SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36012/97

by Antonio MARINIELLO

against Italy

The European Court of Human Rights ( Second Section ) sitting on 28 September 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 ,

with 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 5 November 1996 by Antonio Mariniello against Italy and registered on 12 May 1997 under file no. 36012/97;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1955 and currently detained in Benevento . Before the Court, he is represented by Mr Giuseppe Ricciulli , a lawyer practising in Naples.

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

In November 1992, the applicant, accused of belonging to a criminal association and of drug-trafficking, was arrested. The suspicions against him were partly based on the content of certain wiretappings.

In an order of 5 May 1994, the investigating judge committed the applicant for trial, commencing on 21 October 1994 before the Nola District Court.

In a judgment of 5 May 1995, filed with the registry on 31 May 1995, the District Court, relying on the content of the wiretappings, sentenced the applicant to thirteen years imprisonment.

The applicant and the Public Prosecutor lodged an appeal with the Naples Court of Appeal.

In a judgment of 21 December 1995, filed with the registry on 9 January 1996, the Court of Appeal confirmed the first-instance decision.

The applicant appealed on points of law.

In a judgment of 11 July 1996, the Court of Cassation rejected the appeal.

COMPLAINTS

1. Invoking Article 6 § 1 of the Convention, the applicant complains about the length and the unfairness of the criminal proceedings against him.

2. The applicant considers that the wiretapping of his conversations violated his right to respect for his private life. He invokes Article 8 of the Convention.

3. The applicant invokes Articles 3 and 5 §§ 1 and 3 of the Convention, without clearly stating the reasons supporting his claims.

THE LAW

1. The applicant complains about the length and the unfairness of the criminal proceedings against him. He invokes Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ..."

a) As concerns the length of the proceedings, the Court observes that the proceedings began in November 1992, when the applicant was arrested and ended on 11 July 1996, when the Court of Cassation gave its final judgment . Their overall length is thus about three years and eight months for three instances.

The Court recalls that the reasonableness of the length of the proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the conduct of the applicant and the conduct of the authorities dealing with the case (see the Reinhardt et Slimane-Kaïd v. France judgment of 31 March 1998, Report of Judgments and Decisions 1998-II, p. 662, § 97 ).

The Court first notes that the case was one of a certain complexity, having regard in particular to the seriousness of the charges brought against the applicant.

Examining the overall duration of the proceedings ‑ a period which does not seem prima facie unduly long in the light of the case-law of the Convention organs ‑ , the complexity of the case and the fact that three jurisdictions were called upon to decide on the matter, taking also into account that no substantial periods of inactivity were attributable to the State authorities, the Court considers that the length of the proceedings does not disclose any appearance of a violation of Article 6 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected according to paragraph 4 of this same provision.

b) The applicant moreover considers that the proceedings against him were not fair. He alleges that the national courts’ decisions were based on errors of fact and law.

The Court notes that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. As a general rule, the assessment of evidence is a matter for the jurisdiction of the domestic courts (see, inter alia , the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports 1999, § 28 and the Van Mechelen and Others v. the Netherlands judgment of 23 April 1997, Reports 1997-III, p. 711, § 50) and cannot be examined by the Court unless there is reason to believe that the tribunals drew arbitrary or grossly unfair conclusions from the facts submitted to them. In the present case, there is nothing to suggest that the national courts assessed the evidence in an arbitrary or otherwise unfair manner.

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

2. T he applicant alleges that the wiretappings to which he was subject concerned conversations of a confidential nature between him, his friends and the members of his family, thus violating his right to respect for his private life. He invokes Article 8 of the Convention, which reads as follows:

" 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ‑ being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others ."

The Court considers that it is not necessary to answer the question whether the applicant has exhausted the remedies which were available to him under Italian law since, even if he did, this complaint would in any case be inadmissible, for the following reasons.

The Court accepts that the wiretappings constituted as interference with the applicant’s private life.

The applicant does not challenge the lawfulness of the measure at issue, but confines himself in observing that it concerned conversations of a confidential nature between him, his friends and the members of his family. The Court finds no indication to doubt that the wiretapping was in accordance with Italian law and thus “in accordance with the law” within the meaning of Article 8 § 2 of the Convention. Moreover, it considers that the wiretapping pursued the legitimate aim of preventing crime and protecting the rights and freedoms of others. Nothing in the file shows that the authorities had overstepped their margin of appreciation or that there was no reasonable relationship of proportionality between the means employed and the aim pursued.

In these circumstances, the Court considers that the measure complained of was “necessary in a democratic society” and therefore justified under paragraph 2 of Article 8 of the Convention.             

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

3. The applicant moreover invokes Articles 3 and 5 §§ 1 and 3 of the Convention, without clearly stating the reasons supporting his claims.

The Court observes that the applicant failed to substantiate his allegations.

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

For these reasons, the Court

Unanimously,

DECLARES THE APPLICATION INADMISSIBLE AS CONCERNS THE COMPLAINTS UNDER ARTICLES 3, 5 AND 6 OF THE CONVENTION.

By a majority,

DECLARES THE APPLICATION INADMISSIBLE FOR THE REMAINDER .

Erik Fribergh Christos Rozakis

  Registrar       President