Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 30605/96

by Paolo MONGIARDO

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 4 July 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

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 6 November 1995

by Paolo MONGIARDO against Italy and registered on 25 March 1996 under

file No. 30605/96;

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

25 March 1997 and the observations in reply submitted by the

applicant on 28 May 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national born in 1933 and residing

in Rome. He is a teacher and used to work as a court expert

(graphologist).

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

summarized as follows.

On 29 March 1988 the Public Prosecutor's Office of Rome issued

a warrant of arrest against the applicant on charges of belonging to

a mafia-type association, drug trafficking, trafficking works of art

and counterfeiting; the applicant was arrested on 31 March 1988, and

was kept in isolation for five months in Rome; he was later under house

arrest until he was released on 3 July 1989 on the ground of expiry of

the time-limit for detention on remand.

He was interrogated by the Public Prosecutor on 14 April and

4 May 1988; he was then interrogated by the Investigating Judge on

25 May 1988.

On 22 June 1988 the Rome Investigating Judge declared the

territorial incompetence of the Rome court and sent the file to the

Public Prosecutor's Office of Reggio Calabria.

On 16 November 1988 the Presiding Judge of the Rome Court

informed the applicant, who was on the List of Experts, that the

existence of criminal proceedings against him was clearly in contrast

with the requisites for exercising the profession of expert, pursuant

to Article 15 of the implementation provisions ("disposizioni di

attuazione") of the code of civil procedure; he therefore invited the

applicant to submit written observations on the matter within fifteen

days or else disciplinary proceedings would be opened against him

pursuant to Article 21 of the "disposizioni di attuazione". According

to Article 20 of the "disposizioni di attuazione", such procedure can

lead to the imposition of the following sanctions: a warning, the

suspension from the exercise of the work of expert for up to a year or

the striking out of the List.

On 2 March 1989 the applicant was summoned to appear before the

disciplinary committee ("committee charged with the keeping of the List

of Experts"), on 10 May 1989. He was allegedly suspended de facto from

his job of expert.

On 12 July 1989 the applicant was committed for trial before the

Reggio Calabria Court. On 24 July 1990 the latter declared its

territorial incompetence and sent the case to the Milan Court.

On 27 April 1990 the President of the disciplinary committee

summoned the applicant to appear before it on 12 June 1990. By a letter

dated 23 November 1990, the applicant was further summoned to appear

before the Committee on 11 December 1990.

Four hearings were held on 27 November, 5, 6 and 10 December

1990. On 10 December 1990, the Milan Court declared its territorial

incompetence and sent the case before the Udine Court.

On 4 June 1991 the Udine Court sent the case before the Court of

Cassation seeking that the question of the territorial competence be

decided.

By a judgment delivered on 5 November and filed with the Registry

on 25 November 1991, the Court of Cassation held that the Milan Court

was competent to deal with the case. The case was therefore sent to the

Milan Court on 7 February 1992.

Despite the requests lodged by the applicant on 15 December 1994

to the Presiding judge of the Milan Court, the Presiding judge of the

Milan court of appeal and the Public Prosecutor and on 16 March 1995

to the Presiding judge of the Milan Court, the first hearing was only

fixed to 29 January 1997. It was eventually postponed to 13 October

1997. In the meantime, by a letter dated 26 April 1995, the applicant

was summoned to appear before the disciplinary committee at its meeting

of 28 June 1995. It was stated that the existence of criminal

proceedings against him on very serious charges could be in contrast

with the requirement of a "spotless moral conduct" of Article 15 of the

"disposizioni di attuazione" for working as a court expert; the

applicant was thus invited to submit his observations on this point.

At the meeting of 28 June 1995, the applicant explained that he

had repeatedly tried to speed up the trial pending against him before

the Milan court, and that another trial which was pending against him

before the Rome Magistrate on a charge of receiving stolen goods, would

be decided in December 1995.

In its decision of 1 July 1995, the disciplinary committee

considered that the existence of both sets of proceedings against the

applicant sufficed to justify his suspension from the experts' list for

a year as a preventive measure by analogy to Article 70 of the

implementation measures ("norme di attuazione") of the code of criminal

procedure, according to which any expert in the fields of criminal law

can be suspended from the List when and so long as he or she is accused

of a fault-based offence liable to arrest.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the length of

the criminal proceedings instituted against him.

