Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22120/93

by G.P.

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 16 June 1993 by

G.P. against Italy and registered on 25 June 1993 under file

No. 22120/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

- the observations submitted by the respondent Government on 30 May

1995 and the observations in reply submitted by the applicant on

28 July 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1951 and currently

residing in Isola della Scala (Verona). He is a car dealer by

profession and owns a fifty per cent share in the car repairer's where

he works in Isola della Scala.

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

summarised as follows.

In December 1980 or January 1981, the applicant did certain

repairs on a Mercedes on behalf of a customer.

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.

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.

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

Prosecutor's Office.

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 under

suspicion of "receiving a stolen Mercedes from B.".

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

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

denied to have altered its registration number.

On 26 January 1987, the Public Prosecutor issued a summon to

appear before the Verona court.

By act of 16 February 1989, the applicant was committed for trial

together with five coaccused before the Verona court for the hearing

of 30 March 1989.

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 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.

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

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

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

Prosecutor's office, at the latter's request, 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.

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.

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

before the Verona court.

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.

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

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

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.

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

description of the results of the inspection and the relevant

photographs.

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.

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

the Judge for the Preliminary Hearing on 7 April 1992.

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.

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.

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

became final on 2 March 1993.

COMPLAINTS

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

instituted against him for receiving a stolen car exceeded the

"reasonable time" referred to in Article 6 para. 1 of the Convention.

2. The applicant also argues that the proceedings were unfair in

that for a long time he was denied the possibility of inspecting the

car and describing the repairs he had done thereon, which would have

discharged him from the beginning. He alleges a breach of Article 6

para. 1 of the Convention in this respect.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 June 1993 and registered on

25 June 1993.

On 28 February 1995 the Commission decided to communicate the

applicant's complaint concerning the length of the criminal proceedings

to the respondent Government, pursuant to Rule 48 para. 2 (b) of the

Rules of Procedure.

The Government's written observations were submitted on

30 May 1995. The applicant replied on 28 July 1995.

THE LAW

The applicant complains about the length and fairness 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 (...)"

a) As regards the length of the proceedings, the Commission notes

that they started 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 judgment of 27 February 1980,

Series A no. 35, p. 24, para. 42), and ended on 2 March 1993, when the

applicant's acquittal became final. The overall length is thus six

years and five months.

The Government argue that the delays in the proceedings are

mainly due to the complexity of the procedure and to the entering into

force in 1989 of the new code of criminal procedure; 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 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

discharged him already in 1989.

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.

b) The applicant further alleges that the fact that the judicial

authorities prevented him from inspecting the car immediately after the

investigations were started, which would have discharged him from the

beginning, rendered the proceedings unfair in breach of Article 6 para.

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

However, the Commission notes that the applicant was acquitted;

it recalls its constant case-law to the effect that an acquitted

defendant cannot claim to be a victim of violations of the Conventions

which allegedly took place in the course of the proceedings as a result

of which he was acquitted (see No. 8083/77, Dec. 13.3.80, D.R. 19, p.

223).

It follows that the applicant cannot claim to be a "victim"

within the meaning of Article 25 (Art. 25) of a violation of the above

proceedings; this part of the application is therefore 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 the complaint related to the length of the

proceedings, without prejudging the merits of the case;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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G.P. v. ITALY

G.P. v. ITALY

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