In the case of Adiletta and Others*,
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of Human
Rights and Fundamental Freedoms ("the Convention")** and the relevant
provisions of the Rules of Court***, as a Chamber composed of the
following judges:
Mr R. Ryssdal, President,
Mr F. Matscher,
Mr L.-E. Pettiti,
Sir Vincent Evans,
Mr C. Russo,
Mr J. De Meyer,
Mr N. Valticos,
Mr A.N. Loizou,
Mr J.M. Morenilla,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy
Registrar,
Having deliberated in private on 2 October 1990 and 24 January 1991,
Delivers the following judgment, which was adopted on the
last-mentioned date:
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Notes by the Registrar
* The case is numbered 20/1990/211/271-273. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
** As amended by Protocol No. 8, which came into
force on 1 January 1990.
*** The amendments to the Rules of Court which came into force
on 1 April 1989 are applicable to this case.
_______________
PROCEDURE
1. The case was referred to the Court on 16 February 1990 by the
European Commission of Human Rights ("the Commission"), within the
three-month period laid down by Article 32 para. 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in three
applications (nos. 13978/88, 14236/88 and 14237/88) against the Italian
Republic lodged with the Commission under Article 25 (art. 25) by
three Italian nationals, Mrs Anna and Mrs Maria Adiletta and
Mr Aniello Agovino, on 11 and 12 March 1988.
The Commission's request referred to Articles 44 and 48 (art. 44,
art. 48) and to the declaration whereby Italy recognised the compulsory
jurisdiction of the Court (Article 46) (art. 46). The object of the
request was to obtain a decision as to whether the facts of the case
disclosed a breach by the respondent State of its obligations under
Article 6 para. 1 (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicants stated that they
wished to take part in the proceedings and designated the lawyers who
would represent them (Rule 30). On 19 March 1990 the President of the
Court granted them leave to use the Italian language (Rule 27 para. 3).
3. On 21 February 1990 the President decided that, pursuant to
Rule 21 para. 6 and in the interests of the proper administration of
justice, this case and the cases of Motta, Manzoni, Pugliese (I),
Alimena, Frau, Ficara, Viezzer, Angelucci, Maj, Girolami, Ferraro,
Triggiani, Mori and Colacioppo* should be heard by the same Chamber.
_______________
* Cases of Motta (4/1990/195/255), Manzoni (7/1990/198/258),
Pugliese (I) (8/1990/199/259), Alimena (9/1990/200/260),
Frau (10/1990/201/261), Ficara (11/1990/202/262),
Viezzer (12/1990/203/263), Angelucci (13/1990/204/264),
Maj (14/1990/205/265), Girolami (15/1990/206/266),
Ferraro (16/1990/207/267), Triggiani (17/1990/208/268),
Mori (18/1990/209/269), Colacioppo (19/1990/210/270)
_______________
4. The Chamber to be constituted for this purpose included ex
officio Mr C. Russo, the elected judge of Italian nationality
(Article 43 of the Convention) (art. 43), and Mr R. Ryssdal, the
President of the Court (Rule 21 para. 3 (b)). On 26 March 1990, in the
presence of the Registrar, the President drew by lot the names of the
other seven members, namely Mr F. Matscher, Mr L.-E. Pettiti,
Sir Vincent Evans, Mr J. De Meyer, Mr N. Valticos, Mr A.N. Loizou and
Mr J.M. Morenilla (Article 43 in fine of the Convention and Rule 21
para. 4) (art. 43).
5. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 para. 5) and, through the Registrar, consulted the Agent of
the Italian Government ("the Government"), the Delegate of the
Commission and the applicants' lawyers on the need for a written
procedure (Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the applicants' memorials on 13,
16 and 24 July 1990 and the Government's memorial on 31 July. By a
letter received on 31 August, the Secretary to the Commission informed
the Registrar that the Delegate would submit his observations at the
hearing.
6. Having consulted, through the Registrar, those who would be
appearing before the Court, the President directed on 29 August 1990
that the oral proceedings should open on 1 October 1990 (Rule 38).
7. On 31 August 1990 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
8. The hearing took place in public in the Human Rights Building,
Strasbourg, on the appointed day. The Court had held a preparatory
meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr G. Raimondi, magistrato, seconded
to the Diplomatic Legal Service of the
Ministry of Foreign Affairs, Co-Agent;
(b) for the Commission
Mr S. Trechsel, Delegate;
(c) for the applicants
for Mrs Anna Adiletta
Mr F. Tata, avvocato,
for Mrs Maria Adiletta
Mr T. Apone, avvocato,
for Mr Agovino
Mr P. Cerruti, avvocato, Counsel.
