Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 33454/96

by Marino ALBE'

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 1 July 1998, 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. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 18 June 1996 by

Marino ALBE' against Italy and registered on 16 October 1996 under file

No. 33454/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

1 April 1998 and the observations in reply submitted by the

applicant on 21 April 1998;

Having deliberated;

Decides as follows:

THE FACTS

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 facts of the case, as submitted by the parties, may be

summarised as follows.

In 1986, criminal proceedings were instituted against the

applicant by the Mantova Public Prosecutor's Office.

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. On 15 March 1990, 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.

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.

On 14 June 1990, the applicant lodged an appeal before the

Brescia Court of Appeal. The date of the hearing was fixed on 14 March

1996. 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.

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.

On 3 February 1997, the applicant received from the registry of

the Brescia Court of Appeal an order to pay court costs, informing him

that on 12 November 1996 the Court of Cassation had declared his appeal

inadmissible. The payment order furthermore indicated that by a

judgment of 14 March 1996 the Brescia Court of Appeal had acquitted him

in respect of the charge of bankruptcy.

On 14 March 1997, the applicant addressed a petition to the Court

of Cassation and to the Brescia Court of Appeal, seeking the withdrawal

of the decision of 12 November 1996. He observed in particular that the

Brescia Court of Appeal had not acquitted him, but had confirmed his

conviction of bankruptcy and argued that the Court of Cassation's

decision was based on a misinterpretation of the operative part of the

judgment against which he had appealed on points of law.

Enclosed with their observations, the Government produced the

order of 12 November 1996, from which it transpires that the

applicant's counsel had confined himself to making reference to some

legal provisions, without submitting any substantial grounds supporting

his claims. The Court of Cassation had therefore declared his appeal

on points of law 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.

COMPLAINTS

1. The applicant alleges that the length of the criminal proceedings

instituted against him exceeded the "reasonable time" referred to in

Article 6 para. 1 of the Convention.

2. Invoking Article 6 of the Convention, the applicant alleges that

the Court of Cassation failed to ensure the observance of the

Convention and raises doubts as to the fairness of the proceedings

taken as a whole. He furthermore considers that by refusing to summon

the witnesses he had requested to examine, the national authorities

violated his right under paragraph 3 d) of Article 6.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 June 1996 and registered on

16 October 1996.

On 14 January 1998 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on 1 April

1998. The applicant replied on 21 April 1998.

THE LAW

1. The applicant first complains about the length of the criminal

proceedings instituted against him. He invokes Article 6 para. 1

(Art. 6-1) of the Convention, according to which:

"In the determination of (...) any criminal charge against

him, everybody is entitled to a (...) hearing within a

reasonable time (...)".

The Commission notes that proceedings started on 15 March 1989,

when the Mantova investigating judge summoned the applicant to appear

before the Mantova District Court (see Eur. Court HR, Eckle v. Germany

judgment of 15 July 1982, Series A no. 51, p. 33, para. 73), and ended

on 12 November 1996, the day on which the Court of Cassation's final

order was given (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.

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.

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 (Art. 6-1)

of the Convention.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs on the question

of "reasonable time", and having regard to all the information in its

possession, that an examination of the merits of the complaint is

required.

2. Invoking Article 6 (Art. 6) of the Convention, the applicant

alleges that the Court of Cassation failed to ensure the observance of

the Convention and raises doubts as to the fairness of the proceedings

taken as a whole. He furthermore considers that by refusing to summon

the witnesses he had requested to examine, the national authorities

violated his right under paragraph 3 d) of Article 6 (Art. 6-3-d).

The Government observe that the examinations requested by the

applicant would have been of no relevance and that the rejection of his

appeal on points of law was due to his failure to comply with the

procedural requirements laid down in Italian law.

The Commission is not required to decide whether or not the facts

alleged by the applicant disclose any appearance of a violation of the

invoked provisions as, under Article 26 (Art. 26) of the Convention,

it may only deal with a matter after all domestic remedies have been

exhausted according to the generally recognised rules of international

law.

In the present case, the Court of Cassation declared inadmissible

the applicant's appeal on points of law because he had failed to

indicate the specific legal arguments and the factual elements on which

his claims were based, as provided for by Article 581, para. 1 c) of

the Italian Code of Criminal Procedure. In these circumstances, where

failure to respect procedural rules constitutes the reason for the

refusal of a remedy, the Commission cannot consider that the

requirement as to the exhaustion of domestic remedies has been

satisfied (N° 10636/83, Dec. 1.7.85, D.R. 43, pp. 171, 173).

The Commission further considers that in the present case there

were no special circumstances that could have absolved the applicant

from the obligation to exhaust domestic remedies, according to the

generally recognised rules of international law.

It follows that the applicant has not met the requirements of

Article 26 (Art. 26) of the Convention as to the exhaustion of domestic

remedies and that the application must be rejected under Article 27

para. 3 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint about the length of the criminal

proceedings brought against him;

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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ALBÈ v. ITALY

ALBÈ v. ITALY

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