Information Note on the Court’s case-law 213

December 2017

Arnoldi v. Italy - 35637/04

Judgment 7.12.2017 [Section I]

Article 6

Civil proceedings

Article 6-1

Civil rights and obligations

Injured party prevented from joining criminal proceedings as a civil party owing to length of preliminary investigations: Article 6 applicable

Facts – In 1995 the applicant lodged a criminal complaint for forgery (in relation t o witness statements made in the context of her attempts to oppose an unlawful construction on her property). After a preliminary investigation lasting seven years the proceedings were discontinued on the grounds that prosecution of the offence was time-ba rred. The applicant lodged an application under the Pinto Act complaining of the excessive length of the criminal proceedings. Her application was declared inadmissible on the grounds that she did not have the status of a civil party to the proceedings ins tituted in respect of her complaint, and that it had been open to her to assert her rights before the civil courts without awaiting the outcome of the preliminary investigation.

Under Italian law the injured party cannot join the proceedings as a civil par ty until the preliminary hearing. In the present case no preliminary hearing had been held at the time the offence was declared time-barred.

Law – Article 6 § 1

(a) Applicability – The civil limb of Article 6 § 1 was found to be applicable for the followi ng reasons, linked in particular to the specific features of the Italian legal system.

(i) Existence of a civil right on the part of the injured party – The two criteria established by the Court’s case-law were alternative, not cumulative. It was both necessary and sufficient for the person concerned to have acted either with a view to obtaining “reparation”, even if only symbolic, or with a view to “pr otection of a civil right”, whether by applying to join the proceedings as a civil party or simply by bringing a private prosecution. Consequently, the fact that no formal compensation claim was made did not preclude the applicability of Article 6. It was necessary to examine, on a case-by-case basis, whether the domestic legal system recognised that the person bringing the complaint had a civil interest to defend in the criminal proceedings.

In the present case it was common ground that both these criteria were met. Firstly, by lodging a criminal complaint, and as detailed at point (ii) below, the applicant had demonstrated her interest in obtaining redress in due course for the breach of a civil right to which she could claim entitlement on arguable ground s. Secondly, the case had concerned forgery proceedings in which the applicant sought recognition of the untruthful nature of the statements made by third parties, on the basis of which the domestic authorities had rejected her application for protection o f her property rights.

(ii) Decisive nature of the preliminary investigation stage for protection of the civil rights of the injured party – This issue could not be examined in the abstract, as consideration had to be given to the particular features of t he national legal system and the specific circumstances of the case.

Under the Italian Code of Criminal Procedure the injured party had a number of rights, including the right to carry out investigations independently of those conducted by the prosecution and the defence and the right to appeal against a decision to discontinue proceedings. Moreover, the Italian system was governed by the principle of “legality of prosecution”. This meant that where the national authorities became aware of acts liable to co nstitute an offence (for instance following a complaint), they were obliged, where applicable, to prosecute those responsible. Accordingly, having lodged a complaint, injured parties were entitled to expect, in the cases provided for by law, that proceedin gs would be commenced, which they could join as civil parties in order to seek redress for the damage sustained.

Accordingly, under Italian law, the position of an injured party who, while awaiting the opportunity to join the proceedings as a civil party, had exercised at least one of these rights and opportunities in the criminal proceedings, was not substantially d ifferent from that of a civil party. The outcome of the preliminary investigation was thus decisive for the civil right at issue.

In the present case the applicant had exercised at least one of the rights and opportunities granted to the injured party unde r domestic law, as she had submitted documents, had explicitly requested that she be notified if the proceedings were discontinued, and had repeatedly called for the prosecution to act and for the proceedings to be concluded swiftly.

(iii) Objection conce rning the existence of other remedies capable of protecting the applicant’s civil interests – The fact that other avenues had been open to the applicant (namely, an application to the civil courts) in order to argue that the statements in question were fal se was a circumstance which the Court was more apt to consider when assessing the proportionality of restrictions on access to a court, and was not relevant in the context of the applicability of Article 6.

Where the domestic legal system offered a remedy aimed at the protection of a civil right, the State was required to ensure that litigants enjoyed the fundamental safeguards of Article 6, even where the domestic rules allowed a different action to be brought.

Furthermore, since the applicant had not take n steps outside the criminal proceedings to secure protection of her civil right, she could not be considered to have waived her rights under Article 6.

Conclusion : Article 6 applicable (unanimously).

(b) Merits – In view of the specific features of Itali an criminal procedure, the starting-point of the period to be taken into consideration was the date of the applicant’s complaint (October 1995), and the finishing-point was that of the judge’s decision to discontinue the proceedings (January 2003). That pe riod of more than seven years, for the preliminary investigation alone, appeared excessive.

Conclusion : violation (unanimously).

Article 41: EUR 4,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Sottani v. Italy (dec.), 26775/02, 24 February 2005, Information Note 72 ; and Mihova v. Italy (dec.), 25000/07, 30 March 2010, Information Note 128 )

© C ouncil of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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