SEPARATE OPINION OF JUDGE PINHEIRO FARINHA

(Translation)

1. I am in agreement with the operative provisions of the judgment. Nevertheless, I feel bound to give my interpretation of point 1 of the operative provisions and I differ from the majority as regards paragraphs 64 and 69 of the judgment.

2. The Court has rejected the objection based on the " ex officio " examination of the "reasonable time" issue in the cases of Mr. Foti , Mr. Lentini and Mr. Cenerini .

The reason for this is, in my view, that the Commission did not examine the issue ex officio.

In point of fact, "from the outset, the information furnished by Mr. Foti , Mr. Lentini and, above all, Mr. Cenerini showed that the proceedings in question had been pending for years. Subsequently, they kept the Commission advised of the progress of these proceedings - sometimes of their own initiative ... and at other times in reply to questions by the Commission ... -, calling on the latter to rule on their grievances as a matter of urgency" (see paragraph 44 of the judgment).

The applicants had thus stated the facts (length of the proceedings). The Commission is competent to consider, even ex officio, whether the facts referred to it in an application disclose violations of the Convention other than those complained of in the application (see the Neumeister judgment of 27 June 1968, Series A no. 8, p.41, § 16). It should be borne in mind that applicants are not always in a position to appreciate the legal scope of their grievances. The Commission did not of its own motion investigate the question of the length of the proceedings. Once the applicants had indicated the duration of the proceedings, the Commission was obliged to review its compatibility with the Convention. Had the Commission taken it upon itself to inquire into this matter of duration, it would have been carrying out an ex officio examination in excess of its jurisdiction, but, in the present circumstances, this cannot be said to have been the case. It was for this reason that I voted in favour of point 1 of the operative provisions of the judgment.

3. In my view, the passing of "one year .. between the transferral order by the Court of Cassation and the summons of the applicant Foti to appear before the Potenza Regional Court " (see paragraph 64 of the judgment) goes beyond what is reasonable.

Similarly, and contrary to the conclusion set out in paragraph 69 of the judgment, I do not adjudge to be reasonable the delay between the issue by the Court of Cassation of the transferral order in the Lentini proceedings (16 June 1975) and the holding of the first hearing before the Potenza Regional Court (26 May 1976).

[*]  Note by the registry: In this volume, the Rules of Court referred to are those in force at the time proceedings were instituted.  These Rules have been replaced by a revised text that came into operation on 1 January 1983 , but only in respect of cases brought before the Court after that date.