Lexploria

In the Ferraro case*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of

Human Rights and Fundamental Freedoms ("the Convention")** and the

relevant provisions of the Rules of Court***, as a Chamber composed

of the following judges:

Mr R. Ryssdal, President,

Mr F. Matscher,

Mr L.-E. Pettiti,

Sir Vincent Evans,

Mr C. Russo,

Mr J. De Meyer,

Mr N. Valticos,

Mr A.N. Loizou,

Mr J.M. Morenilla,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 2 October 1990 and

24 January 1991,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

Notes by the Registrar

* The case is numbered 16/1990/207/267. The first number is the

case's position on the list of cases referred to the Court in the

relevant year (second number). The last two numbers indicate the

case's position on the list of cases referred to the Court since

its creation and on the list of the corresponding originating

applications to the Commission.

** As amended by Protocol No. 8, which came into force on

1 January 1990.

*** The amendments to the Rules of Court which came into force on

1 April 1989 are applicable to this case.

_______________

PROCEDURE

1. The case was referred to the Court on 16 February 1990 by the

European Commission of Human Rights ("the Commission"), within the

three-month period laid down by Article 32 § 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 13440/87) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Enrico Ferraro, on 26 November 1987.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby Italy recognised

the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as

to whether the facts of the case disclosed a breach by the

respondent State of its obligations under Article 6 § 1 (art. 6-1).

2. In response to the enquiry made in accordance with Rule 33

§ 3 (d) of the Rules of Court, the applicant stated that he wished

to take part in the proceedings and designated the lawyer who would

represent him (Rule 30). On 13 March 1990 the President of the

Court granted him leave to use the Italian language (Rule 27 § 3).

3. On 21 February 1990 the President decided that, pursuant to

Rule 21 § 6 and in the interests of the proper administration of

justice, this case and the cases of Motta, Manzoni, Pugliese (I),

Alimena, Frau, Ficara, Viezzer, Angelucci, Maj, Girolami,

Triggiani, Mori, Colacioppo and Adiletta and Others* should be

heard by the same Chamber.

_______________

* Cases of Motta (4/1990/195/255), Manzoni (7/1990/198/258),

Pugliese (I) (8/1990/199/259), Alimena (9/1990/200/260), Frau

(10/1990/201/261), Ficara (11/1990/202/262), Viezzer

(12/1990/203/263), Angelucci (13/1990/204/264), Maj

(14/1990/205/265), Girolami (15/1990/206/266), Triggiani

(17/1990/208/268), Mori (18/1990/209/269), Colacioppo

(19/1990/210/270), Adiletta and Others (20/1990/211/271-273)

_______________

4. The Chamber to be constituted for this purpose included ex

officio Mr C. Russo, the elected judge of Italian nationality

(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the

President of the Court (Rule 21 § 3 (b)). On 26 March 1990, in the

presence of the Registrar, the President drew by lot the names of

the other seven members, namely Mr F. Matscher, Mr L.-E. Pettiti,

Sir Vincent Evans, Mr J. De Meyer, Mr N. Valticos, Mr A.N. Loizou

and Mr J.M. Morenilla (Article 43 in fine of the Convention and

Rule 21 § 4) (art. 43).

5. Mr Ryssdal assumed the office of President of the Chamber

(Rule 21 § 5) and, through the Registrar, consulted the Agent of

the Italian Government ("the Government"), the Delegate of the

Commission and the applicant's lawyer on the need for a written

procedure (Rule 37 § 1). In accordance with the order made in

consequence, the Registrar received the applicant's memorial and

his additional observations on 2 and 16 July 1990 respectively and

the Government's memorial on 31 July. By a letter received on 31

August, the Secretary to the Commission informed the Registrar that

the Delegate would submit his observations at the hearing.

6. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 29 August

1990 that the oral proceedings should open on 1 October 1990 (Rule

38).

7. On 1 June 1990 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

8. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, seconded to

the Diplomatic Legal Service of the

Ministry of Foreign Affairs, Co-Agent;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr G. Mochi, avvocato, Counsel.

The Court heard addresses by the above-mentioned

representatives, as well as their answers to its questions.

On 25 October the registry received the Government's

observations on the applicant's claims for just satisfaction.

AS TO THE FACTS

9. Mr Enrico Ferraro, an Italian national, resides in Rome.

The facts established by the Commission pursuant to

Article 31 § 1 (art. 31-1) of the Convention are as follows

(paragraphs 14-21 of its report, see paragraph 12 below):

"14. On 3 February 1979 the applicant, who at that time was

an inspector with the Ministry of Transport, was questioned by

the police in the course of an inquiry into irregular

practices allegedly committed in vehicle testing and approval

procedures.

Following this questioning, on 7 February 1979 the

applicant and numerous other people were reported to the

prosecuting authorities.

15. On 8 February 1979 the Rome prosecuting authorities

issued an arrest warrant for forgery and corruption against

the applicant on a charge of falsely certifying that he had

carried out approval tests on a number of vehicles, allegedly

at the request of a certain M. who, in return, had supplied

him with watches imported from Japan to sell off on the

Italian market.

16. The applicant was arrested on an unspecified date and

placed in custody until 13 April 1979, when the investigating

judge granted his application for bail.

On 8 March 1979 the applicant was suspended from his

duties as principal inspector at the Ministry of Transport,

with effect from 8 February 1979.

17. The applicant was first questioned on two occasions,

on 12 and 26 February 1979, by the public prosecutor; he was

then questioned on 6 March 1979 by the investigating judge

after the latter had taken over the investigation, then again

on 26 March 1979. The Rome prosecuting authorities drew up

their final submissions on 31 December 1981. The applicant

was committed for trial on 21 July 1982.

18. The first hearing in the Rome District Court, which

had been scheduled for 2 May 1983, was adjourned to 31 January

1984, owing to irregularities in the notifications. This

second hearing was adjourned to 7 February 1984, owing to the

'precarious' nature of the composition of the court because

one of the court's judges was about to be transferred. The

trial proper did not begin until a hearing on 7 February 1984.

The following hearing, set for 28 May 1984, was adjourned to

3 December 1984. The fact was that the court had learned that

a committal for trial was soon to be pronounced in a second

set of proceedings, which had been brought against the

applicant and others for similar offences, and the court had

deemed it advisable to deal with the two cases together.

19. The second set of proceedings had been opened

following a police report of 12 April 1980 and concerned

testing procedures for cars imported into Italy by a firm

called V. The investigation into this case was being

conducted by the same investigating judge handling the

investigation in the first case. This judge questioned the

applicant on the new charges on 5 June 1980. On 23 February

1984 the prosecuting authorities drew up their final

submissions and the committal for trial was pronounced on 28

October 1984.

20. However, the hearing of 3 December 1984, which had

been scheduled in order to combine the two cases, had to be

adjourned sine die because the court had not yet received the

file concerning the second case.

A hearing was scheduled for 22 April 1987, on which

date the court ordered that the two sets of proceedings be

combined and, at the request of the defendants' lawyers, that

examination of the case be adjourned until 13 May 1987.

On 13 May 1987 the court considered that in view of

the complexity of the case it would be advisable to adjourn

the examination to a hearing on 22 May 1987.

21. The trial hearings took place on 22 May, 27 May and

3 June 1987. At this last hearing the court delivered its

judgment in which it purely and simply acquitted the

applicant.

In the reasons for its judgment the court noted, inter

alia, that the technical and legal complexity of the vehicle

testing procedures had resulted in a number of

misunderstandings during the investigation. The judgment

[was] filed with the registry on 17 June 1987 ... .

[The applicant's] suspension from the civil service

was not revoked until 17 September 1987, following his

acquittal."

10. The judgment became final in relation to the applicant on

3 July 1987, when the time-limit for an appeal by the prosecuting

authorities expired (Article 199 of the Code of Criminal

Procedure).

PROCEEDINGS BEFORE THE COMMISSION

11. In his application of 26 November 1987 to the Commission

(no. 13440/87) Mr Ferraro alleged that his detention on remand had

not been lawful (Article 5 § 1 of the Convention) (art. 5-1) and

that he had had no effective remedy (Article 5 § 4) (art. 5-4). He

also complained of a breach of the principle of the presumption of

innocence (Article 6 § 2) (art. 6-2), of the unfair nature of his

trial and of the length of the proceedings (Article 6 § 1)

(art. 6-1).

