Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22120/93

G.P.

against

Italy

REPORT OF THE COMMISSION

(adopted on 27 November 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 5). . . . . . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 6 - 27) . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 28 - 42). . . . . . . . . . . . . . . . . . . . . . . . . .4

A. Complaint declared admissible

(para. 28). . . . . . . . . . . . . . . . . . . . . . . . . .4

B. Point at issue

(para. 29). . . . . . . . . . . . . . . . . . . . . . . . . .4

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

(paras. 30 - 41). . . . . . . . . . . . . . . . . . . . . . .4

CONCLUSION

(para. 42). . . . . . . . . . . . . . . . . . . . . . . . . .5

APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

OF THE APPLICATION . . . . . . . . . . . . . . . . . . . . . .6

I. INTRODUCTION

1. The present Report concerns Application No. 22120/93 introduced

on 16 June 1993 against Italy and registered on 25 June 1993.

The applicant is an Italian national born in 1951 and currently

residing in Isola della Scala (Verona).

The respondent Government were represented by

Mr. Umberto Leanza, Head of the Diplomatic Legal Service, Ministry of

Foreign Affairs.

2. The application was communicated to the Government on

28 February 1995. 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 12 April 1996; the

remainder of the application was declared inadmissible. The decision

on admissibility is appended to this Report.

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 27 November 1996 in accordance

with Article 31 para. 1 of the Convention, the following members

being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

4. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by Italy.

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 December 1980 or January 1981, the applicant did certain

repairs on a Mercedes on behalf of a customer.

7. On 16 January 1986, the police reported to the Sondrio Public

Prosecutor's Office that on that same day they had seized this

Mercedes because its registration number appeared to have been

altered.

8. On 2 May 1986, the police informed the Public Prosecutor that

they suspected that the car had been stolen and then received after

the applicant had altered its registration number.

9. On 5 May 1986, the file was sent to the Verona Public

Prosecutor's Office.

10. On 18 July 1986, the Verona Public Prosecutor requested the

Isola della Scala Magistrate (Pretore) to question the applicant on

her behalf. By an act ("comunicazione giudiziaria") of

2 October 1986, the applicant was informed that preliminary

investigations had been opened against him and was summoned to appear

before the Magistrate of Isola della Scala on 10 October 1986 in

order to be questioned on suspicion of "receiving a stolen Mercedes

from B.".

11. On 10 October, the applicant was interrogated; he claimed that

he had done some repairs on the bodywork of the Mercedes, but firmly

denied having altered its registration number.

12. On 26 January 1987, the Public Prosecutor requested that the

applicant be summoned to appear before the Verona Court.

13. By an act delivered by the Presiding judge of the Verona Court

on 16 February 1989, the applicant was summoned to appear together

with five coaccused before the Verona court for the hearing of

30 March 1989.

14. On 30 March 1989, the applicant requested to be allowed to

inspect and photograph the car, and also requested an expert opinion;

the court rejected the applicant's requests. On the same day, having

noted a difference between the facts as set out in the indictment and

as they emerged in the course of the hearing, the court sent the case

back to the Public Prosecutor's office in order to have the

indictment amended.

15. On 17 October 1990, the applicant was summoned to appear before

the Public Prosecutor on 17 November 1990, when he was questioned.

16. On 28 December 1990, the Sondrio police filed with the Public

Prosecutor's office, at the latter's request, a copy of the expert

opinion carried out on the car in the course of the civil proceedings

meanwhile instituted against the applicant and his coaccused by the

last owner of the car before the Sondrio court.

17. On 15 April 1991, the Public Prosecutor requested the

Investigating Judge that the applicant be charged with "receiving a

stolen Mercedes from an unidentified person" and committed for trial.

18. By an act of 10 June 1991, the applicant was committed for trial

before the Verona court.

19. On 6 November 1991, the Verona court annulled the applicant's

committal for trial on the ground of a procedural informality due to

the entering into force, on 24 October 1989, of the new code of

criminal procedure, and sent the case back to the Public Prosecutor's

office.

20. On 7 November 1991, the applicant renewed his request to be

allowed to inspect the car; the following day, his request was

upheld.

21. On 5 December 1991, the applicant inspected the car in the

presence of a policeman. Photographs were taken of the repairs done

by the applicant.

22. On 9 January 1992, the applicant filed with the court the

description of the results of the inspection and the relevant

photographs.

23. On 23 January 1992, the Public Prosecutor requested the Judge

for the Preliminary Hearing ("Giudice dell'Udienza preliminare") that

the applicant be committed for trial.

24. On 20 February 1992, the applicant was summoned to appear before

the Judge for the Preliminary Hearing on 7 April 1992.

25. At the hearing of 7 April 1992, the applicant was granted a

time-limit to 25 June 1992 for a private expert opinion on the car.

26. At the hearing of 25 June 1992, the private expert opinion was

filed with the court. Two experts called by the Public Prosecutor

were heard; after examining the private expert opinion, they

confirmed the applicant's description of the repairs he had done on

the car. The applicant filed a request for a speedy trial. By a

judgment on the same day, he was acquitted together with the

coaccused.

27. The judgment was filed with the register on 25 January 1993 and

became final on 2 March 1993.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

28. The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

29. 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

30. 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 ..."

31. The proceedings in question concerned the determination of the

charge of receiving a stolen car, brought against the applicant. The

proceedings accordingly fall within the scope of Article 6 para. 1

(Art. 6-1) of the Convention.

32. These proceedings, which began on 2 October 1986 with the

official notification to the applicant that preliminary

investigations against him had been started (see Eur. Court H.R.,

Deweer v. Belgium judgment of 27 February 1980, p. 24, para. 42), and

ended on 2 March 1993, when the applicant's acquittal became final,

lasted six years and five months.

33. The Commission recalls that the reasonableness of 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 applicant's conduct 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).

34. According to the Government, the length of the period in

question is due to the complexity of the case and the entering into

force of the new code of criminal procedure in October 1989.

35. The applicant contends that the only delay attributable to the

entering into force of the new code is that between 15 April 1991 and

6 November 1991 (when the applicant's committal for trial was

annulled on the ground of a procedural informality). He argues that

the excessive length is due to the conduct of the judicial

authorities, namely to their refusal to allow the applicant to

inspect the car at the beginning of the preliminary investigations,

which would have resulted in him acquitted already in 1989.

36. The Commission does not share the Government's view that the

case was particularly complex.

37. The Commission further observes that no delay is attributable

to the applicant's conduct.

38. The Commission notes certain delays in the proceedings: between

26 January 1987, when the Public Prosecutor requested that the

applicant be summoned to appear before the Verona Court, and

16 February 1989, when the Presiding judge of the Verona Court did so

(more than two years); between 30 March 1989, when the applicant's

case was sent back to the Public Prosecutor's office and 17 October

1990, when the Public Prosecutor summoned the applicant to appear

before him (more than a year and six months); between 15 April 1991,

date of the first request of committal for trial and 23 January 1992,

date of the second request after the entry into force of the new code

of criminal procedure (nine months).

39. The Commission has considered the submissions of the parties in

this respect, and finds that this delay of more than four years and

three months in all, which is attributable to the competent

authorities, has not been convincingly explained by the Governement.

40. The Commission reaffirms that it is for Contracting States to

organise their legal systems so as to enable the courts to comply

with the requirements of Article 6 para. 1 (Art. 6-1), including that

of a trial within a "reasonable time" (cf. Eur. Court HR, Baggetta

v. Italy judgment of 25 June 1987, Series A no. 119-B, p. 32,

para. 23).

41. 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 at issue, being

six years and five months, was excessive and failed to meet the

"reasonable time" requirement referred to in Article 6 para. 1

(Art. 6-1) of the Convention.

CONCLUSION

42. The Commission concludes, unanimously, that there has been a

violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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G.P. v. ITALY

G.P. v. ITALY

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