SECOND SECTION

DECISION [Note1]

AS TO THE ADMISSIBILITY OF

Application no. 45290/99

by Augusto and Rezziero PISANIELLO,

Giovanni CLEMENTE and Costantino IOLLO

against Italy

The European Court of Human Rights ( Second Section ) sitting on 21 October 1999 as a Chamber composed of

Mr C. Rozakis, President , Mr M. Fischbach, Mr B. Conforti, Mr G. Bonello, Mrs V. Strážnická, Mr P. Lorenzen, Mrs M. Tsatsa-Nikolovska, 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 9 December 1998 by the applicants against Italy and registered on 11 January 1999 under file no. 45290/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 5 July 1999 and the observations in reply submitted by the applicants on 17 August 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are four Italian nationals, born respectively in 1953, 1940, 1950 and 1961. The first, third and fourth applicants reside in San Martino Valle Caudina ( Avellino ), while the second applicant resides in Rozzano ( Milano ). In 1988, the fourth  applicant was a member of the San Martino Valle Caudina Town Council’s technical Committee (“ Commissione tecnica comunale ”), a body responsible for expressing opinions on the issuing of building permits and on the granting of public subsidies.

The applicants are represented before the Court by Mr Antonio Lombardi , a lawyer practising in Benevento .

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

On 23 October 1993, the Avellino Public Prosecutor’s Office commenced criminal proceedings against the applicants .

On 19 November 1993, the Avellino Public Prosecutor requested that the applicants and three other persons be committed for trial on charges of aggravated abuse of public authority (“ abuso d’ufficio ”). In particular, the first, second and third applicants were accused of having induced the fourth applicant and two other persons to unlawfully grant them a public subsidy. Mr Augusto and Rezziero Pisaniello , Giovanni Clemente and another person were moreover accused of having built a cottage without complying with the conditions contained in the building permit.

By an act filed with the Registry on 21 March 1994, the Avellino investigating judge scheduled the date of the preliminary hearing for 26 April 1994. This act, together with the Public Prosecutor’s request, was served on the second applicant on 29 March 1994 and on the other applicants on 7 April 1994. They were thus informed of the charges brought against them.

The preliminary hearing was adjourned first until 5 July 1994, then until 18 October 1994. On that occasion, the case was adjourned until 17 January 1995 by reason of the absence of an expert summoned to appear on the Public Prosecutor’s behalf. On 17 January, 23 February, 6 April and 22 June 1995 the proceedings were adjourned because the lawyers’ of the Avellino Bar Association were on strike from 13 January until 9 October 1995 . On 26 October 1995 the case was postponed in order to enable the said lawyers to take part in an assembly.

On 21 June 1996, the investigating judge observed that the order fixing the date of hearing had not been served on all the parties and therefore adjourned the proceedings until 23 July 1996, date on which an expert was examined and the parties presented their pleadings. In a judgment of the same day, the Avellino investigating judge declared that the charge concerning the failure to comply with th e conditions in the building permit was time-barred. This decision became final on 1 October 1996.

In a separate order given on 23 July 1996, the investigating judge committed the applicants and one other person for trial, commencing on 16 January 1997, before the Avellino District Court, with respect to the charge of aggravated abuse of  public authority. 

On 16 January 1997, the District Court, observing that the summons to appear had not been served on the San Martino Valle Caudina Town Council, ordered that a fresh summons be served and adjourned the proceedings until 18 June 1997, date on which the case was adjourned until 27 April 1998 because the lawyers of the Avellino Bar Association were on strike from 16 until 20 June 1997.

On 27 April 1998, the parties made their final pleadings.

In a judgment of the same day, filed with the court’s registry on 4 May 1998, the Avellino District Court held that the charge of aggravated abuse of public authority had become time-barred on 13 June 1996.

This decision became final on 14 June 1998.

COMPLAINT

The applicants allege that the length of the criminal proceedings instituted against them exceeded the "reasonable time" requirement in Article 6 § 1 of the Convention.

PROCEDURE

The application was introduced on 9 December 1998 and registered on 11 January 1999.

On 20 April 1999, the Court (Second Section) decided to give notice of the application to the respondent Government, and invited them to submit their observations on its admissibility and merits.

The Government submitted their observations on 5 July 1999, to which the applicants replied on 17 August 1999.

THE LAW

The applicants complain about the length of the proceedings instituted against them. They invoke Article 6 § 1 of the Convention, which, as far as relevant, reads 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 Government point out that a number of hearings were postponed for reasons concerning the applicants’ representatives, namely the lawyers’ strikes. They also observe that the applicants benefited from the length of the proceedings, as the Avellino District Court held that the charge of aggravated abuse of public authority had become time-barred on 13 June 1996.

The applicants observe that the delays complained of were due to reasons relating to the organisation of the Italian judicial system. As to the lawyers’ strikes, they were not particularly lengthy and could not in any case justify the periods in between individual hearings. The applicants moreover consider that the time-barring of the offences precluded them from proving their innocence.

The proceedings at issue began on the date when the persons concerned were officially notified that they would be persecuted (see the Reinhardt and Slimane-Kaïd v. France judgment of 31 March 1998, Reports of Judgments and Decisions 1998-II, p. 660, § 93), that is to say on 29 March 1994 for the second applicant and on 7 April 1994 for the other applicants. The proceedings ended on 14 June 1998, when the Avellino District Court’s judgment became final. Their overall length is thus more than four years and two months for one instance.

The Court considers, in the light of the criteria established in its case-law on the question of "reasonable time" (the complexity of the case, the applicants’ conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, unanimously, the Court

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Erik Fribergh Christos Rozakis

  Registrar                   President

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