DECISION

AS TO THE ADMISSIBILITY OF

Application No. 39694/98

by Francesco PESONI

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 P. Lorenzen ,

Mrs M. Tsatsa-Nikolovska ,

Mr A. 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 14 October 1997 by Francesco PESONI against Italy and registered on 5 February 1998 under file No. 39694/98;

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 3 September 1998 and the observations in reply submitted by the applicant on 28 September 1998;

Having deliberated;

Decides as follows:

AS TO THE FACTS

The applicant is an Italian national, born in 1953, and currently residing in Goito ( Mantova ).

He is represented before the Court by Mr Marco Della Luna , a lawyer practising in Mantova .

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

On 30 January 1986, the Mantova police seized some documents belonging to a limited company administered by the applicant, who was charged with some tax offences.

On 3 February 1986, the Mantova Public Prosecutor confirmed the seizure.

On 20 February 1989, the Mantova Public Prosecutor’s Office requested the investigating judge to declare that the Mantova authorities had no jurisdiction to deal with the case.

In a judgment of 4 march 1989, the Mantova investigating judge declared that the case was outside its territorial jurisdiction and ordered the file to be forwarded to the Rimini Public Prosecutor’s Office.

On 17 March 1989, this Office started investigating the case.

On 24 May 1991, the Rimini Public Prosecutor heard the applicant.

In an order of 31 December 1991, the Rimini investigating judge committed the applicant and six other persons for trial before the Rimini District Court.

On 12 July 1995, the President of the District Court summoned the applicant to appear before the Court at a hearing on 21 November 1995. This order was served on the applicant on 19 August 1995.

The hearing was held on 21 November 1995. In a judgment of 5 December 1995, the Rimini District Court sentenced the applicant to two years' imprisonment and to a fine of 2,000,000 lire for failure to present the compulsory taxpayers’ lists and for spoliation of tax documents.

On 11 January 1996, the applicant lodged an appeal with the Bologna Court of Appeal. On 6 March 1997, the applicant was summoned to appear before the Court of Appeal at the hearing on 13 May 1997.

In a judgment given on the same day and filed with the court registry on 31 May 1997, the Court of Appeal acquitted the applicant in respect of the charge of failure to present one specific taxpayers’ list and held that the remainder of the charges brought against him were time-barred.

COMPLAINT

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

PROCEDURE

On 21 May 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 3 September 1998, to which the applicant replied on 28 September 1998.

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.

AS TO THE LAW

The applicant's complaint relates to the length of the proceedings in question. These proceedings began on 30 January 1986, when the Mantova police seized some documents belonging to a limited company administered by the applicant and ended on 3 1 May 1997, when the Bologna Court of Appeal’s judgment was filed with its registry .

The Government observe that the various delays which occurred before the Mantova authorities and in the Rimini District Court were due to the workload of the domestic courts as well as to the difficulties related to the entry into force, in 1989, of a new Code of Criminal Procedure. Moreover, they note that the applicant benefited from the length of the proceedings as the Court of Appeal held that some of the charges brought against him were time-barred and consequently annulled his conviction.

According to the applicant, the length of the proceedings - a period of eleven years and four months - is in breach of the "reasonable time" requirement laid down in Article 6 § 1 of the Convention. He recalls that the workload of a domestic court cannot absolve a Government from complying with the substantive provisions of the Convention and observes that the new Code of Criminal Procedure was not applicable to the proceedings brought against him, which were entirely governed by the former Code of Criminal Procedure. He considers, finally, that the investigations carried out by the domestic authorities were incomplete and ineffective .

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