SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35260/97 by Pierenrico VARUZZA against Italy

The European Court of Human Rights ( Second Section ) sitting on 9 November 1999 as a Chamber composed of

Mr C. Rozakis, President , Mr M. Fischbach, Mr B. Conforti, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska,

Mr A.B. Baka, Mr E. Levits, judges,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 August 1996 by Pierenrico Varuzza against Italy and registered on 11 March 1997 under file no. 35260/97;

Having regard to the Court's decision of 15 December 1998 to communicate the application;

Having regard to the observations submitted by the respondent Government on 25 March and on 23 June 1999 and the observations in reply submitted by the applicant on 3 May and 7 August 1999 respectively;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1961 and residing in Milan .

A. Particular circumstances of the case

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

On 24 December 1992 the applicant had a car accident at a junction. The traffic police fined him for the decriminalised offence of "not slowing down while approaching the junction and thus causing danger" (per non aver moderato la velocità all'intersezione costituendo pericolo ). The fine amounted to 62,000 Italian lire.

On 13 February 1993 the applicant filed an objection with the Prefect of Milan through the Milan Police Station. He contested that he had partly caused the accident and also requested that he himself and an eye-witness be heard.

The applicant's objection was received by the Judicial Police on 17 February 1993 and sent back to the Municipal Police with a view to obtaining information on 8 April 1993. On 4 May 1993 the file was forwarded to another section of the Municipal Police.

On 21 May and 11 November 1994 the applicant asked the Prefect to issue a decision. He received no reply.

The applicant's file was never forwarded to the Prefect's Office, which learned about its existence only in the context of the application to the Court.

The road traffic offence is nowadays time-barred.

In the meantime, the applicant claimed compensation for the damage occurred to his car, but the insurance company only paid half of the amount claimed, on the ground that the applicant was partly responsible for the accident.

B. Relevant domestic law and practice

According to Sections 203-205 of the Road Traffic Code ( Codice della Strada ), a person who has been fined for a road traffic offence can file an objection with the competent Prefect. The lodging of the objection suspends the effects of the fine. The Prefect, within sixty days, can either confirm the fine and issue an order for its payment or issue a reasoned order withdrawing the fine ( ordinanza motivata di archiviazione degli atti ). The party can file an application with the civil Magistrate against a negative decision of the Prefect.

The Constitutional Court, by judgments Nos. 255/94, 311/94 and 437/95, has interpreted Section 203 of the Road Traffic Code as allowing to apply to the Magistrate without previously applying to the Prefect.

In several decisions (Nos. 12777/95, 5897/97, 12628/98) the Court of Cassation has applied the principle stated by the Constitutional Court and ruled that the application to the Prefect is merely optional, i.e. it is possible to apply directly to the Magistrate.

The Court of Cassation has also made it clear, by its decision No. 6895/97, that the above sixty-day time-limit is peremptory and that, therefore, a decision delivered after the expiry of the sixty days is to be considered invalid.

According to Section 209 of the Road Traffic Code, road traffic offences become time-barred after five years.

According to Section 221 of the Code of Civil Procedure, the content of a public document ( atto pubblico ) - such as a traffic police fine - can be challenged in the course of civil proceedings through a written application ( querela di falso ) to the judge.

In its judgment no. 6139 of 2 June 1993, the Court of Cassation has made clear that a possible withdrawal of the fine by the Prefect, being no judicial decision, cannot prevent the civil courts from establishing the possible responsibility of the relevant person in relation to the facts which are the object of the fine.

COMPLAINTS

The applicant complains that he was denied access to a court on account of the failure of the Prefect to reply to his application. He invokes Article 6 § 1. The applicant also invokes Article 6 § 3 (d) insofar as neither he himself nor his witness were heard by the Prefect. The applicant maintains that, awaiting the Prefect's decision, the other car driver's insurance company has not paid him the entire amount of the compensation he had claimed.

PROCEDURE

The application was introduced on 2 August 1996 and registered on 11 March 1997.

On 15 December 1998 the Court decided to communicate the application.

The Government's written observations were submitted on 25 March and 23 June 1999. The applicant replied on 3 May and 7 August 1999 respectively;

THE LAW

The applicant alleges a violation of his right of access to a court, guaranteed by Article 6 § 1 of the Convention, which, insofar as relevant, provides as follows:

“ In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by a(...) tribunal ...”

The Government, referring to the established case-law of the Court of Cassation, argue that the applicant was not obliged to await the Prefect's decision but could have applied, within sixty days from the date of the fine, directly to the Magistrate ; the applicant could also have filed a criminal complaint against the Prefect for breach of a statutory duty, and subsequently seek damages. At any rate, according to the most recent case-law, the sixty-day time-limit for the Prefect to rule on an objection is peremptory.

The Government conclude that the application is manifestly ill-founded and that, in any event, the applicant cannot any more claim to be a victim of the invoked provision, given that the offence is nowadays time-barred.

The applicant underlines that he applied to the Prefect pursuant to Section 203 of the Road Traffic Code in 1993, i.e. prior to the delivery of the case-law cited by the Government.

The Court recalls that the offence at issue is a “criminal” one within the meaning of Article 6 § 1 of the Convention (see the Öztürk v. Germany judgment of 21 February 1984, Series A no. 73, p.21, § 53). The applicant was thus in principle entitled to have a court determine the charge against him.

The Court observes that the applicant complains that he was denied access to the Magistrate on account of the Prefect's failure to follow up to his application, whereas the Government argue that it would have been possible for the applicant to apply to the Magistrate instead of the Prefect. However, the Court is not called upon to decide this matter, as the application is at any rate inadmissible for the following reasons.

The Court notes that the applicant was not and can no longer be convicted, the offence being time-barred. It follows that he cannot any longer claim to be a victim of a violation of his right to have the criminal charge against him determined by a court, nor of his right to a fair trial guaranteed, inter alia , by Article 6 § 3 d) of the Convention.

Further, insofar as the applicant claims that, in the absence of a decision by the Prefect, the liable insurance company refuses to pay him compensation in full, the Court notes that it would have been possible for him to institute civil proceedings against the insurance company. The applicant could have challenged the content of the traffic police fine pursuant to Section 221 of the Code of Civil Procedure, and, according to the Court of Cassation case-law, the civil court would have been competent to ascertain whether he was partly responsible for the accident or not.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President