In the Alimena case*,
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:
_______________
Notes by the Registrar
* The case is numbered 9/1990/200/260. 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 an
application (no. 11910/85) against the Italian Republic lodged
with the Commission under Article 25 (art. 25) by an Italian national,
Mr Bernardino Alimena, on 8 November 1985.
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 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of the Rules of Court, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30). On 30 March 1990 the President of the Court
granted him leave to use the Italian language (Rule 27 para. 3) and
subsequently, on 24 September 1990, accorded him legal aid (Rule 4 of
the Addendum to the Rules of Court).
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), Frau,
Ficara, Viezzer, Angelucci, Maj, Girolami, Ferraro, Triggiani, Mori,
Colacioppo and Adiletta and Others* 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), 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), Adiletta and Others (20/1990/211/271-273)
_______________
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 applicant's lawyer on the need for a written
procedure (Rule 37 para. 1). In accordance with the order made in
consequence, the Registrar received the Government's memorial on
31 July 1990. 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. In the meantime, on 25 June, the applicant had communicated to
the Registrar his claims for just satisfaction under Article 50
(art. 50) of the Convention (Rule 50).
7. 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).
8. On 31 August 1990 the Commission produced the file on the
proceedings before it, as requested by the Registrar on the President's
instructions.
9. 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 applicant
Mr A. Sinagra, avvocato, Counsel.
The Court heard addresses by the above-mentioned representatives.
On 25 October and 16 November 1990, respectively, the registry received
the observations of the Government and the Commission on the
applicant's claims for just satisfaction.
AS TO THE FACTS
10. Mr Bernardino Alimena, an Italian national, resides at
Belvedere Marittimo (Cosenza) where he practises as a lawyer. The
facts established by the Commission pursuant to Article 31 para. 1
(art. 31-1) of the Convention are as follows (paragraphs 14-25 of its
report, see paragraph 12 below):
"14. On 8 February 1978, the applicant was charged with contempt of
court during a hearing (Article 343 of the Code of Criminal Procedure,
CCP). He was alleged to have said to the judge, who had decided in his
absence on a case in which he was involved as counsel, even though he
had duly advised the court that he would be late: 'Such conduct is
arbitrary and improper' and, at the same time, to have thrown the file
onto the judge's desk.
15. The judge concerned immediately ordered the arrest of the applicant
and started summary proceedings for contempt. The prosecuting
authorities requested that the custodial order be discharged and that
the applicant be acquitted on the ground that his behaviour did not
constitute an offence. The applicant's lawyer pleaded that the court
had no jurisdiction within the meaning of Article 60 of the CCP (which
was subsequently amended by Law no. 879 of 22 December 1980), the first
paragraph of which stipulated:
'If criminal proceedings are opened against a judge or an officer of
the public prosecutor's office or if a judge or such an officer has
been the victim of an offence and if the proceedings are within the
jurisdiction of the judicial organ at which the judge or officer
serves, the Court of Cassation shall transfer the case to another
judicial organ with comparable jurisdiction.'
16. On 20 March 1978, the public prosecutor at Cosenza transmitted the
file to the Attorney General at the Catanzaro Court of Appeal;
on 25 March 1978, the Attorney General at the Catanzaro Court of Appeal
referred the case to the Court of Cassation.
17. By decision of 2 June 1978, the Court of Cassation referred the
case to the Potenza District Court. The file was transmitted to
it on 14 July 1978.
18. The investigation - carried out in accordance with the summary
procedure - was confined to the questioning of the applicant on
19 October 1978 and of the judge concerned on 24 April 1979. A request
by the applicant's counsel of 29 October 1978 that witnesses be heard
was not granted.
On 7 May 1979, the public prosecutor's office requested that the
applicant be summoned to appear in court.
19. On 18 November 1981, the applicant was summoned to appear at a
hearing to be held on 1 February 1982. The defendant failed to appear
and the proceedings went ahead in absentia, but the court had to
adjourn its examination of the case to 22 February 1982 in order to
hear a witness and again to 22 March 1982 for the same reason. On this
last date, at the close of the hearing at which the applicant was
present, the Potenza District Court, after allowing mitigating
circumstances, gave the applicant a suspended sentence of eight months'
imprisonment. It decided that the conviction would not appear in the
applicant's criminal record. The judgment was filed with the court
registry on 29 March 1982.
20. The applicant appealed against the judgment to the Potenza Court
of Appeal. He filed his pleadings on 5 May 1982. The file was
transmitted to the Potenza Court of Appeal on 29 September 1982.
On 1 December 1982, the applicant was summoned to appear
before the Potenza Court of Appeal.
21. A hearing fixed for 3 February 1983 was adjourned as the applicant
had applied for the proceedings at first instance to be set aside on
grounds of nullity.
The case was listed for hearing on 24 March 1983. On this date the
Court of Appeal upheld the judgment. Its decision was filed with the
registry on 11 April 1983.
22. The applicant appealed to the Court of Cassation on 24 March 1983.
He filed his pleadings on 11 May 1983. The file was sent to the Court
of Cassation on 4 June 1983.
On 14 December 1983, the Court of Cassation set aside the judgment
complained of for lack of reasons and referred the case to the Salerno
Court of Appeal. The file reached the Salerno Court of Appeal
on 21 April 1984 and on 25 September 1984 the applicant was
summoned to appear.
