SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38414/97 by Vincenzo LEDONNE against Italy

The European Court of Human Rights ( Second Section ) sitting on 1 December 1998 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 ,

and 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 15 September 1997 by Vincenzo Ledonne against Italy and registered on 3 November 1997 under file no. 38414/97;

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 27 April 1998 and the observations in reply submitted by the applicant on 3 June 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Italian national, born in 1939 and resident in Cosenza .

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

The proceedings in question in the present case concern the criminal charge of apology for fascism brought against the applicant.

The following is a summary of the proceedings:

On 16 June 1992, the Cosenza Public Prosecutor’s Office requested that the applicant be committed for trial on a charge of making an apology for fascism.

On 6 July 1992, the Cosenza investigating judge scheduled the date of the preliminary hearing for 2 November 1992.

In an order given on the same day, the investigating judge summoned the applicant to appear before the Cosenza District Court at a hearing on 24 June 1993.

The first hearing was adjourned, because of the absence of the applicant’s lawyer, to 26 January 1995. At that hearing, the District Court adjourned the proceedings of its own motion to 6 June 1995 and then to 4 June 1996 because the lawyers of the Cosenza Bar Association were on strike. On that date, having regard to the fact that neither the applicant nor his lawyer had taken part in any of the previous hearings, the District Court appointed a duty barrister, ordered that a fresh summons be served and scheduled a hearing for 29 April 1997. On that occasion, the parties presented their final pleadings.

In a judgment of 29 April 1997, filed with the court registry on 21 May 1997, the Cosenza District Court acquitted the applicant.

COMPLAINT

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

PROCEDURE

On 4 March 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 27 April 1998, to which the applicant replied on 3 June 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.

THE LAW

The applicant’s complaint relates to the length of the proceedings in question. These proceedings began on 16 June 1992, when the Cosenza Public Prosecutor’s Office requested that the applicant be committed for trial on a charge of apology for fascism and ended on 21 May 1997, when the District Court’s judgment was filed with its registry .

The Government observe that the delay in fixing the date of the trial hearing was due to the workload of the Cosenza District Court and notes that the lawyer of the applicant’s own choosing did not take part in any of the first three hearings.

According to the applicant, the length of the proceedings - a period of four years, eleven months and five days - 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 that in criminal proceedings applicants are not expected to co-operate actively with the judicial authorities.

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