FIRST SECTION
DECISION
Application no. 20507/07
Domenico BERNARDINI and Giuliana GASPARI against Italy
and 16 other applications
(see list appended)
The European Court of Human Rights (First Section), sitting on 13 February 2025 as a Committee composed of:
Erik Wennerström, President,
Raffaele Sabato,
Artūrs Kučs, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the applications against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;
the decision to give notice of the complaints concerning Article 6 § 1 and Article 13 of the Convention to the Italian Government (“the Government”) represented by their Agent, Mr L. D’Ascia, and to declare inadmissible the remainder of the applications;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The present applications concern the rights of the injured party in criminal proceedings.
2. On various dates the applicants lodged criminal complaints with the domestic authorities in respect of specific offences. The domestic authorities discontinued the proceedings on various grounds at the stage of the preliminary investigations before the applicants had the opportunity to join them as civil parties. The details of the proceedings in each application are indicated in the appended table.
3. Some of the applicants brought proceedings under Law no. 89 of 24 March 2001 (“Pinto proceedings”) to obtain compensation for the excessive length of the criminal proceedings (see appended table). They requested that the authorities consider the length of the proceedings from the date of the filing of the criminal complaints, but their requests were rejected. In particular, the domestic courts found that the applicants were not entitled to claim compensation as they had not joined the proceedings as civil parties.
4. All the applicants except for those in applications nos. 56539/19 and 29645/20 complained under Article 6 § 1 of the Convention of the excessive length of the domestic proceedings and, in particular, of the preliminary investigations.
5. As to applications nos. 20507/07, 56687/10, 7708/14, 19778/16, 56539/19, 29645/20, 44400/20, 38296/21, 10449/22, 17052/22 and 17407/22 the applicants also complained under Article 6 § 1 of the Convention that they did not have access to a court to determine their civil claims due to the inaction of the authorities during the investigations, which had led to the discontinuance of the criminal proceedings in which they were injured parties.
6. With respect to applications nos. 56539/19 and 29645/20 the applicants further complained under Article 1 of Protocol No. 1 to the Convention of the failure to obtain compensation for the discontinuance of the criminal proceedings.
7. The applicants in applications nos. 17151/10, 42661/10, 56687/10, 19778/16, 56539/19, 8605/22, 10449/22, 17052/22 and 17407/22 furthermore complained under Article 13 of the Convention of the absence of an effective remedy to obtain compensation for the excessive length of the preliminary investigations. The same complaint was raised in application no. 38296/21 both under Article 13 and Article 14 of the Convention.
THE COURT’S ASSESSMENT
8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
9. At the outset the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), considers that the complaints raised in applications nos. 56539/19 and 29645/20 under Article 1 of Protocol No. 1 to the Convention fall to be examined under Article 6 of the Convention, and that the complaint raised in application no. 38296/21 under Articles 13 and 14 of the Convention falls to be examined solely under Article 13 of the Convention.
10. The parties disagreed in respect of the applicability of Article 6 of the Convention in its civil limb in the context of criminal proceeding before the applicants as the injured party formally joined the proceedings as a civil party.
11. The Court has summarised the relevant principles in Fabbri and Others v. San Marino ([GC], nos. 6319/21 and 2 others, §§ 77-93, 24 September 2024).
12. In that case, the Court considered that neither Article 6, nor any other provision of the Convention, may be interpreted as compelling the Contracting Parties to enable civil claims in respect of damage to be made in criminal proceedings. Nevertheless, while claims in respect of damage normally fall to be brought in the civil courts, a majority of national systems nowadays provide for the possibility of making such claims in the framework of criminal proceedings (at least at certain stages) (ibid., § 84).
13. In this context, the Court found that for Article 6 in its civil limb to be applicable in the context of criminal proceeding, firstly, an applicant must have a substantive civil right (such as the right to compensation for damage sustained) recognised under domestic law and, secondly, the domestic legislator must have endowed the victim of a crime with a (procedural) right of action to pursue that civil right in, and at the relevant stage of, the criminal proceedings complained of. The latter must be proceedings of a judicial nature (ibid., § 88).
