SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34081/96

by Andrea STARACE

against Italy

The European Court of Human Rights ( Second Section) sitting on 31 August 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 4 November 1996 by Andrea Starace against Italy and registered on 9 December 1996 under file no. 34081/96;

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 11 May 1998 and 31 March 1999 and the observations in reply submitted by the applicant on 26 June 1998 and 25 May 1999 ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1942 and resident in Naples.

He is represented before the Court by Mr Francesco Imparato , a lawyer practising in Naples.

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

In 1990 criminal proceedings were instituted against the applicant by the Naples Public Prosecutor's Office.

On 27 October 1990 the Naples Public Prosecutor, following the abridged procedure (" giudizio direttissimo "), summoned the applicant and two other persons to appear before Naples District Court at a hearing on 23 November 1990 on a charge of criminal libel, in relation to an article published in the review “ Atenapoli ”.

The first hearing was adjourned at the defendants' request.

In an order of 14 February 1991, the Naples District Court declared the writ of summons null and void, as in a judgment of 8 February 1991, the Constitutional Court had ruled that it was not possible to deal with charges of libel by way of abridged proceedings.

On 16 March 1991 the Naples public prosecutor requested the competent investigating judge to summon the defendants to appear before Naples District Court.

The date of the preliminary hearing before the Naples investigating judge, fixed for 17 March 1992, was adjourned on two occasions and eventually took place on 20 November 1993. In an order issued on the same day, the investigating judge summoned the applicant and his two co-accused to appear before Naples District Court at a hearing on 1 March 1994.

However, the trial hearing was adjourned, first to 24 May 1994 because a certain Mr A. who, together with one Mr C., had joined the proceedings as a civil party was absent and then, because on that day the lawyers of the Naples Bar were on strike, until 31 October 1994. After two adjournments, on 22 December 1994 the proceedings were postponed to 17 July 1995 by the District Court of its own motion, then adjourned to 5 February 1996 because of the lawyers' strike. On 4 March 1996 some witnesses were examined, and on 6 May 1996 the defendants made spontaneous statements (“ dichiarazioni spontanee ”) to the District Court.

In a judgment of 6 May 1996, filed with the registry on 20 June 1996, the Naples District Court convicted the applicant and sentenced him to a fine of 2,000,000 lire (ITL) and ordered him to pay each civil party damages of ITL 50,000,000.

On 25 July 1996 the applicant lodged an appeal before Naples Court of Appeal, requesting, inter alia , that a certain Mr U., who could testify to the truthfulness of the assertions made in “ Atenapoli ”, be heard as a witness.

The date of the hearing, fixed for 20 May 1997, was first adjourned to 8 July 1997, then postponed to 9 September 1997 because the applicant was ill. In a judgment given on the same day and filed with the registry on 13 September 1997, the Court of Appeal upheld the fine imposed on the applicant and reduced the amount of damages to ITL 15,000,000 for each civil party. As concerned the question of whether Mr U. should be examined, the court considered that it was devoid of interest, given the fact that the applicant’s liability could be established beyond any reasonable doubt in the light of the wording of the article published in “ Atenapoli ”.

On 22 October 1997 the applicant appealed against this judgment on points of law, seeking an acquittal and alleging, inter alia , that the Court of Appeal’s refusal to hear Mr U. as a witness amounted to an omission to take “decisive evidence” (Article 606 § 1 (d) of the Italian Code of Criminal Procedure). He also requested the Court of Cassation to declare that the charge against him was time-barred.

In a judgment of 5 May 1998, filed with the registry on 23 June 1998, the Court of Cassation held that the charge against the applicant had become time-barred and consequently annulled the order imposing a fine on him.

Observing that under the relevant provisions of Italian law a person accused of criminal libel is in principle entitled to produce evidence to prove the truthfulness of the contested statements, the court concluded that the refusal to hear Mr U. as a witness was unlawful. However, as the charge had became time-barred on 22 September 1997, it did not consider it necessary to quash the conviction and to refer the case back to the Court of Appeal, confining itself to setting aside the order for damages and to ordering the case-file to be forwarded to the competent civil courts.

