The Committee of Ministers, under the terms of Article 54
(art. 54) of the Convention for the Protection of Human Rights
and Fundamental Freedoms (hereinafter referred to as "the
Convention"),
Having regard to the judgment of the European Court of Human
Rights in the Alimena case delivered on 19 February 1991 and
transmitted the same day to the Committee of Ministers;
Recalling that the case originated in an application against
Italy lodged with the European Commission of Human Rights on
8 November 1985 under Article 25 (art. 25) of the Convention by
Mr Bernardino Alimena, an Italian national, who complained of the
length of criminal proceedings and of a violation of the rights
of defence;
Recalling that the case was brought before the Court by the
Commission on 16 February 1990;
Whereas in its judgment of 19 February 1991 the Court
unanimously:
- held that there had been a violation of Article 6,
paragraphs 1 and 3.c (art. 6-1, art. 6-3-c) of the
Convention;
- held that the respondent State was to pay to
Mr Alimena 10 million Italian lire for non-pecuniary damage
and 3 million Italian lire for costs and expenses;
- dismissed the remainder of the claim for just
satisfaction;
Having regard to the Rules adopted by the Committee of
Ministers concerning the application of Article 54 (art. 54) of
the Convention;
Having invited the Government of Italy to inform it of the
measures which had been taken in consequence of the judgment of
19 February 1991, having regard to its obligation under
Article 53 (art. 53) of the Convention to abide by it;
Whereas, during the examination of the case by the Committee
of Ministers, the Government of Italy gave the Committee
information about the measures taken in consequence of the
judgment, which information appears in the appendix to this
resolution;
Having satisfied itself that the Government of Italy has
paid the applicant the sums provided for in the judgment,
Declares, after having taken note of the information
supplied by the Government of Italy, that it has exercised its
functions under Article 54 (art. 54) of the Convention in this
case.
Appendix to Resolution DH(92)29
Information provided by the Government of Italy
during the examination of the Alimena case
by the Committee of Ministers
The new Code of Criminal Procedure, which came into force
on 24 October 1989, abolished the "investigating judge" and
conferred powers of investigation upon the Public Prosecutor, to
whom the criminal police are strictly subordinate. The control
of the lawfulness of the preliminary investigation has been
conferred upon a judge who, without any initiative in the taking
of evidence, may authorise all measures of investigation
interfering with individual freedoms (detention, judicial
supervision, telephone tapping, seizures, etc.) and who decides,
at the end of the preliminary investigation, whether the person
charged should be committed for trial or discharged, or whether
the proceedings should be withdrawn.
It is to be noted that the prosecution has only six months
to institute criminal proceedings. An extension of preliminary
investigations may be granted by the judge for periods not
exceeding six months, provided that the total length of the
investigation is not longer than eighteen months or exceptionally
two years in cases concerning particularly serious offences,
specifically listed, or cases requiring numerous and complex
investigations or measures to be taken abroad.
At the end of the preliminary investigation, when the Public
Prosecutor requests the judge to bring the case before the Court,
the decision taken by the judge at the so-called preliminary
hearing results in the committal for trial and at the same time
in the fixing of a date for the hearing, after the parties and
the competent juridiction have been consulted. The proceedings
before the trial court are adversarial, evidence being taken
orally following the English system of cross examination.
In order to reduce the duration of procedures, the new Code
of Criminal Procedure also set up simplified procedures with a
view either to avoiding hearings before the trial court: abridged
judgments (giudizio abbreviato) or proceedings by decree
(procedimento per decreto); or to avoiding preliminary
hearings: direct judgments (giudizio direttissimo) or immediate
judgments (giudizio immediato). Furthermore, if legal conditions
are met, the person charged and the Public Prosecutor may ask the
competent judge to apply a penalty upon request (applicazione
della pena su richiesta or pattegiamento). This request implies
proposing to the judge of preliminary investigations or to the
trial court the imposition of a given penalty, including a prison
term of up to two years. Since the coming into force of the Code
of Criminal Procedure, 50% of the new cases have been terminated
speedily by application of the procedure of penalty upon request.
Finally, the Italian Court of Cassation made certain
internal reforms with a view to reducing the average length of
the proceedings dealing with criminal appeals. By way of an
example, whereas the criminal appeals pending on 30 June 1987
still numbered around 55 000, at the end of May 1991 they
numbered 14 713; the Court of Cassation, having decided 44 811
appeals in 1990, has caught up on its backlog.
The Italian authorities hope that, after a transitional
period of coexistence of the old and new systems, the
implementation of the new Code of Criminal Procedure will ensure
that in future criminal proceedings will lead to judgments
delivered within a reasonable time within the meaning of
Article 6, paragraph 1 (art. 6-1), of the Convention.
Furthermore, an act dated 17 January 1992 provided for a
budgetary appropriation of 252 000 million Italian lire
(approximately one thousand million French francs) in order to
finance urgent measures in support of information systems and the
structures, means and services of the administration of justice.
The just satisfaction awarded by the Court was paid on
10 July 1991.
Full & Egal Universal Law Academy