14. Furthermore, it found that for Article 6 to apply in its civil limb in the context of the criminal proceedings, the civil right has to be invoked and/or pursued via the appropriate channel, in accordance with the tenets of the domestic legal framework. Thus, where domestic law provides for a formal status of “civil party” Article 6 will apply only if, and from the time when, the applicant has lodged a formal request to obtain such status, even if it has not yet been decided upon. In domestic systems having more flexible and less formalistic approaches (i.e. where no official “civil party” status exists, for example, those systems requiring solely that a civil claim was lodged or brought to the attention of the domestic criminal courts) Article 6 will apply if, and from the moment when, the applicant’s pursuance of a civil right was clear, in the light of the tenets of that domestic system (ibid., § 90).
15. Additionally, Article 6 will only apply if the civil right being pursued in the criminal proceedings is not actively being pursued in parallel (in other words, proceedings are not suspended), before some other court or has already been decided or settled elsewhere (ibid., § 92).
16. The Court observes that the Grand Chamber’s judgment in Fabbri and Others adopted a different approach from that taken in previous cases lodged against Italy, where the Court had found Article 6 applicable in its civil limb at the investigative stage of the proceedings despite the fact that, according to the domestic law, the injured person can join the proceedings as a civil party only at a later stage (see Sottani v. Italy (dec.), no. 26775/02, ECHR 2005-III (extracts); Patrono, Cascini and Stefanelli v. Italy, no. 10180/04, § 33, 20 April 2006; Arnoldi v. Italy, no. 35637/04, § 44, 7 December 2017; and Petrella v. Italy, no. 24340/07, § 23, 18 March 2021).
17. In the present case it is not in dispute that as victims of the alleged offences the applicants had a substantive right, recognised under domestic law, to compensation for the damage they had allegedly sustained, this being a civil right, and that Article 76 of the Code of Criminal Procedure (“the CPP”) endowed the applicants with a (procedural) right of action to pursue that civil right in the context of the criminal proceedings.
18. As to whether the civil right at issue (compensation for the damage allegedly sustained) was invoked and/or pursued using the appropriate channel, in accordance with the tenets of the domestic legal framework, the Court notes that, in Italy, domestic law provides for a formal status of “civil party”, subject to certain conditions. In particular, an injured party must make a formal request by means of a declaration under Article 78 of the CPP to be admitted as a civil party in the criminal proceedings (dichiarazione di costituzione di parte civile).
19. The domestic legislation allows a civil claim to be filed within the framework of criminal proceedings only after a suspect or accused person has been committed to trial. Therefore, under domestic law, a victim may claim compensation for loss or damage caused by a criminal offence only once the offender has been officially charged. More specifically, Article 79 of the CCP states that the injured party may apply to join the proceedings as a civil party no earlier than the preliminary hearing (at which the judge is called upon to decide whether the accused should be committed for trial) or equivalent procedural stages.
20. The Court further notes that it is only the civil party who has been duly joined to the proceedings in accordance with the law who has a right to obtain a determination of that civil claim in the case of conviction. Thus, in the absence of a declaration under Article 78 of the CPP, which is necessary to acquire civil-party status (and make an actual claim for compensation), it cannot be considered that a civil right was invoked in the criminal proceedings and/or pursued through the appropriate channel, in accordance with the tenets of the domestic legal framework. Furthermore, if the injured party fails to make the civil claim in the framework of criminal proceedings, this does not prevent that person from having the claim resolved in separate civil proceedings (see Article 75 of the CPP governing the relationship between separate sets of civil and criminal proceedings concerning the same matter).
21. Turning to the circumstances of the present case, the Court observes that the applicants only lodged their criminal complaints and that some of them merely reserved their right to join as civil parties any eventual proceedings. Nevertheless, none of them lodged a declaration under Article 78 of the CPP to be admitted to the criminal proceedings as a civil party as all the proceedings were dismissed by the judge for preliminary investigations – that is, before the preliminary hearing (see paragraph 19 above).
22. Therefore, in light of the principles set forth in the case Fabbri and Others (see paragraphs 12-14 above), the Court finds that the proceedings in question did not involve the determination of a “civil right” within the meaning of Article 6 and that this provision did not apply to the proceedings at issue. It follows that the applicants’ complaints under Article 6 (see paragraphs 4 and 5 above) are incompatible ratione materiae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
23. Having regard to the finding that Article 6 of the Convention is inapplicable, Article 13 of the Convention also does not apply in the present case as the applicants did not have an “arguable” complaint under any Article of the Convention or its Protocols (see Maurice v. France [GC], no. 11810/03, § 106, ECHR 2005‑IX). The complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 13 March 2025.