COMPLAINT

Invoking Article 6 §§ 1 and 3 d) of the Convention, the applicant complains about the length and the unfairness of the criminal proceedings instituted against him.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 4 November 1996 and registered on 9 December 1996.

On 4 March 1998, the Commission (First Chamber) decided to give notice of the applicant’s complaint concerning the length of the criminal proceedings to the respondent Government, and invited them to submit their observations on its admissibility and merits.

The Government submitted their observations on 11 May 1998, to which the applicant replied on 26 June 1998.

By virtue of Article 5 § 2 of Protocol No. 11 to the Convention, which entered into force on 1 November 1998, the application was thereafter examined by the European Court of Human Rights.

On 12 January 1999, the Court (Second Section) decided to give notice of a new complaint, raised by the applicant on 30 October 1998 and concerning his right to obtain the attendance and examination of a witness on his behalf, to the respondent Government, and invited them to submit their observations on its admissibility and merits.

The Government submitted their observations on 31 March 1999, to which the applicant replied on  25 May 1999.

THE LAW

The applicant complains about the length and the unfairness of the criminal proceedings instituted against him. He invokes Article 6 §§ 1 and 3 d) of the Convention, which, in so far as relevant, reads as follows:

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

  3. Everyone charged with a criminal offence has the following minimum rights:

...

d. ... to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

a) The applicant first complains about the length of the proceedings against him. These proceedings started on 27 October 1990, when the Naples Public Prosecutor summoned the applicant to appear before Naples District Court, and ended on 23 June 1998, when the Court of Cassation’s final judgment was filed with the registry.

The Government observe that the case was complex and that all the adjournments before the Naples District Court were justified by valid reasons. They note that in any case the applicant benefited from the length of the proceedings, as the charge against him was eventually declared time-barred.

According to the applicant, the length of the proceedings - a period of seven years, seven months and twenty-seven days - is in breach of the "reasonable time" requirement laid down in Article 6 § 1 of the Convention. He points out that his case was not complex, that he never requested adjournments and that he sought a decision on the merits of the charge brought against him.             

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 applicant's 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.

b) The applicant further complains about the Court of Appeal’s refusal to hear Mr U. as a witness. He also criticises the Court of Cassation’s decision to declare the charge against him time-barred and considers that his case should have been referred back to the Court of Appeal, with an order for Mr U. to be examined.

The Government recall that the admissibility and assessment of evidence is primarily a matter for the jurisdiction of the domestic courts. They point out that the applicant himself requested the Court of Cassation to declare that the charge against him was time-barred and consider that in any case the attendance and examination of Mr U. could not have overruled the conclusion reached by the national judges, namely that the period for the time-barring had elapsed.

The applicant observes that the Court of Cassation acknowledged that he was entitled to obtain the examination of Mr U., but failed to so provide for purely formal reasons. He considers that the judgment of 5 May 1998 left the question of his guilt open and that it adversely affected his right to enjoy a good reputation. 

T he Court observes that the applicant himself expressly requested the Court of Cassation to declare the time-barring of the charge brought against him, and that this request was eventually granted by the national judges. In these circumstances, it considers that the applicant can no longer claim to be a victim of a violation of Article 6 §§ 1 and 3 d) of the Convention on the basis of the refusal to hear the witness.

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 Article 35 § 4.

For these reasons, unanimously, the Court

DECLARES THE APPLICATION ADMISSIBLE AS REGARDS THE COMPLAINT CONCERNING THE LENGTH OF THE CRIMINAL PROCEEDINGS , without prejudging the merits of the case.

DECLARES THE APPLICATION INADMISSIBLE FOR THE REMAINDER.

Erik Fribergh Christos Rozakis

   Registrar                   President