiation of the confiscation proceedings, combined with the lack of specific evidence linking the seized assets to illegal activity, rendered the interference with the property right disproportionate. 

Importantly, the Court did not find a violation of Article 6 of the Convention. While acknowledging the stringent nature of the burden of proof placed on the applicants and the reliance on legal presumptions, the Court held that the proceedings as a whole satisfied the requirements of a fair hearing. The violation, therefore, concerned only Article 1 of Protocol No. 1, and not Article 6. 

The judgment thus reaffirms that, although preventive confiscation mechanisms pursue an important public interest, their application must remain proportionate, predictable and supported by sufficient precise and concrete evidence in order to comply with the ECHR  standards.

Judge Sabato dissented from the majority. According to him, the applications should have been declared inadmissible on the grounds of insufficient factual and legal basis. Even if they had been declared admissible, he considers that the preventive confiscation measures were proportionate, justified and compatible with both domestic law and the ECHR. He cautions that the majority approach creates a risk of confusion in the Court's case law on preventive confiscation and undermines the authority of domestic courts acting under the ECHR. 

Conclusion

The applicants challenged the legitimacy of the preventive confiscation measures foreseen by the Anti-Mafia Code, arguing that the Italian courts had failed to establish a clear link between their property and their passed criminal activity and had unlawfully shifted the burden of proof, in breach of articles 6 ECHR and 1, Protocol 1 to the ECHR The judgment found that Article 1, Protocol 1 to the ECHR was actually violated.

Separate opinions highlighted the complexity of the case.  In particular, Judge Sabato dissented, arguing that the applicants failed to prove that the domestic courts infringed Italian law and that the confiscation measures were neither justified, proportionate, nor properly reasoned. He advised that the majority approach risked undermining the authority of the domestic courts and creating uncertainty in the ECHR case law on preventive confiscation.

In sum, this case highlights the need for strict proportionality, clear evidentiary links and timely procedures when applying preventive confiscation measures. While states have a legitimate interest in combating illicit enrichment associated with organised crime, the ECtHR reaffirmed that interference with property rights must always be balanced against the human right to the lawful enjoyment of property.