EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 33454/96

Marino Albè

against

Italy

REPORT OF THE COMMISSION

(adopted on 1 December 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-13) 3

III. OPINION OF THE COMMISSION

(paras. 14-25) 4

A. Complaint declared admissible

(para. 14) 4

B. Point at issue

(para. 15) 4

C. As regards Article 6 para. 1 of the Convention

(paras. 16-24) 4

CONCLUSION

(para. 25) 5

APPENDIX : DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 6

I. INTRODUCTION

1. The present Report concerns Application No. 33454/96 introduced on 18 June 1996 against Italy and registered on 16 October 1996.

The applicant is an Italian national, born in 1950 and currently residing in Porto Mantovano ( Mantova ). Before the Commission, he is represented by Mr Marco Della Luna , a lawyer practising in Mantova .

The respondent Government are represented by Mr Umberto Leanza , Head of the Diplomatic Legal Service, Ministry of Foreign Affairs.

2. The application was communicated by the Commission (First Chamber)to the Government on 14 January 1998. Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 1 July 1998. The application was declared inadmissible as to the remainder. The decision on admissibility is appended to this Report. Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of former  Article 28 para. 1 (b) of the Convention can be secured, the Commission, after deliberating, adopted this Report on 1 December 1998 in accordance with former Article 31 para. 1 of the Convention, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

A. PERENI ï‚„

K. HERNDL

E. BIELI NAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

4. In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by the State concerned.

5. The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

6. In his application, in which he relies on Article 6 para. 1 of the Convention, the applicant complains about the length of the proceedings commenced before the Mantova District Court. 

7. In 1986, criminal proceedings were instituted against the applicant by the Mantova Public Prosecutor's Office.

8. On 15 March 1989, the Mantova investigating judge summoned the applicant to appear before the Mantova District Court on charges of fraud, misappropriation and bankruptcy. In an order of 20 February 1990, the Mantova District Court fixed the hearing at 15 March 1990. On that date, the applicant requested that some witnesses be examined. In an order delivered the same day, the District Court rejected the applicant's request, observing that such examinations would have been of no relevance.

9. In a judgment delivered on 13 June 1990 and filed with the registry on 27 June 1990, the District Court convicted the applicant of bankruptcy and sentenced him to eight months' imprisonment. It held that the charges of fraud and misappropriation had to be dismissed because of an amnesty.

10. On 14 June 1990, the applicant lodged an appeal before the Brescia Court of Appeal. On 31 January 1991, the case-file was transmitted to the said court. In an order of 16 February 1996, the Court of Appeal fixed the date of the hearing at 14 March 1996.

11. In a judgment delivered the same day and filed with the registry on 22 March 1996, the Brescia Court of Appeal acquitted the applicant in respect of the charge of fraud and confirmed the remainder of the first instance decision.

12. On 15 March 1996 the applicant appealed on points of law against this judgment, alleging, inter alia , a violation of Article 6 of the Convention.

13. In an order of 12 November 1996, the Court of Cassation declared the applicant's appeal inadmissible for failure to comply with Section 581, para. 1 c) of the Code of Criminal Procedure, according to which an appeal must indicate the specific legal arguments and the factual elements on which each single claim is based.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

14. The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.

B. Point at issue

15. The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 of the Convention.

C. As regards Article 6 para. 1 of the Convention

16. The relevant part of Article 6 para. 1 of the Convention provides as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ..."

17. The proceedings in question concerned the criminal charges brought against the applicant and they accordingly fall within the scope of Article 6 para. 1 of the Convention.

18. As concerns the point of departure of the period to be taken into consideration, the Commission notes that the applicant apparently learnt of the bringing of the prosecution against him only on 15 March 1989, the date on which the Mantova investigating judge summoned him to appear before the Mantova District Court. This date should accordingly be taken as the date from which there was a "charge" within the meaning of Article 6 para. 1 (see, mutatis mutandis , Eur. Court HR, Corigliano v. Italy judgment of 10 December 1982, Series A no. 57, pp. 13-14, paras. 34-35). The proceedings at issue ended on 12 November 1996, the day on which the Court of Cassation declared the applicant's appeal on points of law inadmissible (see Eur. Court HR, Baggetta v. Italy judgment of 25 June 1987, Series A no. 119, p. 32, para. 20). The overall length was thus seven years, seven months and twenty-seven days for three degrees of jurisdiction.

19. The Commission recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the authorities dealing with the case (see Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).

20. The Government observe that the length of the proceedings before the Mantova District Court and the Court of Cassation cannot be regarded as being unreasonable. As to the second instance proceedings, the Government maintain that the delay in fixing the date of the hearing was due to the excessive workload of the Brescia Court of Appeal.

21. The applicant argues that his case was a very simple one and contends that the excessive length is due to the conduct of the judicial authorities. He criticises the way in which the investigations have been carried out and observes that the backlog of the Brescia Court of Appeal cannot absolve the Government from complying with the "reasonable time" requirement set forth in Article 6 para. 1 of the Convention.

22. The Commission first notes that the case was not particularly complex.

It furthermore observes that no substantial delay seems to be imputable to the applicant. 

As to the conduct of the authorities dealing with the case, it is to be noted that the proceedings before the Mantova District Court and the Court of Cassation lasted respectively about one year and three months and about seven months. Therefore, their length cannot be regarded as unreasonable.             

However, the Commission notes the existence of a substantial period of inactivity imputable to the State between 31 January 1991 (transmission of the case-file to the Brescia Court of Appeal) and 16 February 1996 (fixing of the date of the hearing before the said court). As a result, the State authorities were responsible for a delay of five years and fifteen days. No convincing explanation for this delay has been advanced by the respondent Government. The excessive workload of the Brescia Court of Appeal does not constitute such an explanation (see, amongst a large number of other authorities, Eur. Court HR, Scuderi v. Italy judgment of 24 August 1993, Series A no. 265-A, p. 8, para. 16).

23. The Commission reaffirms that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on any criminal charge brought against him within a reasonable time (see Baggetta v. Italy, op. cit., pp. 32-33, para. 23).

24. In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings was excessive and failed to meet the "reasonable time" requirement.

CONCLUSION

25. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

M.- Thérèse SCHOEPFER        S. TRECHSEL

     Secretary    President

to the Commission    of the Commission