FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45488/99 by Massimo MILONE against Italy

The European Court of Human Rights (First Section) , sitting on 9 July 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 August 1998,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1959 and currently residing in Naples.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In an order of 15 March 1992, served on the applicant on 16 March 1992, the Naples Public Prosecutor informed the applicant that criminal proceedings were instituted against him for kidnapping and rape and that his Office had requested the investigating judge to prolong the maximum period for the completion of the investigations.

In an order of 3 March 1993, filed with the registry on 5 March 1993, the Public Prosecutor’s Office requested that the applicant be committed for trial. In an order of 6 March 1993, the investigating judge scheduled the preliminary hearing for 12 May 1993, on which date the case was adjourned by reason that the committal for trial had not been duly served on the accused.  In an order of 19 October 1993 the investigating judge committed the applicant for trial, commencing on 8 February 1994 before the Naples District Court. The case-file was subsequently forwarded to the investigating judge because the committal for trial had not been duly served on the accused.

In an order of 3 May 1994, the investigating judge committed the applicant for trial, commencing on 27 January 1995 before the Naples District Court.

The first hearing did not take place because of a lawyers’ strike. On 10 April 1995 and 5 February 1996 the case was adjourned at the applicant’s request.

On 12 March 1996 the case was postponed by reason that the witnesses summoned to appear were absent. On 15 May 1996 the case was adjourned until 11 February 1997 because some witnesses were absent and by reason of the fact that the bench of the court was composed of judges other than those who participated in previous hearings.

A hearing scheduled for 7 May 1997 did not take place because the lawyers of the Naples Bar Association were on strike. On 12 November 1997, the case was adjourned because the witnesses were absent. In a judgement of 20 March 1998, filed with the registry on 24 March 1998, the District Court acquitted the applicant. The decision became final on 8 May 1998.

In the meanwhile, on an unspecified date the applicant requested to be enrolled in the list of experts of the Naples District Court. However, this request was refused by reason that criminal proceedings were pending against him.

THE LAW

1. The applicant’s first complaint relates to the length of the proceedings. According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government reject this allegation and argue that the applicant’s complaint should be declared inadmissible for non exhaustion of domestic remedies, the applicant having failed to make use of the remedy introduced by Law n° 89 of 24 March 2001 (hereinafter “Pinto Act”).

The applicant maintains that the Pinto Act provides applicants before the European Court of Human Rights with a faculty and, therefore, does not impose any obligation on them. Furthermore, the applicant stresses that the Italian Government could politically interfere with the proceedings conducted before domestic courts. Finally, the applicant considers that the financial resources of the Pinto Act intended to compensate damages are not sufficient in order to obtain a just satisfaction and, therefore, he refuses to make use of this remedy.

The Court notes that under the Pinto Act, anyone who has sustained pecuniary or non-pecuniary damage can apply to the appropriate court of appeal for a declaration that there has been a violation of the European Convention on Human Rights in respect of the “ reasonable time” requirement in Article 6 § 1 and claim a sum in just satisfaction. The Court points out that in many earlier cases (see, among others, Brusco v. Italy (dec.), no. 69789/01, CEDH 2001-IX, and Giacometti v. Italy (dec.), no. 34969/97, CEDH 2001-XII), it has held that the remedy introduced by the Pinto Act is one that the applicant must make use of before the Court rules on the admissibility of the application, regardless of the date on which the latter was lodged.

The Court discerns no circumstances which call for a different decision in the instant case and it therefore holds that this part of the application must be rejected under Article 3 5 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

2. The applicant also alleges a breach of Article 6 § 2. He complains that the refusal of his request to be enrolled in the list of court experts amounted to a violation of  his right to presumption of innocence.

The Court notes that the refusal of the applicant’s request was due to the criminal proceedings against him. The Court recalls that 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 declare that a person is guilty of having committed an offence before that guilt is established by a court (see, Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, § 35). The Court underlines in this respect that the refusal of the applicant’s request to be enrolled in the list of court experts might have given rise to a problem in relation to Article 6 § 2 of the Convention, in so far as such a decision could have adversely affected the applicant’s case in the criminal proceedings pending against him. The Court notes, however, that the refusal did not involve any assessment of the applicant’s guilt or the probability of the applicant’s guilt. This complaint therefore discloses no appearance of a violation of the right and freedoms secured by the Convention, in particular Article 6 § 2 thereof.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos R ozakis Registrar President