SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38045/97

by Luigi BOCCARDI

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 G. Bonello ,

Mrs V. Strážnická ,

Mr P. Lorenzen ,

Mrs M. Tsatsa-Nikolovska , 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 24 July 1997 by Luigi Boccardi against Italy and registered on 3 October 1997 under file no. 38045/97;

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 15 March 1999 and the observations in reply submitted by the applicant on 20 April 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, an Italian citizen born in 1921, lives in Leivi (Genoa), and has retired.

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

On 14 February 1991 a neighbour filed a complaint against the applicant with the police station in Chiavari (Genoa).

On 21 November 1991, the Chiavari public prosecutor’s office summoned the applicant to appear on 29 September 1992 before the Chiavari Magistrate on charges of threats of death against the plaintiff and of poisoning his dog, and of insults.

On 18 May 1992, the applicant asked the public prosecutor to make new preliminary investigations as the facts stated in the complaint could not justify the charge of threats of death against the plaintiff.

On 20 May 1992, the public prosecutor decided that he could not take into consideration the request filed by the applicant but communicated it to the magistrate.

At the hearing fixed for 29 September 1992, the applicant was absent. All the witnesses were present. At the defence’s request, and after having consulted the parties, the judge postponed the hearing until 2 December 1992. The applicant indicates that the judge took this decision because he wanted to join the case with other proceedings started by the applicant’s wife against the plaintiff.

On 2 December 1992, only one witness - the applicant’s wife - was present. At the defence’s request, the judge postponed the hearing to 21 April 1993.

On that day, all the witnesses were present. After having consulted the parties, the judge postponed the hearing until 26 October 1993. According to the applicant, it was so decided as the plaintiff had offered to dismiss the complaint but did not indicate the conditions.

On 26 October 1993, the applicant’s counsel resigned. The judge appointed another lawyer and postponed the proceedings until 1 December 1993.

On 1 December 1993 all the witnesses were present but the applicant was absent due to illness. A new first hearing was fixed for 5 October 1994.

On that day, all the witnesses were absent. At the defence’s request, the judge adjourned the hearing until 24 January 1995.

On that day all the witnesses and the applicant were absent. The defence’s counsel filed medical declarations on the applicant’s health. The judge postponed the hearing until 30 May 1995.

During that hearing, the defence’s counsel declared that he was on strike and the judge postponed the hearing until 22 September 1995.

On that date all the witnesses were absent. At the request of the defence’s counsel, the judge adjourned the hearing until 19 June 1996 to summon the witnesses to appear again.

On that day the witnesses were again absent. The judge adjourned the hearing until 12 February 1997.

On 12 February 1997 the witnesses and the applicant were present. The judge adjourned the case.

A further hearing took place on 11 March 1997. In a judgment delivered the same day, the Chiavari Magistrate acquitted the applicant.

In the meantime, on 18 October 1993, the applicant had asked the Magistrate to declare the summons void. In his request, he made reference to Articles 6 and 13 of the European Convention on Human Rights. On 22 September 1996 and on 3 March 1997 respectively, the applicant asked the Magistrate to declare that the charges were time-barred (Article 129 of the Code of criminal procedure). These requests were apparently not examined.

COMPLAINT

The applicant alleges that the criminal proceedings instituted against him exceeded the “reasonable time” requirement in Article 6 § 1 of the Convention .

PROCEDURE

The application was introduced on 24 July 1997 and registered on 3 October 1997.

On 8 December 1998, the Court decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 15 March 1999. The applicant replied on 20 April 1999.

THE LAW

The applicant’s complaint relates to the length of the proceedings in question. These proceedings began on 21May 1991, when the applicant was summoned to appear before the Chiavari Magistrate and ended on 11 March 1997, when the applicant was acquitted. The proceedings lasted five years three months and eighteen days for one degree of jurisdiction.

The Government observe that eleven hearings were postponed. They note that in the large majority of these hearings, the procedure was adjourned at counsel’s request and because the applicant was prevented from being present. They note also that one hearing was postponed because counsels were on strike.

The applicant contests the Government’s arguments.

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.

For these reasons, the Court, by a majority,

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

Erik Fribergh Christos Rozakis Registrar President