23. The Salerno Court of Appeal fixed a hearing for 13 November 1984.
At the hearing it ordered a further hearing and adjourned the
proceedings to 17 January 1985. At this hearing, the Court heard the
parties and the witnesses and then adjourned the hearing to
21 February 1985. On this date, the Court of Appeal acquitted the
applicant on the ground of insufficient evidence. Its decision was
filed with the registry on 5 March 1985. Since he considered that his
acquittal should have been unqualified, the applicant appealed to the
Court of Cassation and filed his pleadings on 17 April 1985.
24. The Court of Cassation fixed the hearing of the appeal for
27 June 1985 and notified the applicant's lawyer of the date thereof
by letter of 15 May 1985.
25. When he went to the Court of Cassation on 27 June 1985, the
applicant's lawyer learned that the Court had examined the appeal the
previous day, without having notified him of the change of date, and
had dismissed it. The decision of 26 June 1985 was filed with the
Court registry on 22 November 1985."
PROCEEDINGS BEFORE THE COMMISSION
11. In his application of 8 November 1985 to the Commission
(no. 11910/85) Mr Alimena complained of the length of the proceedings
and of a violation of the rights of defence. He relied on
Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.
12. On 5 September 1989 the Commission declared the application
admissible. 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 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c). The full text of
the Commission's opinion is reproduced as an annex to this judgment*.
_______________
* Note by the Registrar: For practical reasons this annex will appear
only with the printed version of the judgment (volume 195-D of
Series A of the Publications of the Court), but a copy of the
Commission's report is obtainable from the registry.
_______________
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 PARAS. 1 and 3 (c)
(art. 6-1, art. 6-3-c)
14. The applicant claimed that his case had not been examined
within a "reasonable time"; in addition he complained that the Court
of Cassation had ruled on his appeal in the absence of his lawyer.
He relied on Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the
Convention, according to which:
"1. In the determination ... of any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time by [a]
... tribunal ...
...
3. Everyone charged with a criminal offence has the following minimum
rights:
...
(c) to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require;
..."
The Government disputed this view, whereas the Commission
subscribed thereto.
A. Article 6 para. 1 (art. 6-1)
15. As regards the contested criminal proceedings, the period to
be taken into consideration began on 8 February 1978 when Mr Alimena
was charged and arrested during a hearing. It ended on 27 June 1985
when he learnt that the Court of Cassation had, on the previous day and
in his absence, dismissed his appeal (see, amongst various authorities
and mutatis mutandis, the Baggetta judgment of 25 June 1987, Series A
no. 119, p. 32, para. 20).
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).
In fact the case was a very simple one. Moreover the applicant's
conduct gave rise to hardly any delay. There were, however, long
periods of inactivity in the proceedings which the applicant alleged
were due to faults inherent in the legal and court system in Italy and
for which no satisfactory explanation was given by the Government.
It follows that the Court cannot regard as "reasonable" in the instant
case a lapse of time of more than seven years and four months.
There has therefore been a violation of Article 6 para. 1 (art. 6-1).
B. Article 6 para. 3 (c) (art. 6-3-c)
18. Mr Alimena complained that the Court of Cassation dismissed his
appeal after having held a hearing in the absence of his lawyer; the
oral proceedings which had been set down for 27 June 1985 took place
a day earlier without the lawyer concerned receiving any prior
notification.
19. The Government considered that the applicant did not suffer any
damage as a result since his second appeal, which was identical to the
first - lodged on 24 March 1983 -, had no prospects of success.
20. The Court notes in the first place that a violation of the
Convention is conceivable even where no damage arises (see, inter alia,
the Artico judgment of 13 May 1980, Series A no. 37, p. 18, para. 35).
It observes further that the competent Italian authorities were under
a duty to take steps to ensure that the applicant enjoyed effectively
the right to which they had recognised he was entitled, namely the
possibility of being represented by a lawyer at the examination of his
appeal (ibid., p. 18, para. 36). They in fact deprived him of legal
assistance which could have helped him in his attempt to secure an
unqualified acquittal.
Accordingly, there has been a violation of Article 6 para. 3 (c)
(art. 6-3-c).
II. APPLICATION OF ARTICLE 50 (art. 50)
21. 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
22. Mr Alimena claimed compensation of 70,000,000 Italian lire for
pecuniary damage and at least 100,000,000 lire for non-pecuniary
damage. He cited the harmful consequences of the length of the
proceedings on his life and on his career as a lawyer.
23. There is no evidence - as the Commission and Government
correctly pointed out - that he suffered pecuniary damage as a result
of the failure to conduct the proceedings within a reasonable time.
He must nevertheless have suffered a degree of stress which calls for
financial reparation despite the fact that the proceedings resulted in
an acquittal - which was in any case pronounced only on the grounds of
insufficient evidence. The Court considers it equitable to award him
10,000,000 lire under this head. As to the impugned infringement of
the rights of the defence, on the other hand, the finding of a
violation of Article 6 para. 3 (c) (art. 6-3-c) constitutes just
satisfaction in this instance.
B. Costs and expenses
24. The applicant claimed a total of 29,000,000 lire for
lawyers' fees and expenses incurred in the national courts and then
before the Convention organs.
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 him 3,000,000 lire for such
of his costs and expenses as are not covered by legal aid.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 paras. 1
and 3 (c) (art. 6-1, art. 6-3-c) of the Convention;
2. Holds that the respondent State is to pay to Mr Alimena
10,000,000 (ten million) Italian lire for non-pecuniary damage and
3,000,000 (three million) lire for costs and expenses;
3. Dismisses the remainder of the claim 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