12. On 5 September 1989 the Commission declared the application

admissible as regards the last complaint. On 7 October 1988 it had

declared it inadmissible for the rest. In its report of

5 December 1989 (Article 31) (art. 31), it expressed the unanimous

opinion that there had been a violation of Article 6 § 1

(art. 6-1). The full text of the Commission's opinion is

reproduced as an annex to this judgment*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 197-A

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

13. At the hearing on 1 October 1990 the Government confirmed the

submission put forward in their memorial, in which they requested

the Court to hold "that there has been no violation of the

Convention in the present case".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

14. The applicant claimed that his case had not been examined

within a "reasonable time" as required under Article 6 § 1

(art. 6-1) of the Convention, according to which:

"In the determination ... of any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ... "

The Government disputed this view, whereas the Commission

subscribed thereto.

15. The period to be taken into consideration began on

8 February 1979, the date on which the Italian judicial authorities

ordered the applicant's arrest; it ended on 3 July 1987 (see

paragraph 10 above).

16. The participants in the proceedings presented argument as to

the way in which the various criteria employed by the Court in this

context - such as the degree of complexity of the case, the conduct

of the applicant and that of the competent authorities - should

apply in the present case.

17. Article 6 § 1 (art. 6-1) of the Convention guarantees to

everyone who is the object of criminal proceedings the right to a

final decision within a reasonable time on the charge against him.

The Court points out that, under its case-law on the subject,

the reasonableness of the length of proceedings is to be assessed

in the light of the particular circumstances of the case. In this

instance the circumstances call for an overall assessment (see,

mutatis mutandis, the Obermeier judgment of 28 June 1990, Series A

no. 179, p. 23, § 72).

The proceedings were undoubtedly of some complexity owing to

the nature of the facts to be established but the applicant did

nothing to slow down their progress. The two investigations of the

alleged offences extended over a period of approximately five years

and eight months from 8 February 1979 to 28 October 1984, after

which there was a long period of inactivity in the trial

proceedings up until 22 April 1987. It follows that the Court

cannot regard as "reasonable" in the instant case a lapse of time

of nearly eight years and five months.

There has therefore been a violation of Article 6 § 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

18. Under Article 50 (art. 50),

"If the Court finds that a decision or a measure taken by a

legal authority or any other authority of a High Contracting

Party is completely or partially in conflict with the

obligations arising from the ... Convention, and if the

internal law of the said Party allows only partial reparation

to be made for the consequences of this decision or measure,

the decision of the Court shall, if necessary, afford just

satisfaction to the injured party."

A. Damage

19. Mr Ferraro claimed compensation of 130,000,000 Italian lire

for pecuniary and non-pecuniary damage. He cited the loss of

earnings resulting from the temporary loss of his employment and

the considerable emotional pressure generated by the length of the

proceedings.

20. The Commission took the view that the applicant should be

awarded a sum equivalent to half the amount claimed.

The Government, for their part, contended that there was no

causal connection between the alleged pecuniary damage and the

violation complained of; in their opinion, at the most it would be

appropriate, if a violation were to be found, to award a modest sum

for non-pecuniary damage.

21. The Court accepts that the failure to conduct proceedings

within a reasonable time prejudiced the applicant in relation to

his employment and caused him a degree of non-pecuniary damage;

making an assessment on an equitable basis, it awards him

60,000,000 lire under this head.

B. Costs and expenses

22. The applicant sought the reimbursement of a total of

6,008,600 lire and 743 French francs in respect of lawyer's fees

and the expenses relating to the proceedings before the Commission

and the Court.

23. Having regard to the information available to it, the

observations submitted and its case-law in this field, the Court

awards him the full amount.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 § 1

(art. 6-1) of the Convention;

2. Holds that the respondent State is to pay to Mr Ferraro

60,000,000 (sixty million) Italian lire for damage and

6,008,600 (six million eight thousand and six hundred) lire

and 743 (seven hundred and forty-three) French francs for

costs and expenses;

3. Dismisses the remainder of the claim for just satisfaction.

Done in English and in French, and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 19 February

1991.Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar

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CASE OF FERRARO v. ITALY

CASE OF FERRARO v. ITALY

LEXI