SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 48687/99 by Mario TRACIA against Italy

The European Court of Human Rights (Second Section), sitting on 22 March 2001 as a Chamber composed of

Mr C.L. Rozakis , President , Mr A.B. Baka , Mr G. Bonello , Mrs V. Strážnická , Mr M. Fischbach , Mrs M. Tsatsa-Nikolovska , Mr E. Levits , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Court of Human Rights on 28 December 1998 and registered on 9 June 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is an Italian national, born in 1920 and living in Rome. He is represented before the Court by Mr A.G. Lana, a lawyer practising in Rome.

A. The circumstances of the case

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

The applicant was an employee of the Italian Tax Revenue whose duty was to supervise the validity of payments made to taxpayers. On 8 July 1976, the applicant authorised to pay a company its tax credit although it was not entitled to it.

On 13 November 1987, the Principal State Counsel at the Court of Audit summoned the applicant to appear before the Court of Audit with a view to ascertaining his liability jointly with other employees for the damages caused to the State.

By a decision of 9 December 1987, the Court of Audit ordered the seizure of the applicant’s property.

By a judgment of 28 September 1991, the Court of Audit found the applicant liable and ordered him to pay compensation to the State. Two judges of that Court (D.R. and M.) had also decided in the seizure proceedings.

The applicant’s appeal against this judgment was dismissed by the Appellate Court of Audit on 25 May 1995.

Pursuant to Article 395 No. 4 of the code of civil procedure, on 13 September 1995 the applicant lodged an application with the Appellate Court of Audit to recall the above-mentioned judgment of 25 May 1995 by reasons of errors of facts ( revocazione ). Two judges of that Court (G. and A.) had already participated in the appeal proceedings. The application was declared inadmissible by a decision of 9 September 1996.

Pursuant to Article 1 quinquies of Law No. 20/1994, on 30 December 1997 the applicant lodged a second application with the Appellate Court of Audit to recall the judgment of 9 September 1996 in order to be excluded from his joint liability. By a judgment of 16 July 1998, the Appellate Court of Audit declared that application inadmissible.

B. Relevant domestic law

Under Article 26 of Royal Decree No. 1038 of 13 August 1933 and Article 52 of the code of civil procedure, the party in the proceedings before the Court of Audit can challenge the judge where there are reasons to doubt his impartiality.

Under Article 1218 et seq. of the civil code, civil servants are responsible for damages caused to the State during the performance of their duties.

Under Article 395 No. 4 of the code of civil procedure, final judgments can be recalled if they are based on errors of fact which result from the acts and documents of the case.

Under Article 1 quinquies of Law No. 20 of 14 January 1994, final judgments can be recalled with a view to excluding a person from his joint liability.

COMPLAINTS

The applicant complains that his case has not been decided by an impartial tribunal, in particular in the light of the fact that two judges (D.R. and M.) of the Court of Audit declared that he was liable after they had previously participated in the seizure proceedings, and two judges (G. and A.) of the Appellate Court of Audit decided in the first recall proceedings after they had already participated in the appeal proceedings. He invokes Article 6 § 1 of the Convention.

THE LAW

The applicant complains that he has not been entitled to an impartial tribunal before the Court of Audit in the first instance proceedings and in the first recall proceedings. He relied on Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court considers that it can leave open the question of the applicability of Article 6 to the proceedings at issue because the application is in any event inadmissible for the following reasons.

The Court notes that the applicant first complained of the lack of impartiality of the Court of Audit on the ground that two judges - D.R. and M. - decided on the applicant’s liability after they had ordered the seizure of the applicant’s property.

The Court observes that in accordance with Article 26 of Royal Decree No. 1038/1933 and Article 52 of the code of civil procedure, the party to a procedure before the Court of Audit can challenge the judge where there are reasons to believe that the judgment will not be given by an impartial mind.

The applicant has not shown that he challenged the said judges and he has therefore not, as required by Article 35 § 1 of the Convention, exhausted the remedies available under Italian law.

The applicant further complained that the Appellate Court of Audit was not an impartial tribunal in the first recall proceedings on the ground that two judges of that Court - G. and A. - had already given their judgment in the appeal proceedings.

The Court notes that the applicant did not lodge any application to complain about the alleged partiality. Furthermore, the Court observes that the set of proceedings issued under Article 1 quinquies of Law No. 20/1994 was not a remedy directed to claim the lack of impartiality of the Appellate Court of Audit in the first recall proceedings. As a consequence, assuming that no remedy was available to the applicant to complain about the alleged partiality, the Court finds that the final decision in this respect is the judgment given by the Appellate Court of Audit on 9 September 1996. Since the applicant’s complaint was submitted on 28 December 1998, i.e. more than six months after the latter judgment, in this respect the application has been introduced too late. It follows that the application must be rejected, in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President