| Applicant name | GIULIANO GERMANO |
| Applicant type | Natural Person |
| Number of applicants | 1 |
| Country | Italy |
| Application no. | 10794/12 |
| Date | 22/06/2023 |
| Judges | Marko Bošnjak, President, Krzysztof Wojtyczek, Alena Poláčková, Ivana Jelić, Gilberto Felici, Erik Wennerström, Raffaele Sabato |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Positive obligation |
| Type of privacy | Procedural privacy; relational privacy; informational privacy |
| Keywords | Private social life; chilling effect; quality of law; even if; procedural standards; |
| Facts of the case | Applicant was violent to his wife; they divorced. She asked for police protection; she received protection. Applicant complained on domestic level about no being allowed to express his views in the case. The national court, however, found that an exception to the respect of the individual’s participation rights was justified in cases of strict urgency and necessity, which had to be sufficiently demonstrated and justified in the reasoning of the order. The domestic court further observed that a police caution was not an administrative act whose content was predetermined, as it presupposed a complex assessment of the relevant factual circumstances. Therefore, the restriction of the individual’s participation rights was not justified. On appeal, however, the lower court judgement was squashed. The court of appeal found that the stalking-prevention proceedings were by their very nature characterised by the need for a prompt and immediate response. Therefore, it considered that the failure to notify the applicant of the institution of the administrative proceedings and to hear him before the imposition of the measure had not amounted to a violation of the applicant’s participation rights, as he could have obtained a full review of the decision by directly addressing a request for review to the police authority or by lodging an appeal with the higher administrative authority, namely the local prefect. |
| Analysis | Several points are worthwhile discussing: 1. The applicant invokes both Article 6 and 8 ECHR, but the ECtHR, pointing to the procedural requirements implicit in the substantive provisions of the Convention, concludes that it can deal with the case solely under the right to privacy. 2. Pointing to the findings of the court of appeal, the government argues that the applicant had not exhausted all domestic remedies. The ECtHR found, however, that the applicant did immediately take action by going to court and that this was, at least theoretically, an effective remedy, as evidenced by the initial judgment by the lower court. That is why he had done enough to exhaust the domestic remedies: ‘the Court concludes that the applicant used one of the remedies available in the domestic legal system and that that remedy was, despite its outcome, effective. Accordingly, as the applicant cannot be expected to pursue more than one of several available remedies, the Government’s objection must be dismissed (§70).’ 3. As to the question whether there has been an interference with the applicants rights, the ECtHR interestingly reiterates that ‘private life’ in the broad sense, including the right to lead a private social life, that is, the possibility for the individual to develop his or her social identity. Article 8 protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world. It also includes the right to protection of honour and reputation. Obviously, also, Article 8 ECHR enshrines the protection of family life. All three are at stake, the Court feels. The Court points out that given the general wording of the minutes of the caution and the need to carefully modulate the content and nature of communications and contacts with his wife in order not to breach the obligations stemming from the measure, the applicant could have faced limitations on the possibility of organising visits with his daughter, spending time with her and, therefore, exercising his parental responsibilities, which is in the best interests of his child and the need to guarantee her right to co-parenting. It could also have repercussions on his contact with friends. Being treated as a stalker had an impact on his reputation. That is why the Court does not accept the government’s argument that the imposition of the measure in issue did not actually have an impact on the applicant’s right to private and family life as, at the very least, it had a chilling effect on the exercise of those rights. The fact that the ECtHR scrapes three sub-rights (the right to private social life, the right to contact with family members, and the right to reputation) under Article 8 ECHR together and even then find that there may have been no direct harm, but instead a chilling effect seems to show that the interference and concrete impact on the rights of the applicant were not easy to find. It might also be difficult to accept for some that a violent husband that is retrained from stalking his ex can claim that such has a chilling effect on his private social life with friends. Reputational harm, moreover, seems the effect of his own violent behaviour, and only indirectly through the restraining order. 4. The Court devotes considerable attention to the quality of law criterion. The applicant argued that that provision did not allow him to foresee what behaviours would lead to the imposition of the measure, that the obligations imposed on him were unclear and extremely wide, that he had been unable to protect his interests, as he was not allowed to participate in the administrative proceedings, and that the court did not sufficiently review the legality of the measure, which furthermore remained in force for an indefinite period of time and in respect of which no right to obtain a review or a revocation was provided by the applicable legal framework. The ECtHR differentiates between three different issues: (i) whether the domestic law sufficiently delimited the scope of discretion conferred on the questore in adopting the measure; (ii) whether the obligations imposed on the applicant on account of the caution were formulated with sufficient precision to enable him to regulate his future behaviour; and (iii) whether Italian law afforded a measure of legal protection against arbitrary interferences by public authorities with the applicant’s right to private and family life. On all points, the ECtHR finds that the legal framework was sufficient. The second point is interesting, because the Court had found a chilling effect to exist, inter alia, because of the wide way in which the restraint order was formulated, but here, the ECtHR relatively succinctly that ‘on the basis of the text of the caution, the applicant knew or should have known that the behaviour proscribed by the measure corresponded to the crime of stalking and, in particular, to acts of “threat and harassment” repeated in such a way as to cause his wife a persisting and serious state of anxiety, fear and concern for her personal safety (§108).’ On the third point, the ECtHR seems to find a violation of Article 8 ECHR, but then uses an ‘even if’ reasoning to avoid answering this question, because it concludes that in any case, the necessity requirement had not been met in this case. ‘ The Court considers that the fact that a domestic legal framework does not provide for a time-limit for the effects of measures affecting rights protected under the Convention, or the right to obtain a review or revocation of them should they no longer be justified, is problematic from the point of view of the guarantees against arbitrariness imposed by the principle of legality. Article 53 § 2 of the Istanbul Convention stipulates that restraining or protection orders in cases of domestic violence are to be “issued for a specified period or until modified or discharged”, and paragraph 271 of the Explanatory Report to the Istanbul Convention clarifies that this is imposed by the principle of legal certainty. However, taking into account the Court’s conclusions with regard to the necessity and proportionality of the measure in the specific circumstances of the present case, it is not necessary to assess whether this factor alone leads to the conclusion that the interference in question was not “in accordance with the law”, within the meaning of Article 8 of the Convention (§120).’ 5. The Court finds that several legitimate aims are at stake here, namely the prevention of disorder and crime and the protection of health, or the protection of the rights and freedoms of others, instead of, for example, only the prevention of crime, which seems to be the most directly relevant ground. 6. With respect to the necessity requirement, the Court primarily goes to the procedural requirements implicit in Article 8 ECHR, such as the right to be heard. It is interesting that this discussion does not take place under the discussion of the quality of the legal regime, where this discussion would intuitively fit best. The ECtHR notes that the applicant was not heard before the issuing of the caution and thus not afforded the opportunity to put forward arguments in support of his position. The caution was granted on the basis of the arguments and evidence presented by the person who applied for the caution only. Moreover, the minutes of the caution did not set out the pressing circumstances which allegedly necessitated an urgent measure. It finds that the court of appeal did not carry out an independent review of whether there was an imminent risk for the applicant’s wife’s safety or other reasons justifying the failure to hear the applicant. It follows that no justification was provided for the derogation from the applicant’s right to be heard in the administrative proceedings. The police authorities heard the testimonies of seventeen different individuals mentioned by the applicant’s wife in her request; it is unclear to the ECtHR why they could not have heard the applicant. 7. When assessing whether the domestic authorities provided relevant and sufficient reasons for the measure, the Court mentions several factors that militate in favour of strict scrutiny: (i) the measure produces serious consequences, as it entails the possibility of prosecution for the criminal offence of stalking even in the absence of a criminal complaint lodged by the victim and the automatic application of an aggravating circumstance in the event of conviction; (ii), although the Court concluded that the measure was in accordance with the principle of legality, in assessing its proportionality it must take into account that the obligations imposed on the applicant were worded in very general terms, that the measure remains in force for an indefinite period of time and that, at least when the caution was issued, there was no right to obtain a periodic review or reassessment of the measure aimed at its revocation; and (iii) the measure was adopted without previously allowing the applicant to put forward his arguments. Thus, the ECtHR repeats the points it had earlier discussed under the quality of law criterion and partially when assessing whether there was an interference at all in this case. The Court repeats that the minutes of the caution lacked in reasoning and that the relevant facts were worded in an extremely generic fashion. Perhaps more importantly, there was no reference in the minutes of the caution to the fact that the vast majority of the witnesses had not confirmed the applicant’s wife’s version of the facts, and there was no assessment of the facts resulting from the inquiries carried out by the police. 8. As to the question whether the measure was subjected to a sufficient judicial review, the Court again points to the lack of reasoning in the decion-making of domestic authorities. It also feels that the court of appeal did not carry out an independent review of whether the measure had a reasonable basis in fact, as it did not examine any evidence to confirm or refute the applicant’s allegations. In light of all the above, the Court finds a violation of Article 8 ECHR. 9. In a long concurring opinion, judge Sabato finds that the majority’s reasoning in this case represents many backward steps in the protection, under the Convention, of women from gender-based violence in general, and stalking in particular. ‘Overprotection of the alleged perpetrator, and wanting at all costs to obtain his “version”, in opposition to that of the alleged victim, will – as experience shows – usually lead to mutual accusations of false statements, allegations of provocative behaviour, or even allegations of reciprocal violence. In some case, there might be grounds for issuing injunctions against both the victim and the perpetrator. This is something that should be avoided, as it can even – by a well-known phenomenon of heterogony of ends – jeopardise the establishment of the truth (Concurring Opinion, § 56)’. |
| Other Article violation? | No violation 6 ECHR |
| Damage awarded | (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 9,600 (nine thousand six hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; |
| Documents | Judgment |