EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 29530/95

Antonio Rossi

against

Italy

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-5) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 6-11) 2

III. OPINION OF THE COMMISSION

(paras. 12-23)              3

A. Complaint declared admissible

(para. 12) 3

B. Point at issue

(para. 13) 3

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

(paras. 14-22)              3

CONCLUSION

(para. 23) 5

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION 6

I. INTRODUCTION

1. The present Report concerns Application No. 29530/95 introduced on 4 November 1995 against Italy and registered on 12 December 1995.

The applicant is an Italian citizen, born in 1952 and resident in Avellino . The applicant is represented before the Commission by Mr Giuseppe Argenio , a lawyer practising in Avellino .

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

2. The application was communicated to the Government on 16 October 1996. 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 10 September 1997. The decision on admissibility is appended to this Report. The applicant has submitted observations on the merits of the case on 27 October 1997.

3. Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 14 January 1998 in accordance with Article 31 para. 1 of the Convention, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

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 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 of the length of the proceedings before the Naples Magistrate, and in particular before the Naples Court of Appeal.

7. On 11 June 1986 a Public Notary reported to the Avellino Magistrate that the applicant had issued two uncovered cheques ; preliminary investigations against the applicant were thus started and on 3 July 1986 transferred to the Naples Magistrate for reasons of competence. On 21 October 1986 the applicant filed with this Magistrate a request that his case be dealt with promptly. On 28 October 1986 the Naples Magistrate summoned the applicant to appear before him at the hearing of 7 April 1987. By a judgment delivered on the same day and filed with the Registry on 21 April 1987, the Magistrate convicted the applicant of having issued uncovered cheques and sentenced him inter alia to two months' imprisonment.

8. On 7 April 1987, the applicant lodged an appeal before the Naples Court of Appeal. On 25 May 1989, he filed a request that his case be dealt with promptly. The first hearing before the Court of Appeal, fixed on 25 January 1990, was adjourned. On 30 January 1990 the applicant declared that he did not intend to benefit from an amnesty and requested that the charges against him be dropped or, alternatively, that his case be dealt with promptly. On 10 April 1990, the Court of Appeal, having noted that the applicant's counsel had not been informed of the date of the hearing, decided to adjourn the proceedings. On 12 April 1990 the applicant requested again that his case be dealt with promptly. On 26 May 1990 he reiterated that he did not intend to benefit from the amnesty. By order of 10 July 1990, the Court of Appeal summoned certain witnesses and postponed the case until 25 October 1990. The hearing of 13 November was adjourned because on that day lawyers practising in the Naples District were on strike. By a judgment delivered on 31 January 1991 and filed with the Registry on 5 February 1991, the Naples Court of Appeal annulled the judgment of the Naples Magistrate and held that the charges against the applicant had to be dismissed because of the amnesty.

9. On 2 February 1991, the applicant appealed on points of law against this judgment. By a judgment delivered on 7 May 1992 and filed with the Registry on 17 June 1992, the Court of Cassation quashed the judgment and referred the case back before another chamber of the Naples Court of Appeal.

10. In the subsequent proceedings, the hearings of 16 March and 26 June 1993 were adjourned at the applicant's request, while the hearings of 3 December 1993 and 27 May 1994 were postponed because lawyers practising in the Naples District were on strike. By a judgment delivered on 12 October 1994 and filed with the Registry on 13 October 1994, the Naples Court of Appeal held that the charges against the applicant were time-barred.

11. On 5 January 1995 the applicant appealed on points of law against this judgment; by a judgment of 9 May 1995, filed with the Registry on 22 July 1995, the Court of Cassation quashed the impugned judgment and acquitted the applicant.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

B. Point at issue

13. 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 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

14. The relevant part of Article 6 para. 1 (Art. 6-1) 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 ..."

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

16. These proceedings, which began at latest on 21 October 1986 and ended on 9 May 1995, lasted eight years, six months and eighteen days.

17. 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).

18. According to the respondent Government, there were no periods of total inactivity during the investigations. They point out that the first instance proceedings have been dealt with speedily. As to the two sets of proceedings before the Naples Court of Appeal, the Government maintain that their length is due to the conduct of the applicant, who failed to correctly identify the witnesses which, according to the Government, were examined on his behalf. Moreover, they point out that the applicant requested the adjournment of the hearings of 25 January and 25 October 1990. They argue that in view of all the circumstances of the present case, the overall duration of the proceedings cannot be regarded as being unreasonable.

19. The applicant argues that his case was a very simple one and contends that the length is due to the conduct of the judicial authorities. He furthermore observes that he applied for the hearing to be adjourned only twice - namely on 16 March and 26 June 1993 - for serious reasons of health and recalls that on several occasions he asked for his case be dealt with promptly. He notes that the witnesses to which the Government make reference in their observations have not been examined on his behalf, but were summoned on the Court's of Appeal own motion. In his further observations on the merits, the applicant recalls that under the Italian Court's of cassation case-law, the prescription of the charges is an expedient aimed to offer to an accused person a substantial protection of his right to trial within a reasonable time. Noting that on 12 October 1994 the Naples Court of Appeal declared the charges against him time-barred, the applicant argues that in his case the length of the proceedings cannot but be considered excessive.

20. The Commission first notes that the case was not complex.

As to the applicant conduct, it is to be noted that no relevant document has been provided by the Government in order to support their allegation that the hearings of 25 January and 25 October 1990 have been adjourned at the applicant's request. Accordingly, the corresponding delays cannot be imputed to the applicant.  On the other hand, the Commission observes that the hearings of 16 March and 26 June 1993 were adjourned at the request of the applicant, who must therefore be held responsible for a delay of more than eight months. However, the Commission considers that the applicant's conduct is not in itself sufficient to explain the length of the proceedings.

As to the hearings adjourned because of the lawyers' strikes (13 November 1990, 3 December 1993 and 27 May 1994), the Commission recalls that an event of that kind cannot in itself render a Contracting State liable with respect to the "reasonable time" requirement; however, the efforts made by the State to reduce any resultant delay are to be taken into account for the purposes of determining whether the requirement has been complied with (see Eur. Court HR, Papageorgiou v. Greece judgment of 22 october 1997, par. 47, to be published in Reports of Judgments and Decisions 1997).

However, having regard to what follows, the Commission is of the opinion that in the present case it is not necessary to determine whether the efforts made by the State to reduce the resultant delays were adequate.   

The Commission notes the existence of the following periods of inactivity imputable to the State: between 7 April 1987 (lodging of an appel before the Naples Court of Appeal) and 25 January 1990 (date of the first hearing before the said Court of Appeal); between 2 February 1991 (on which date the applicant appealed on points of law) and 7 May 1992 (when the Court of cassation delivered its judgment). Moreover, on 10 April 1990 the proceedings were adjourned by the Naples Court of Appeal to 10 July 1990 because the applicant's counsel had not been informed of the date of the hearing. As a result, the State authorities were responsible for a delay of four years, three months and twenty-three days. No convincing explanation for these delays has been advanced by the respondent Government. In this context, it is to be recalled that on several occasions the applicant asked for his case to be dealt with promptly, without obtaining a substantial speeding up of the proceedings.

21. 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 Eur. Court HR, Baggetta v. Italy judgment of 22 June 1987, Series A no. 119, p. 26, para. 23).

22. 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

23. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

  M.F. BUQUICCHIO   M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber