Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 21068/92

A.M.

against

Italy

REPORT OF THE COMMISSION

(adopted on 4 September 1996)

TABLE OF CONTENTS

Page

I. INTRODUCTION

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

II. ESTABLISHMENT OF THE FACTS

(paras. 6-23) . . . . . . . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 24-35). . . . . . . . . . . . . . . . . . . . . . . . . . .4

A. Complaint declared admissible

(para. 24). . . . . . . . . . . . . . . . . . . . . . . . . .4

B. Point at issue

(para. 25). . . . . . . . . . . . . . . . . . . . . . . . . .4

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

(paras. 26-34). . . . . . . . . . . . . . . . . . . . . . . .4

CONCLUSION

(para. 35). . . . . . . . . . . . . . . . . . . . . . . . . .5

APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY

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

I. INTRODUCTION

1. The present Report concerns Application No. 21068/92 introduced

on 2 September 1992 against Italy and registered on 15 December 1992.

The applicant is an Italian national born in 1946 and currently

detained in Pianosa.

The respondent Government were represented first by

Mr. Luigi Ferrari Bravo and then Mr. Umberto Leanza, Heads of the

Diplomatic Legal Service, Ministry of Foreign Affairs.

2. The application was communicated to the Government on 12 October

1994. 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 17 January 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 4 September 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

C.L. ROZAKIS

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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. On 12 January 1976 the applicant and other coaccused were taken

into police custody ("stato di fermo"), under suspicion of

kidnapping, theft, illegal possession of firearms and other crimes

related thereto. The investigation concerned altogether 23 persons.

7. The Public Prosecutor Office of Marsala issued a warrant of

arrest ("ordine di cattura") against the applicant, who was

subsequently detained on remand.

8. The accusation brought against the applicant and the coaccused

was mainly based on the testimony of two witnesses, F.M. and V.P.

9. In January and February 1976, F.M. received various anonymous

intimidating letters. He and his family were threatened. On

9 February 1976, he asked the Marsala Public Prosecutor for

protection.

10. On 2 February 1977, F.M. was examined by the investigating judge

and confronted with one of the applicant's coaccused. F.M. identified

the applicant from a telefax reproducing a photograph of him taken

for an electoral campaign. The applicant refused to undergo an

identification parade ("ricognizione personale") in the presence of

F.M.

11. By decision of 2 December 1977, the Marsala Investigating Judge

closed preliminary investigations, dismissed the case against certain

coaccused and committed the applicant and four coaccused for trial

before the Marsala Court.

12. F.M. could not be summoned to appear as a witness during the

trial, as he had fled to Venezuela.

13. By judgment of 9 June 1978, the Marsala Court acquitted the

applicant for not having committed the crime ("per non avere commesso

il fatto"), and released him.

14. On the Public Prosecutor's appeal against the applicant's

acquittal from all charges, by decision of 14 March 1979 the Palermo

Court of Appeal decided to reopen the investigations ("rinnovazione

del dibattimento") in order to hear a witness, G.C., and to have

knowledge of the outcome of other criminal proceedings pending

against certain of the applicant's presumed accomplices.

15. By a decision of 20 June 1979, the Court of Appeal decided in

particular to await the outcome of a specific trial. The latter

proceedings terminated on 4 March 1983.

16. At the hearing of 21 March 1983, the accused were examined by

the court.

17. The witness G.C. was heard on 2 May 1983.

18. By judgment of 1 June 1983, the Court of Appeal, after

completing the investigation, convicted one of the applicant's

coaccused and acquitted the applicant and the other coaccused for

lack of evidence ("per insufficienza di prove"). One of the

applicant's coaccused was also found guilty of having threatened

F.M., thus causing him to flee abroad.

19. Both the applicant and the Public Prosecutor lodged an appeal

on points of law against this judgment.

20. By a judgment of 1 February 1985, the Court of Cassation

dismissed the applicant's appeal and upheld that of the Prosecutor.

In particular, the Court held that there were not enough grounds to

differentiate the position of the applicant from that of the

convicted coaccused and therefore to acquit him. The proceedings were

therefore referred back to another Chamber of the Court of Appeal of

Palermo, with detailed factual arguments of the Court of Cassation to

be taken into consideration.

21. By judgment of 7 May 1987, after reexamining all the evidence

gathered in the course of the previous proceedings, the Court of

Appeal found the applicant guilty of all charges, and sentenced him

to 15 years' imprisonment.

22. On the applicant's appeal on points of law, the Court of

Cassation quashed this judgement on 10 April 1990 for lack of reasons

("difetto di motivazione"), and referred the case back to another

Chamber of the Court of Appeal of Palermo.

23. In June 1990 the applicant absconded in connection with another

set of criminal proceedings, meanwhile instituted against him.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

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

that his case was not heard within a reasonable time.

B. Point at issue

25. 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

26. 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 ..."

27. The proceedings in question concerned the determination of the

charges of kidnapping, theft, illegal possession of firearms and

other crimes related thereto, brought against the applicant. The

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

(Art. 6-1) of the Convention.

28. These proceedings, which began on 12 January 1976 when the

applicant was arrested (see Eur. Court HR, Wemhoff v. Germany

judgment of 27 June 1968, Series A no. 7, p. 26, para. 19) and ended

in June 1990 when the applicant absconded (see No. 7438/76, Ventura

v. Italy, Report Comm. 15 December 1980, D.R. 23 pp. 59-60

para. 197), lasted fourteen years and approximately five months.

29. 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).

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

question is due to the complexity of the case and the number of

coaccused (23). The applicant objects.

31. The Commission agrees with the Government that the case was

rather complex, particularly because of the number of coaccused.

However, the Commission considers that the complexity of the case is

not sufficient to justify in itself a length of over fourteen years.

32. The Commission observes that the applicant's case was before the

Marsala Court once, before the Palermo Court of Appeal three times

and before the Court of Cassation twice. It recalls however that the

competent authorities bear primary responsibility for ensuring the

speedy determination of proceedings, even when the applicant uses all

procedural steps available under domestic law (cf. No. 9132/80,

dec. 12.12.83, D.R. 41 p.13). The Commission has considered the

conduct of the competent authorities in light of these criteria and

the submissions of the parties, and finds that the following delays,

which are attributable to the competent authorities are not

convincingly explained by the Government.

The Commission notes a delay of almost eleven months between the

applicant's arrest on 12 January 1976 and the first examination of

the witness against him on 2 February 1977 and another delay of

almost four years between 20 June 1979, when the Palermo court of

appeal decided to await the outcome of certain proceedings and

21 March 1983, when the court of appeal resumed consideration of the

applicant's case.

33. 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).

34. 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 over

fourteen years, was excessive and failed to meet the "reasonable

time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

35. 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

Menu

A.M. v. ITALY

A.M. v. ITALY

LEXI