SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40665/98

by Giancarlo FRANCESCA

against Italy

The European Court of Human Rights ( Second Section) sitting on 26 January 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 18 March 1998 by Giancarlo FRANCESCA  against Italy and registered on 6 April 1998 under file no. 40665/98;

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

Having regard to the observations submitted by the respondent Government on 19 October 1998 and the observations in reply submitted by the applicant on 4 November 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1947 and residing in Benevento . He is represented before the Court by Mr. Silvio Ferrara , a lawyer practising in Benevento .

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

On 9 January 1993 the Public Prosecutor of the Benevento Court requested that the applicant and 13 co-accused be committed for trial on charge of aggravated abuse of official authority ( abuso d'ufficio ).

By an act filed with the Registry on 12 January 1993, the Judge for Preliminary Investigations of Benevento fixed the date of the preliminary hearing for 13 April 1993.

On 14 January 1993 the applicant was served notice of the request for his committal for trial and of the date of the preliminary hearing.

However the preliminary hearing was adjourned until 5 May 1993 at the request of the Public Prosecutor’s Office and by reason that the competent Public Prosecutor was on holiday.

This hearing was also adjourned first until 16 June 1993, then until 13 October 1993 and subsequently until 1 December 1993 by reason of a lawyers’ strike of indefinite duration.

On 1 December 1993 the judge granted the Public Prosecutor’s request to join the proceedings to another set of proceedings pending before the same court and adjourned the proceedings until 11 March 1994.

On the latter the date the two proceedings were joined. The proceedings were then adjourned until 12 April 1994.

On the latter date the applicant and thirteen co-accused were committed for trial before the Benevento District Court  for the trial fixed for 17 November 1994.

On 31 October 1994 the President of the court at the request of the Public Prosecutor postponed the hearing until 15 June 1995, so that the case could be examined at the same time as another set of proceedings instituted against another co-accused.

The Benevento lawyers being on strike until 24 June 1995, the hearing was adjourned until 9 October 1995 and subsequently postponed first, at the request of the parties, to 21 March 1996, then to 14 November 1996 because of the elections of 21 April 1996.

The hearing was then postponed until 17 February 1997 by reason of the need to renew a notification and the legitimate impediment of one counsel.

The hearing was then postponed again, on the ground of the withdrawal of one judge, until 13 March 1997.

At the hearing held on 13 March 1997 the judge found that the applicant's committal for trial was invalid and sent the proceedings back to the Preliminary Investigations' Office for the invalid act to be rectified.

By an act dated 25 March 1997, the Judge for the Preliminary Hearing set the hearing at 18 June 1997; this hearing was postponed until 17 September 1997 by reason of a Benevento lawyers’ strike.

The hearing of 17 September 1997 was adjourned until 24 September 1997 at the request of the defence.

On the latter date the Judge for the Preliminary Investigations decided that the proceedings against the applicant and four co-accused be discontinued ( non luogo a procedere ). This decision became final on 15 October 1997.

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

On 1 July 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 19 October 1998, to which the applicant replied on 4 November 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the European Court of Human Rights in accordance with the provisions of that Protocol.

The applicant’s complaint relates to the length of the proceedings in question.  These proceedings began on 14 January 1993 and ended on 15 October 1997 when the decision to discontinue the proceedings against the applicant became final.

According to the applicant, the length of the proceedings - a period of approximately four years and nine months - is in breach of the "reasonable time" requirement laid down in Article 6 § 1 of the Convention.  The Government refute the allegation.

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, unanimously, the Court

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

Erik Fribergh Christos Rozakis

Registrar President