In the Ficara 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 11/1990/202/262. 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 Article 11 of Protocol No. 8 (P8-11), 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. 12176/86) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Antonino Ficara, on 17 May 1986.
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 applicant stated that he
wished to take part in the proceedings and designated the lawyer
who would represent him (Rule 30). On 13 March 1990 the President
of the Court granted him leave to use the Italian language (Rule 27
para. 3) and, 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), Alimena, Frau, 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), Alimena (9/1990/200/260), Frau
(10/1990/201/261), 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 applicant's memorial on
2 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 applicant
Mr M. Miccoli, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives.
On 25 October 1990 the registry received the Government's
observations on the applicant's claims for just satisfaction.
AS TO THE FACTS
9. Mr Antonino Ficara, an Italian national, resides at Archi di
Reggio di Calabria. The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 14-24 of its report, see paragraph 12 below):
"14. Having lodged a complaint with the public prosecutor's
office on 28 December 1978, the applicant was prosecuted for
maliciously accusing (Article 368 of the Criminal Code) the
following persons, knowing them to be innocent: B. C. of
attempted aggravated fraud, the Reggio Calabria labour
inspector of forging an official document, and the legal
representative of the Reggio Calabria office of the INPS
(National Pensions Institute) of defamation.
15. On 27 June 1979 the Reggio Calabria public prosecutor
notified the applicant that a preliminary investigation had
been opened against him and invited him to appoint a defence
counsel.
A summons was issued on 8 April 1980.
The applicant was examined on 30 April 1980 by the
Reggio Calabria investigating judge who also examined three
witnesses on that day.
16. The investigation stage was concluded on 18 November
1980, when the applicant was committed for trial.
17. The summons to appear, dated 5 December 1981, stated
that the case would be tried on 3 February 1982. This hearing
was postponed, with the parties' consent.
18. On 26 April 1982, the applicant's defence counsel
requested a further postponement of the hearing, having first
asked the court to obtain a number of documents - held by the
INPS - which it had not yet been possible to have produced.
19. On 11 October 1982, no hearing could take place
because it had emerged that one of the judges had signed the
order committing the applicant for trial and there was,
consequently, incompatibility within the meaning of Article 61
of the Code of Criminal Procedure.
20. On 26 January 1983, there was again no hearing. In the
first place, the defendant's counsel had sent word that he
could not attend since he was involved in proceedings in the
Criminal Court on the same day. Secondly, all hearings were
suspended on that day as a mark of respect following the
murder of a judge.
21. On 20 April 1983, counsel for the applicant requested
an adjournment so that he could study the documents received
by the court in the meantime. A hearing was then arranged for
27 May 1983.
22. In a judgment given on 27 May 1983 and filed in the
registry on 10 June 1983, the Reggio Calabria District Court
sentenced the applicant to sixteen months' imprisonment
(sentence amnestied) and ordered him to pay the complainant's
damages.
23. The applicant appealed against this judgment. The
Court of Appeal received the file on 31 October 1983.
By summons dated 14 October 1988, the applicant was
required to appear at a hearing arranged for 13 December 1988.
24. The hearing of 13 December was postponed, with the
parties' consent, until 25 January 1989. On that date, the
Reggio Calabria Court of Appeal acquitted the applicant. This
judgment was filed in the court registry on 15 February 1989."
10. The time-limit for an appeal on a point of law by the
prosecuting authorities expired on 28 January 1989 (Article 199 of
the Code of Criminal Procedure).
PROCEEDINGS BEFORE THE COMMISSION
11. In his application of 17 May 1986 to the Commission
(no. 12176/86) Mr Ficara complained of the length of the
proceedings; he relied on Article 6 para. 1 (art. 6-1) 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 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 196-A
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 applicant claimed that his 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
27 June 1979, the date of the judicial notification to the
applicant. It ended on 28 January 1989 (see paragraph 10 above).
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 applicant undoubtedly contributed to the delays of which
he complained by making three requests for the hearing in the
Reggio Calabria District Court to be adjourned. On the other hand,
the case was not a complex one and there were long periods of
stagnation in the proceedings, in particular the period of almost
five years between October 1983 and October 1988 when the case was
before the Reggio Calabria Court of Appeal. The Government accepted
that the Court of Appeal was unable to deal with its heavy
caseload. It follows that the Court cannot regard as "reasonable"
in the instant case a lapse of time of nine years and seven months.
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. Mr Ficara claimed compensation in a total amount of
300,000,000 Italian lire in respect of pecuniary and non-pecuniary
damage. He cited loss of earnings and the damage to his reputation
resulting from the length of the proceedings instituted against
him.
20. The Court notes, in agreement with the Commission and the
Government, that the evidence does not show the existence of a
causal connection between the violation of Article 6 para. 1
(art. 6-1) and the alleged pecuniary damage. However, the applicant
must have suffered a degree of non-pecuniary damage for which the
Court, making an assessment on an equitable basis, awards him
10,000,000 lire.
B. Costs and expenses
21. The applicant claimed a total of 5,700,000 lire, less the
amount paid as legal aid, for his lawyer's fees and the expenses
incurred by him in the proceedings before the Convention organs.
22. 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 2,000,000
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 para. 1
(art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to Mr Ficara
10,000,000 (ten million) Italian lire for non-pecuniary damage
and 2,000,000 (two 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