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CASE OF MOTTA AGAINST ITALY

Doc ref: 11557/85 • ECHR ID: 001-55532

Document date: June 15, 1992

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CASE OF MOTTA AGAINST ITALY

Doc ref: 11557/85 • ECHR ID: 001-55532

Document date: June 15, 1992

Cited paragraphs only

The Committee of Ministers, under the terms of Article 54

(art. 54) of the Convention for the Protection of Human Rights

and Fundamental Freedoms (hereinafter referred to as "the

Convention"),

Having regard to the judgment of the European Court of Human

Rights in the Motta case delivered on 19 February 1991 and

transmitted the same day to the Committee of Ministers;

Recalling that the case originated in an application against

Italy lodged with the European Commission of Human Rights

on 22 April 1985 under Article 25 (art. 25) of the Convention by

Mr Luciano Motta, an Italian national, who complained, inter

alia, of the excessive length of two sets of proceedings

instituted against him - one civil and one criminal;

Recalling that the case was brought before the Court by the

Commission on 16 February 1990;

Whereas in its judgment of 19 February 1991 the Court

unanimously:

- held that there had been a violation of Article 6,

paragraph 1 (art. 6-1), of the Convention;

- held that the respondent state was to pay to Mr Motta

10 million Italian lire for non-pecuniary damage and

2 million Italian lire for costs and expenses;

- dismissed the remainder of the claim for just

satisfaction;

Having regard to the Rules adopted by the Committee of

Ministers concerning the application of Article 54 (art. 54) of

the Convention;

Having invited the Government of Italy to inform it of the

measures which had been taken in consequence of the judgment of

19 February 1991, having regard to its obligation under

Article 53 (art. 53) of the Convention to abide by it;

Whereas, during the examination of the case by the Committee

of Ministers, the Government of Italy gave the Committee

information about the measures taken in consequence of the

judgment, which information appears in the appendix to this

resolution;

Having satisfied itself that the Government of Italy

has paid the applicant the sum provided for in the judgment,

Declares, after having taken note of the information

supplied by the Government of Italy, that it has exercised its

functions under Article 54 (art. 54) of the Convention in this

case.

Appendix to Resolution DH(92)26

Information provided by the Government of Italy

during the examination of the Motta case

by the Committee of Ministers

The new Code of Criminal Procedure, which came into force

on 24 October 1989, abolished the "investigating judge" and

conferred powers of investigation upon the Public Prosecutor, to

whom the criminal police are strictly subordinate. The control

of the lawfulness of the preliminary investigation has been

conferred upon a judge who, without any initiative in the taking

of evidence, may authorise all measures of investigation

interfering with individual freedoms (detention, judicial

supervision, telephone tapping, seizures, etc.) and who decides,

at the end of the preliminary investigation, whether the person

charged should be committed for trial or discharged, or whether

the proceedings should be withdrawn.

It is to be noted that the prosecution has only six months

to institute criminal proceedings. An extension of preliminary

investigations may be granted by the judge for periods not

exceeding six months, provided that the total length of the

investigation is not longer than eighteen months or exceptionally

two years in cases concerning particularly serious offences,

specifically listed, or cases requiring numerous and complex

investigations or measures to be taken abroad.

At the end of the preliminary investigation, when the Public

Prosecutor requests the judge to bring the case before the Court,

the decision taken by the judge at the so-called preliminary

hearing results in the committal for trial and at the same time

in the fixing of a date for the hearing, after the parties and

the competent juridiction have been consulted. The proceedings

before the trial court are adversarial, evidence being taken

orally following the English system of cross examination.

In order to reduce the duration of procedures, the new Code

of Criminal Procedure also set up simplified procedures with a

view either to avoiding hearings before the trial court: abridged

judgments (giudizio abbreviato) or proceedings by decree

(procedimento per decreto); or to avoiding preliminary hearings:

direct judgments (giudizio direttissimo) or immediate judgments

(giudizio immediato). Furthermore, if legal conditions are met,

the person charged and the public prosecutor may ask the

competent judge to apply a penalty upon request (applicazione

della pena su richiesta or pattegiamento). This request implies

proposing to the judge of preliminary investigations or to the

trial court the imposition of a given penalty, including a prison

term of up to two years. Since the coming into force of the Code

of Criminal Procedure, 50% of the new cases have been terminated

speedily by application of the procedure of penalty upon request.

Finally, the Italian Court of Cassation made certain

internal reforms with a view to reducing the average length of

the proceedings dealing with criminal appeals. By way of an

example, whereas the criminal appeals pending on 30 June 1987

still numbered around 55 000, at the end of May 1991 they

numbered 14 713; the Court of Cassation, having decided 44 811

appeals in 1990, has caught up on its backlog.

The Italian authorities hope that, after a transitional

period of coexistence of the old and new systems, the

implementation of the new Code of Criminal Procedure will ensure

that in future criminal proceedings will lead to judgments

delivered within a reasonable time within the meaning of

Article 6, paragraph 1 (art. 6-1), of the Convention.

Furthermore, an act dated 17 January 1992 provided for a

budgetary appropriation of 252 000 million Italian lire

(approximately one thousand million French francs) in order to

finance urgent measures in support of information systems and the

structures, means and services of the administration of justice.

The just satisfaction awarded by the Court was paid

on 9 March 1992.

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