Liv Tigerstedt Erik Wennerström
Deputy Registrar President
APPENDIX
List of applications
No.
Application no.
Case name
Introduction date
Applicant’s name
Year of birth/registration
Place of residence
Nationality
Representative’s name
Location
Domestic proceedings
1.
20507/07
Bernardini and Gaspari v. Italy
04/05/2007
Domenico BERNARDINI
1930
Sarezzo
Italian
Giuliana GASPARI
1936
Sarezzo
Italian
Gianbattista Ludovico SCALVI
Brescia
Criminal complaint for fraud 04/11/2000; and extorsion 06/08/2002 (Mr Bernardini)
Brescia office of the prosecution
Criminal complaint for fraud and extorsion (Mrs Gaspari)
27/01/2003, Brescia office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Brescia District Court
R.G. G.I.P. 9219/06, 15/12/2006
2.
40533/09
De Angelis v. Italy
22/06/2009
Ivo DE ANGELIS
1953
Folignano
Italian
Stefano PIERANTOZZI
Ascoli Piceno
Criminal complaint for trespassing
20/02/2004, Ascoli Piceno office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Ascoli Piceno District Court
R.G. G.I.P. 1369/09, 30/05/2009
3.
17151/10
Spada v. Italy
18/03/2010
Tommaso SPADA
1930
Milazzo
Italian
Main proceedings:
Criminal complaint for defamation
05/01/2000, Messina office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Messina District Court
R.G. G.I.P. 10574/2001, 08/11/2007
Pinto proceedings:
date of introduction: 18/03/2008
Final decision
Reggio Calabria Court of Appeal
R.G. V.G. 124/08, 25/06/2009 (final 16/09/2010)
4.
42661/10
Lambiase v. Italy
16/06/2010
Emilio LAMBIASE
1956
Cava de’ Tirreni
Italian
Alfonso VISCARDI
Salerno
Main proceedings:
Criminal complaint for forgery
09/02/1998, Salerno office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Salerno District Court
R.G. G.I.P. unknown, 04/08/2006
Pinto proceedings:
Date of introduction unknown
Judgment
Naples Court of Appeal
R.G. V.G. 3414/06, 12/05/2007
Judgment
Court of Cassation
R.G. 14560/08, 10/02/2010
5.
56687/10
Esposito and Others v. Italy
09/09/2010
Marco ESPOSITO
1973
Naples
Italian
Paola ESPOSITO
1979
Naples
Italian
Francesco ESPOSITO
1948
Naples
Italian
Marco ESPOSITO and
Franco VELLA
Naples
Criminal complaint for medical malpractice
28/02/2003, Naples office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Rome District Court
R.G. G.I.P. 16781/06, 10/03/2010
6.
9518/12
Perri v. Italy
21/11/2011
Vincenzo PERRI
1961
Lamezia Terme
Italian
Nicolina PERRI
Lamezia Terme
Main proceedings:
Criminal complaint for fraud
13/06/1996, Lamezia Terme office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Lamezia Terme District Court
R.G. G.I.P. 70/99, 26/03/2007
Pinto proceedings:
date of introduction: 24/09/2007
Judgment
Salerno Court of Appeal
R.G. V.G. 507/2007, 09/02/2009
Judgment
Court of Cassation
R.G. 2236/10, 23/05/2011
7.
7708/14
Parisi v. Italy
19/10/2013
Paola PARISI
1940
Milan
Italian
Pietro Antonio GIANNI
Milan
Criminal complaint for fraud
14/12/2007, Milan office of the prosecution
Decision discontinuing the proceedings partially for expiry of statutory limitation, partially on the merits
Judge for preliminary investigations
Milan District Court
R.G. G.I.P. 26560/12, 22/04/2013
8.
19778/16
De Luca v. Italy
26/03/2016
Patrizia DE LUCA
1968
Siracusa
Italian
Francesco MAGRO
Avola
Criminal complaint for forgery
26/07/2008, Syracuse office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Syracuse District Court
R.G. G.I.P. 3809/15, 14/09/2015 (served on 29/09/2015)
9.