The Court heard addresses by the above-mentioned representatives, as
well as their answers to its questions.
On 25 October and 15 November, respectively, the registry received the
observations of the Commission and the Government on the
applicants'claims for just satisfaction.
9. On 3 December the President refused to grant the applicants
legal aid because they did not satisfy the first of the conditions laid
down in Rule 4 para. 2 of the Addendum to the Rules of Court.
AS TO THE FACTS
10. Mrs Anna and Mrs Maria Adiletta, who are Italian nationals and
reside in Salerno, and Mr Aniello Agovino, who is also an Italian
national and resides in Sarno, are all post-office employees in
Salerno. The facts established by the Commission pursuant to
Article 31 para. 1 (art. 31-1) of the Convention are as follows
(paragraphs 13-21 of its report, see paragraph 12 below):
"13. On 23 June 1974 the applicants received notification of the
institution of proceedings against them (avviso di reato) informing
them that, as the result of a report dated 7 February 1974 by the
inspectorate of the Salerno provincial management board of the postal
and telecommunications service, proceedings had been instituted against
them for signing receipts for pensions paid out by the National
Pensions Institute in the space reserved for recipients and for failing
to comply with the relevant proxy regulations.
The prosecutions also concerned eight other Salerno postal service
officials.
14. A preliminary investigation was opened by the public prosecutor's
office on 7 February 1974. On 24 April 1974, acting on instructions
from the public prosecutor's office dated 13 February 1974, the police
seized the signed receipts which constituted the material evidence and
began to question the accused and the witnesses. The applicants were
questioned on 7, 25 and 26 November 1974 respectively. On
18 December 1974 the police report was transmitted to the public
prosecutor's office.
On 18 January 1975 the investigation was placed in the hands of an
investigating judge.
15. The investigating judge questioned the accused and the witnesses
on 21 January and 17 October 1980. A handwriting analysis was then
produced in just over two months.
On 16 January 1981 the investigating judge repeated the request first
made in letters rogatory sent on 20 October 1980, asking the Nocera
Inferiore magistrate's court to question one of the accused, who had
been prevented by illness from appearing before him.
16. On 29 April 1981 the applicants were committed for trial at the
Salerno District Court with eight other accused. The committal order
ran to three pages.
17. At the first hearing before the Salerno District Court, arranged
for 23 July 1981, the case was adjourned, since the summons concerning
one of the accused, who had not appeared, had not been served.
18. At the following hearing, on 16 November 1981, the case was
adjourned at the request of the defence counsel for one of the
applicants and of two other accused. This happened again at the
hearing on 18 January 1982. On 22 March 1982 the hearing was adjourned
because some of the accused were absent. On 25 May 1982 the defence
asked for the hearing to be adjourned so that the handwriting expert
could be questioned. The hearing scheduled for 22 June 1982 could not
take place because the members of the judiciary in Salerno were holding
a meeting. On 25 October 1982 defence counsel requested a report by
a panel of handwriting experts. On 30 November 1982 the hearing had
to be adjourned because the composition of the court had changed. On
7 February 1983 the hearing had to be adjourned once again because the
experts appointed by the court had not appeared. On 7 March 1983 the
court issued terms of reference to the experts. Their report was filed
on 15 April 1983. On 14 June 1983 the defence asked for further
investigative measures to be undertaken. On 15 November 1983 the
hearing was again adjourned with the agreement of the parties. On
27 February 1984 the case had to be put back on the list for trial de
novo because it was impossible to reconstitute the court with its
original membership since the President had been transferred to another
post.
19. On 24 September 1984 one of the defence counsel pleaded nullity of
the committal order and the prosecution called for charges to be
preferred for false representation in an official document (falso
ideologico). The case was referred back to the investigating judge for
him to conduct further investigations.
The applicants and the other accused persons were once again committed
for trial on 27 June 1986. The order committing them for trial, which
concerned eight other accused persons, ran to four pages.
20. On 16 September 1987 the Salerno District Court discharged the
applicants and the other accused using the formula 'perché il fatto non
sussiste' (because no offence has been committed).
The judgment, in manuscript form, ran to five pages.
21. The Salerno public prosecutor and the principal public prosecutor
at the Salerno Court of Appeal lodged an appeal against the judgment
of the District Court but subsequently withdrew it.
The judgment became final on 23 November 1987."
PROCEEDINGS BEFORE THE COMMISSION
11. In their applications of 11 and 12 March 1988 to the Commission
(nos. 13978/88, 14236/88 and 14237/88) Mrs Anna and Mrs Maria Adiletta
and Mr Agovino complained of the length of the proceedings; they relied
on Article 6 para. 1 (art. 6-1) of the Convention.
12. After having ordered the joinder of the applications on
7 October 1988, the Commission declared them admissible on
5 September 1989. In its report of 5 December 1989 (Article 31)
(art. 31), it expressed the unanimous opinion that there had been a
violation of Article 6 para. 1 (art. 6-1). The full text of the
Commission's opinion is reproduced as an annex to this judgment*.
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* Note by the Registrar: For practical reasons this annex will appear
only with the printed version of the judgment (volume 197-E of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
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FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT
13. At the hearing on 1 October 1990 the Government confirmed the
submission put forward in their memorial, in which they requested the
Court to hold "that there has been no violation of the Convention in
the present case".
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1)
14. The applicants claimed that their case had not been examined
within a "reasonable time" as required under Article 6 para. 1
(art. 6-1) of the Convention, according to which:
"In the determination ... of any criminal charge against him, everyone
is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ... "
The Government disputed this view, whereas the Commission
subscribed thereto.
15. The period to be taken into consideration began on
23 June 1974, when the applicants received notice of the criminal
proceedings; it ended on 23 November 1987, the date on which the
Salerno District Court's judgment became final.
16. The participants in the proceedings presented argument as to
the way in which the various criteria employed by the Court in this
context - such as the degree of complexity of the case, the conduct of
the applicant and that of the competent authorities - should apply in
the present case.
17. Article 6 para. 1 (art. 6-1) of the Convention guarantees to
everyone who is the object of criminal proceedings the right to a final
decision within a reasonable time on the charge against him.
The Court points out that, under its case-law on the subject, the
reasonableness of the length of proceedings is to be assessed in the
light of the particular circumstances of the case. In this instance
the circumstances call for an overall assessment (see, mutatis
mutandis, the Obermeier judgment of 28 June 1990, Series A no. 179,
p. 23, para. 72).
The case was of some complexity, in particular at the stage of the
preliminary investigation. In addition, the applicants themselves
caused delays by several requests for the hearing to be adjourned.
Nevertheless, the Court cannot regard as "reasonable" in the instant
case a lapse of time of thirteen years and five months. The
proceedings were characterised by lengthy periods of inactivity. In
particular there was a delay of five years (from January 1975 to
January 1980) between the placing of the case in the hands of the
investigating judge and the questioning of the accused and witnesses,
for which no explanation has been given by the Government.
On 24 September 1984 the case was again referred to the investigating
judge and a further period of one year and nine months elapsed before
the applicants were once more committed for trial.
There has therefore been a violation of Article 6 para. 1 (art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
18. Under Article 50 (art. 50),
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
- completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
A. Damage
19. Mrs Anna and Mrs Maria Adiletta and Mr Agovino each claimed
compensation of 200,000,000 Italian lire for pecuniary and
non-pecuniary damage. They cited the difficulties which they had
encountered as a result of the length of the proceedings.
20. In the Government's view there was no evidence of pecuniary
damage. At the most it would, in their opinion, be appropriate, if a
violation were to be found, to award a modest sum for non-pecuniary
damage.
21. On the first point the Court agrees with the Government. On
the second, it shares the Commission's opinion that the applicants'
claims are excessive. Making an assessment on an equitable basis, it
awards each of them 15,000,000 lire for non-pecuniary damage.
B. Costs and expenses
22. The applicants sought the reimbursement of costs and expenses
incurred in the Strasbourg proceedings.
Their claims were as follows:
(a) for Mrs Maria Adiletta, 10,800,000 lire for lawyer's fees and
expenses relating to the procedure before the Court;
(b) for Mrs Anna Adiletta, 13,200,000 lire for lawyer's fees before
the Commission and the Court and 2,150,000 lire for expenses;
(c) for Mr Agovino, 7,800,000 lire for lawyer's fees and expenses
relating to the procedure before the Court;
together with value-added tax and the contribution payable to the
National Sickness and Pensions Fund.
23. Having regard to the information available to it, the
observations submitted and its case-law in this field, the Court,
making an assessment on an equitable basis, awards each of the
applicants 4,000,000 lire in respect of costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 para. 1
(art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to each of the three
applicants 15,000,000 (fifteen million) Italian lire for non-pecuniary
damage and 4,000,000 (four million) lire for costs and expenses;
3. Dismisses the remainder of the claims for just satisfaction.
Done in English and in French, and delivered at a public hearing in the
Human Rights Building, Strasbourg, on 19 February 1991.
Signed: Rolv RYSSDAL
President
Signed: Marc-André EISSEN
Registrar
Full & Egal Universal Law Academy