SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34203/96

by Aldo FERRARIN

against Italy

The European Court of Human Rights ( Second Section) sitting on 7 June 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 26 November 1996 by Aldo FERRARIN  against Italy and registered on 17 December 1996 under file no. 34203/96;

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 1944 and living in Montecchio Precalcino.

He is represented before the Court by Mr. Gian Antonio Conte, a lawyer practising in Milan.

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

On 27 June 1978, the applicant was appointed the sole manager of company Nuova R.A.C.E. srl.

By a judgment of 22 March 1979, the Milan District Court declared this company bankrupt.

Following a complaint, criminal proceedings against the applicant were opened on an unspecified date in 1979 before the Milan District Court in connection with the bankruptcy proceedings. On 13 November 1979 the receiver ( curatore fallimentare ) forwarded to the Public Prosecutor, upon the latter’s request, the list of the bankruptcy creditors ( creditori ammessi al passivo ).

On 26 June 1986 the Public Prosecutor attached to the Milan District Court requested that the applicant be committed for trial for criminal bankruptcy ( bancarotta fraudolenta) .

Following the entry into force of the new code of criminal procedure on 24 October 1989, the Investigative Judge sent the case back to the Public Prosecutor in order to follow the new procedure. On 5 March 1990 the Public Prosecutor requested the delivery of an order opening the proceedings ( decreto che dispone il giudizio ) against the applicant.

The applicant’s name was entered into the register of pending proceedings on 6 March 1990.

By a judgment delivered on 22 November 1990, the Milan District Court convicted the applicant and sentenced him inter alia to three years’ imprisonment. Before the trial, part of the documentation concerning the management of the company by the applicant had been lost, when the receiver’s cellars were flooded.

The applicant appealed against this judgment; he pointed out that he had only been informed of the existence of criminal investigations against him after 24 October 1989, whereas the investigations had already gone on for ten years.

By a judgment of 12 December 1995 the Milan Court of Appeal confirmed the judgment of first instance. The court underlined in particular that there was no legal obligation to inform the applicant about the existence of criminal investigations against him before the request to commit him for trial.

The Court of Cassation rejected the applicant’s appeal on points of law of 26 January 1996 by a judgment of 7 May 1996.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention about the length of the criminal proceedings.

2. The applicant further complains under Article 6 § 3 (a) and (b) that he was informed only after the entry into force of the new criminal code in October 1989, of the opening of criminal investigations against him. He further complains that certain documents were lost by the receiver and could not be submitted to the courts.

THE LAW

1. The applicant complains in the first place about the length of the proceedings. He invokes Article 6 § 1 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant further alleges not to have been promptly informed of the charges against him. He invokes Article 6 § 3 (a) and (b) of the Convention, according to which

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

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence.”

The Court recalls in the first place that the requirements of paragraph 3 of Article 6 represent particular aspects of the right to a fair trial guaranteed in paragraph 1. The Court will therefore examine the applicant’s complaints from the point of view of these two provisions taken together (see Eur. Court HR, Foucher v. France judgment of 18 March 1997, Reports of Judgments and Decisions 1997, § 30; Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 23, § 43).

As regards the information on the accusation, the Court has previously stressed that Article 6 § 3 (a) of the Convention is of fundamental importance in preparing the defence and that its scope must be understood in relation to Article 6 § 3 (b), which guarantees to everyone the right to have adequate time and facilities for the preparation of his defence, and in the light of the more general right to a fair trial secured by Article 6 § 1 of the Convention (see Eur. Court HR, Pélissier and Sassi v. France judgment of 25 March 1999, §§ 52 and 54).

Pursuant to Article 6 § 3 (a) of the Convention, the accused is entitled to be "promptly" informed and "in detail" of the cause of the accusation, i.e. the material facts alleged against him which are at the basis of the accusation, and of the nature of the accusation, i.e. the legal qualification of these material facts (see Pélissier and Sassi judgment, loc. cit. , § 51).

Article 6 § 3 (a) applies to persons “charged” with an offence. The Court must therefore at the outset examine at what stage the applicant was formally “charged” within the meaning of Article 6 of the Convention. The Court has previously held that the definition of a charge covers not only the official notification to an individual of the allegation that he has committed an offence, but also any measure whereby the situation of the suspect has been substantially affected (see Eur. Court HR, Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24, § 46; Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 33, § 73).

In the present case, it does not appear that the applicant had knowledge or was affected by the existence of criminal investigations against him before he was informed, on an unspecified date after 5 March 1990, of the Public Prosecutor’s request to commit him for trial. The applicant does not allege that at this stage the information he received was incomplete or insufficient: he complains essentially that, by the time he had knowledge thereof, the criminal investigations against him had already gone on for ten years. However, the Court considers that before the applicant was officially notified of the Public Prosecutor’s request to commit him for trial, he was not “charged” within the meaning of Article 6 of the Convention.

The Court notes further that the applicant has failed to indicate in what way the preparation of his defence was hindered by the alleged delay in the information about the accusation.

Finally, as concerns the loss of certain documents by the receiver, the Court notes that the applicant has failed to raise this argument in form or in substance before the domestic courts. At any rate, the applicant has failed to indicate in what manner the preparation of his defence was hindered by the impossibility of submitting these documents to the court.

It follows that this part of the application is manifestly ill-founded and must be rejected by application of Article 35 § 3 of the Convention.

For these reasons, the Court,

DECIDES TO ADJOURN the examination of the applicant’s complaint about the length of the proceedings;

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis

Registrar President