56539/19
Pieroni v. Italy
18/10/2019
Maurizio PIERONI
1955
Umbertide
Italian
Raffaello AGEA
Umbertide
Criminal complaint for stalking
18/04/2012, Perugia office of the prosecution
First decision discontinuing the proceedings
Judge for preliminary investigations
Perugia District Court
R.G. G.I.P. unknown, 27/03/2014
Judgment
Court of Cassation
R.G. 474/15, 10/05/2016
Second decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Perugia District Court
R.G. G.I.P. unknown, 15/04/2019 (served on 18/04/2019)
10.
29645/20
Canussio and Others v. Italy
09/07/2020
Corrado CANUSSIO
1969
Milan
Italian
Alessandro CANUSSIO
1977
Milan
Italian
Carla PIASENTIN
1944
Milan
Italian
Marina Silvia MORI
Milan
Criminal complaint for abusive access to computer system and disclosure of confidential information
02/03/2016 and 04/04/2016, Milan office of the prosecution
Judgment of discontinuation for death of the accused
Milan District Court
R.G. 2488/21, 15/03/2022
Criminal complaint for identification of possible accomplices
07/06/2018, Milan office of the prosecution
Request of discontinuation of the proceedings for expiry of the deadline to conduct the investigations
Milan office of the prosecution
R.G.N.R. 64980/18, 23/10/2019
Decision discontinuing the proceedings unknown
11.
44400/20
Garda v. Italy
29/09/2020
Gaetano GARDA
1971
Saronno
Italian
Fabio MONZA
Busto Arsizio
Criminal complaint for defamation
28/07/2016, Busto Arsizio office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Busto Arsizio District Court
R.G. G.I.P. 78/18, 16/01/2020
12.
7154/21
Rovera v. Italy
27/01/2021
Giacomo ROVERA
1939
Acqui Terme
Italian
Mara MODICA AMORE
Milan
Criminal complaint for defamation
25/01/2017, Alessandria office of the prosecution
Decision discontinuing the proceedings on the merits
Judge for preliminary investigations
Alessandria District Court
R.G. G.I.P. 3808/19, 28/07/2020
13.
38296/21
Nuccio v. Italy
23/07/2021
Biagio NUCCIO
1969
Tiggiano
Italian
Iolanda DE FRANCESCO
Corsano
Criminal complaint for forgery
24/11/2016, Lecce office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Lecce District Court
R.G. G.I.P. 5397/19, 01/02/2021
14.
8605/22
Sforza and Others v. Italy
04/02/2022
Giuseppina SFORZA
1969
Collazzone
Italian
Michele GROTTOLO
1968
Riva del Garda
Italian
MALÙ S.A.S DI ORNELLA POLONIO & C.
2012
Piove di Sacco
Italian
Paola MILAN
1973
Vimercate
Italian
STEMA S.N.C.
2011
Rho
Italian
Roberto MAZZUCCHI
Mestre
Criminal complaints for fraud
24/02/2016 and 27/05/2017, Varese office of the prosecution
Decision discontinuing the proceedings on the merits
Judge for preliminary investigations
Varese District Court
R.G. G.I.P. 2309/18, 16/07/2021 (served on 05/08/2021)
15.
10449/22
Semeraro v. Italy
11/02/2022
Vincenzo SEMERARO
1960
San Marzano di San Giuseppe
Italian
Flaviano BOCCASSINI
Taranto
Oral complaint for injuries
06/09/2010, Taranto prison facility
Criminal complaint for injuries
28/07/2014, Taranto office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Taranto District Court
R.G. G.I.P. 4717/17, 22/09/2021
16.
17052/22
Kaur v. Italy
29/03/2022
Daljit KAUR
1974
Monteprandone
Indian
Luigi SALVATI
Rome
Criminal complaints for misappropriation
25/10/2013 and 06/11/2014, Latina office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Latina District Court
R.G. G.I.P. 4365/18, 30/09/2021
17.
17407/22
Singh v. Italy
29/03/2022
Jagtar SINGH
1972
Aprilia
Indian
Luigi SALVATI
Rome
Criminal complaints for misappropriation
25/10/2013 and 18/12/2014, Latina office of the prosecution
Decision discontinuing the proceedings for expiry of statutory limitation
Judge for preliminary investigations
Latina District Court
R.G. G.I.P. 4365/18, 30/09/2021