2. The applicant further complains that he was suspended from his

job as court expert on the ground of the mere existence of pending

criminal proceedings against him. He invokes Article 6 para. 2 in this

respect.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 6 November 1995 and registered

on 25 March 1996.

On 17 January 1997 the Commission decided to communicate the

application in relation to the length of the criminal proceedings to

the respondent Government.

The Government's written observations were submitted on 25 March

1997. The applicant replied on 28 May 1997.

THE LAW

1. The applicant complains in the first place 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 fair ... hearing within a reasonable

time ..."

The Commission notes that the proceedings at issue started on

31 October 1988 with the applicant's arrest (cf. Eur. Court HR,

Wehmhoff v. Germany judgment 27 June 1968, Series A no. 7, p. 26,

para. 19) and are currently pending before the Milan Court. These

proceedings have therefore lasted almost nine years to date.

The applicant submits that such a length cannot be regarded as

reasonable particularly in light of the nature of the accusations

brought against him, and underlines that his case has not yet been

decided in first instance.

The Government argue that the length of the proceedings can be

justified in the light of the extreme complexity of the case and of the

workload of the domestic courts involved; they refer to the Neumeister

case, where the Court found that the concern for speed cannot dispense

the judges from taking every measure likely to throw light on the truth

or falsehood of the charges, and maintain that in the present case the

overall duration of the proceedings cannot be regarded as being

unreasonable.

The Commission considers, in the light of the criteria

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

"reasonable time" (the complexity of the case, the applicant's conduct

and that of the competent authorities), and having regard to all the

information in its possession, that a thorough examination of this

complaint is required, both as to the law and as to the facts.

2. The applicant also alleges a violation of Article 6 para. 2

(Art. 6-2) in that he has been suspended from the List of Court Expert

without having previously been found guilty according to the law.

Paragraph 2 of Article 6 (Art. 6-2) provides that "Everyone

charged with a criminal offence shall be presumed innocent until proved

guilty according to the law."

The Commission first considers that Article 6 para. 2 (Art. 6-2)

is not applicable to the disciplinary proceedings at issue as they do

not involve any determination of a "criminal charge" (cf. Eur. Court

HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 1

October 1980, Series A no. 43, p. 19, paras. 41-43; No. 21257/93,

Dec. 27.11.95, unpublished).

However, the Commission recalls its established case-law

according to which the presumption of innocence requires that no

representative of the State - not only the criminal court determining

a criminal charge but also any other authorities of the State (cf. for

example No. 17265/90, Dec. 21.10.93, D.R. 75, p. 76) - declare that a

person is guilty of having committed an offence before that guilt is

established by a court.

The Commission underlines in this respect that the Presiding

Judge of the Rome Court as well as the Rome Public Prosecutor were

sitting in the disciplinary committee.

The Commission therefore considers that the decision by the

disciplinary committee to suspend the applicant from his profession

might have given rise to a problem in relation to Article 6 para. 2

(Art. 6-2) of the Convention, in so far as such decision could have

adversely affected the applicant's case in the criminal proceedings

pending against him (cf., mutatis mutandis, No. 11158/84, Dec. 5.12.85,

D.R. 45, p. 263).

The Commission notes however that in the present case the

applicant's suspension from the List was clearly imposed on him as a

mere protective measure, having regard to the particular nature of the

applicant's task as a Court expert. In the Commission's view, it is

clear from the foregoing that the disciplinary committee, and in

particular the Presiding Judge of the Rome Court and the Public

Prosecutor sitting in it did not make any assessment of the applicant's

guilt or the probability of the applicant's guilt. Consideration of

this complaint therefore discloses no appearance of a violation of the

right and freedoms secured by the Convention, in particular Article 6

para. 2 (Art. 6-2) thereof.

It follows that this complaint must be dismissed as being

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits of the case,

the applicant's complaint related to the length of the

proceedings;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MONGIARDO v. ITALY

MONGIARDO v. ITALY

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