DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35168/97

by Benito PENNA

against Italy

The European Court of Human Rights ( Second Section) sitting on 23 February 1999 as a Chamber composed of

Mr C. Rozakis , President ,

Mr M. Fischbach ,

Mr B. Conforti ,

Mr P. Lorenzen ,

M rs 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 13 February 1997 by Benito PENNA  against Italy and registered on 5 March 1997 under file no. 35168/97;

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 17 July 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1941, and currently detained in Cosenza .

He is represented before the Court by Mr Domenico Callea , a lawyer practising in Reggio Calabria .

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

On 28 August 1990, the Italian police seized a cottage belonging to the applicant.

In an order of 30 August 1990, the Reggio Calabria Public Prosecutor confirmed this seizure. This decision was served on the applicant on 5 September 1990.

On 12 February 1991, the Public Prosecutor committed the applicant and one Mr F. for trial, commencing on 6 May 1991 before the Reggio Calabria Magistrate. The applicant and his co-accused were charged with a number of offences concerning the fact of having built the said cottage without the prescribed building permit.             

The hearing of 6 May 1991 was adjourned at the applicant's request. On 28 June 1991, some witnesses were examined and the parties presented their final pleadings. In a judgment given on the same day and filed with the court’s registry on 26 July 1991, the Reggio Calabria Magistrate held that the charges brought against Mr F. and some of those brought against the applicant were time-barred and sentenced the latter to eight months' imprisonment and to a fine of 60,000,000 lire in respect of the remainder of the charges.

On 29 July 1991, the applicant lodged an appeal with the Reggio Calabria Court of Appeal, requesting that all the charges brought against him be declared time-barred or, in the alternative, that the penalty imposed on him be reduced.

In a judgment of 7 October 1996, filed with the court’s registry on 10 October 1996, the Reggio Calabria Court of Appeal held that all the charges against the applicant were time-barred. It observed that the offences dated back to 28 August 1990, while the relevant provisions of the Criminal Code provided that they would became time-barred on expiry of a period of four years and six months, which had therefore elapsed on 28 February 1995.

COMPLAINT

The applicant complains of the length of the proceedings and invokes Article 6 § 1 of the Convention.

PROCEDURE

The application was introduced on 13 February 1997 and registered on 5 March 1997.

On 16 April 1998, the European Commission of Human Rights 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 17 July 1998. The applicant did not reply to these observations.

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

THE LAW

The applicant's complaint relates to the length of the proceedings in question. These proceedings began on 28 August 1990, when the police seized the applicant's cottage and ended on 10 October 1996, when the final judgment was filed with the Court of Appeal’s registry.

The Government consider that the length of the first instance proceedings cannot be seen as unreasonable and observe that the applicant benefited from the delays which affected the appeal proceedings, as all the charges brought against him were declared time-barred.

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, by a majority, the Court

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

Erik Fribergh Christos Rozakis

  Registrar                   President