Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20358/92

by Nicola SAVOIA

against Italy

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, 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

G.B. REFFI

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 5 May 1992 by

Nicola SAVOIA against Italy and registered on 23 July 1992 under file

No. 20358/92 ;

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 5 May

1995 and the observations in reply submitted by the applicant on

18 July 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1943 and residing

in Fasano di Brindisi; he is accountant by profession.

Before the Commission he is represented by Mr. Ascanio Amenduni,

a lawyer practising in Bari.

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

summarised as follows.

In November 1987, the applicant filed with the Public

Prosecutor's office of Brindisi a request for a certificate confirming

that no criminal proceedings were pending against him ("certificato dei

carichi pendenti"). The certificate, issued on 17 November, showed that

on 17 January 1986 certain investigations for abuse of power and making

of false statements in a document ("interesse privato in atti d'ufficio

e falso ideologico") had been started against him. The charges related

to acts presumedly committed by the applicant between 1980 and 1981,

at the time when he was a town councillor in Fasano.

As a consequence of the said pending proceedings, the applicant's

request to be admitted to the Register of Auditors was rejected.

In 1988, the applicant was also forced to resign from his

position of auditor in a company, due to his dubious reputation.

By note of 30 October 1989, the Investigating Judge sent the case

back to the Public Prosecutor, the new Code of Criminal Procedure

having meanwhile entered into force.

Pursuant to the Public Prosecutor's request of 25 May 1990, on

26 May 1990 the applicant and ten coaccused were summoned to appear

before the Brindisi Court for the preliminary hearing ("udienza

preliminare"); the applicant was charged with abuse of power and making

of false statements in a document.

The preliminary hearing, originally scheduled for 29 June 1990,

took place on 19 October 1990. By decision on the same day, the

Investigating Judge ("giudice per l'udienza preliminare") dismissed the

charge of abuse of power as time-barred and committed the applicant for

trial on charges of making of false statements in a document.

The trial was fixed for 22 November 1991.

On 12 March 1991, the applicant filed a request for the trial to

be brought forward. By decree of 20 May 1991, the presiding judge of

the Brindisi court fixed the hearing for 4 October 1991; nevertheless,

the trial was eventually postponed to 5 November 1991.

By judgment delivered on the same day, the applicant was

acquitted. The judgment became final on 2 January 1992.

COMPLAINTS

1. The applicant claims that his case has not been examined within

a "reasonable time", as required under Article 6 para. 1 of the

Convention.

2. He further alleges a violation of Article 6 para. 3 a), in that

he was not promptly informed of the opening of preliminary

investigations against him; he alleges that he had knowledge thereof

only several months later, when he applied for a certificate that no

criminal proceedings were pending.

THE LAW

1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention about the length of the criminal proceedings against him.

Article 6 para. 1 (Art. 6-1), in so far as relevant, 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 ..."

The proceedings lasted from 17 January 1986, when preliminary

investigations against the applicant were instituted, and ended on 2

January 1992, when the applicant's acquittal became final; therefore,

the overall length is almost six years.

The Government invoke the difficult situation faced by the

Brindisi Court as a result of the entering into force of the new Code

of Criminal Procedure as well as the lack of sufficient staff and means

to deal with such a situation; in these circumstances, they maintain

that the overall duration of the proceedings cannot be regarded as

being unreasonable.

The applicant objects that the new Code only entered into force

in October 1989, when almost four years had already elapsed since the

commencement of the proceedings against him.

The Commission considers, in the light of the criteria

established by the case-law of the Convention organs 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 further complains that he was not promptly informed

of the opening of preliminary investigations, and that he had knowledge

thereof only several months later, when he applied for a certificate

that no criminal proceedings were pending. He alleges a violation of

Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.

It is true that, according to this provision:

"Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him."

However, the Commission notes that the charge of abuse of power

brought against the applicant was dismissed as time-barred by decision

of the Investigating Judge of 19 October 1991, and that the applicant

was acquitted of the charge of making of false statements in a document

by judgment of the Brindisi Court dated 5 November 1991 which became

final on 2 January 1992.

The Commission recalls its constant case-law to the effect that

an acquitted defendant cannot claim to be a victim of violations of the

Convention which allegedly took place in the course of the proceedings

as a result of which he was acquitted (cf. No. 8083/77, dec. 13.3.80,

D.R. 19 p. 223).

The Commission further notes that the applicant was in fact

promptly informed of the pending criminal investigations, including the

nature and cause of the accusation against him, in reply to his request

of November 1987.

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

provision. Therefore, the application is incompatible ratione personae

with the provisions of the Convention in accordance with 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

criminal 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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SAVOIA v. ITALY

SAVOIA v. ITALY

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