AS TO THE ADMISSIBILITY OF
Application No. 33454/96
by Marino ALBE'
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 1 July 1998, the following members being present:
MM. M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 June 1996 by
Marino ALBE' against Italy and registered on 16 October 1996 under file
No. 33454/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
1 April 1998 and the observations in reply submitted by the
applicant on 21 April 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian national born in 1950 and currently
residing in Porto Mantovano (Mantova). Before the Commission, he is
represented by Mr. Marco Della Luna, a lawyer practising in Mantova.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In 1986, criminal proceedings were instituted against the
applicant by the Mantova Public Prosecutor's Office.
On 15 March 1989, the Mantova investigating judge summoned the
applicant to appear before the Mantova District Court on charges of
fraud, misappropriation and bankruptcy. On 15 March 1990, the applicant
requested that some witnesses be examined. In an order delivered the
same day, the District Court rejected the applicant's request,
observing that such examinations would have been of no relevance.
In a judgment delivered on 13 June 1990 and filed with the
registry on 27 June 1990, the District Court convicted the applicant
of bankruptcy and sentenced him to eight months' imprisonment. It held
that the charges of fraud and misappropriation had to be dismissed
because of an amnesty.
On 14 June 1990, the applicant lodged an appeal before the
Brescia Court of Appeal. The date of the hearing was fixed on 14 March
1996.
In a judgment delivered the same day and filed with the registry
on 22 March 1996, the Brescia Court of Appeal acquitted the applicant
in respect of the charge of fraud and confirmed the remainder of the
first instance decision.
On 15 March 1996 the applicant appealed on points of law against
this judgment, alleging, inter alia, a violation of Article 6 of the
Convention.
On 3 February 1997, the applicant received from the registry of
the Brescia Court of Appeal an order to pay court costs, informing him
that on 12 November 1996 the Court of Cassation had declared his appeal
inadmissible. The payment order furthermore indicated that by a
judgment of 14 March 1996 the Brescia Court of Appeal had acquitted him
in respect of the charge of bankruptcy.
On 14 March 1997, the applicant addressed a petition to the Court
of Cassation and to the Brescia Court of Appeal, seeking the withdrawal
of the decision of 12 November 1996. He observed in particular that the
Brescia Court of Appeal had not acquitted him, but had confirmed his
conviction of bankruptcy and argued that the Court of Cassation's
decision was based on a misinterpretation of the operative part of the
judgment against which he had appealed on points of law.
Enclosed with their observations, the Government produced the
order of 12 November 1996, from which it transpires that the
applicant's counsel had confined himself to making reference to some
legal provisions, without submitting any substantial grounds supporting
his claims. The Court of Cassation had therefore declared his appeal
on points of law inadmissible for failure to comply with Section 581,
para. 1 c) of the Code of Criminal Procedure, according to which an
appeal must indicate the specific legal arguments and the factual
elements on which each single claim is based.
COMPLAINTS
1. The applicant alleges that the length of the criminal proceedings
instituted against him exceeded the "reasonable time" referred to in
Article 6 para. 1 of the Convention.
2. Invoking Article 6 of the Convention, the applicant alleges that
the Court of Cassation failed to ensure the observance of the
Convention and raises doubts as to the fairness of the proceedings
taken as a whole. He furthermore considers that by refusing to summon
the witnesses he had requested to examine, the national authorities
violated his right under paragraph 3 d) of Article 6.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 June 1996 and registered on
16 October 1996.
On 14 January 1998 the Commission decided to communicate the
application to the respondent Government, pursuant to Rule 48
para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on 1 April
1998. The applicant replied on 21 April 1998.
THE LAW
1. The applicant first complains about the length of the criminal
proceedings instituted against him. He invokes Article 6 para. 1
(Art. 6-1) of the Convention, according to which:
"In the determination of (...) any criminal charge against
him, everybody is entitled to a (...) hearing within a
reasonable time (...)".
The Commission notes that proceedings started on 15 March 1989,
when the Mantova investigating judge summoned the applicant to appear
before the Mantova District Court (see Eur. Court HR, Eckle v. Germany
judgment of 15 July 1982, Series A no. 51, p. 33, para. 73), and ended
on 12 November 1996, the day on which the Court of Cassation's final
order was given (see Eur. Court HR, Baggetta v. Italy judgment of
25 June 1987, Series A no. 119, p. 32, para. 20). The overall length
was thus seven years, seven months and twenty-seven days for three
degrees of jurisdiction.
The Government observe that the length of the proceedings before
the Mantova District Court and the Court of Cassation cannot be
regarded as being unreasonable. As to the second instance proceedings,
the Government maintain that the delay in fixing the date of the
hearing was due to the excessive workload of the Brescia Court of
Appeal.
The applicant argues that his case was a very simple one and
contends that the excessive length is due to the conduct of the
judicial authorities. He criticises the way in which the investigations
have been carried out and observes that the backlog of the Brescia
Court of Appeal cannot absolve the Government from complying with the
"reasonable time" requirement set forth in Article 6 para. 1 (Art. 6-1)
of the Convention.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time", and having regard to all the information in its
possession, that an examination of the merits of the complaint is
required.
2. Invoking Article 6 (Art. 6) of the Convention, the applicant
alleges that the Court of Cassation failed to ensure the observance of
the Convention and raises doubts as to the fairness of the proceedings
taken as a whole. He furthermore considers that by refusing to summon
the witnesses he had requested to examine, the national authorities
violated his right under paragraph 3 d) of Article 6 (Art. 6-3-d).
The Government observe that the examinations requested by the
applicant would have been of no relevance and that the rejection of his
appeal on points of law was due to his failure to comply with the
procedural requirements laid down in Italian law.
The Commission is not required to decide whether or not the facts
alleged by the applicant disclose any appearance of a violation of the
invoked provisions as, under Article 26 (Art. 26) of the Convention,
it may only deal with a matter after all domestic remedies have been
exhausted according to the generally recognised rules of international
law.
In the present case, the Court of Cassation declared inadmissible
the applicant's appeal on points of law because he had failed to
indicate the specific legal arguments and the factual elements on which
his claims were based, as provided for by Article 581, para. 1 c) of
the Italian Code of Criminal Procedure. In these circumstances, where
failure to respect procedural rules constitutes the reason for the
refusal of a remedy, the Commission cannot consider that the
requirement as to the exhaustion of domestic remedies has been
satisfied (N° 10636/83, Dec. 1.7.85, D.R. 43, pp. 171, 173).
The Commission further considers that in the present case there
were no special circumstances that could have absolved the applicant
from the obligation to exhaust domestic remedies, according to the
generally recognised rules of international law.
It follows that the applicant has not met the requirements of
Article 26 (Art. 26) of the Convention as to the exhaustion of domestic
remedies and that the application must be rejected under Article 27
para. 3 of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits of the case,
the applicant's complaint about the length of the criminal
proceedings brought against him;
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy