In the Ferraro 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:
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Notes by the Registrar
* The case is numbered 16/1990/207/267. 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 § 1 and Article 47
(art. 32-1, art. 47) of the Convention. It originated in an
application (no. 13440/87) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Enrico Ferraro, on 26 November 1987.
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 § 1 (art. 6-1).
2. In response to the enquiry made in accordance with Rule 33
§ 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 § 3).
3. On 21 February 1990 the President decided that, pursuant to
Rule 21 § 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,
Triggiani, Mori, Colacioppo and Adiletta and Others* should be
heard by the same Chamber.
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* 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), Triggiani
(17/1990/208/268), Mori (18/1990/209/269), Colacioppo
(19/1990/210/270), Adiletta and Others (20/1990/211/271-273)
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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 § 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 § 4) (art. 43).
5. Mr Ryssdal assumed the office of President of the Chamber
(Rule 21 § 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 § 1). In accordance with the order made in
consequence, the Registrar received the applicant's memorial and
his additional observations on 2 and 16 July 1990 respectively 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 1 June 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 G. Mochi, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives, as well as their answers to its questions.
On 25 October the registry received the Government's
observations on the applicant's claims for just satisfaction.
AS TO THE FACTS
9. Mr Enrico Ferraro, an Italian national, resides in Rome.
The facts established by the Commission pursuant to
Article 31 § 1 (art. 31-1) of the Convention are as follows
(paragraphs 14-21 of its report, see paragraph 12 below):
"14. On 3 February 1979 the applicant, who at that time was
an inspector with the Ministry of Transport, was questioned by
the police in the course of an inquiry into irregular
practices allegedly committed in vehicle testing and approval
procedures.
Following this questioning, on 7 February 1979 the
applicant and numerous other people were reported to the
prosecuting authorities.
15. On 8 February 1979 the Rome prosecuting authorities
issued an arrest warrant for forgery and corruption against
the applicant on a charge of falsely certifying that he had
carried out approval tests on a number of vehicles, allegedly
at the request of a certain M. who, in return, had supplied
him with watches imported from Japan to sell off on the
Italian market.
16. The applicant was arrested on an unspecified date and
placed in custody until 13 April 1979, when the investigating
judge granted his application for bail.
On 8 March 1979 the applicant was suspended from his
duties as principal inspector at the Ministry of Transport,
with effect from 8 February 1979.
17. The applicant was first questioned on two occasions,
on 12 and 26 February 1979, by the public prosecutor; he was
then questioned on 6 March 1979 by the investigating judge
after the latter had taken over the investigation, then again
on 26 March 1979. The Rome prosecuting authorities drew up
their final submissions on 31 December 1981. The applicant
was committed for trial on 21 July 1982.
18. The first hearing in the Rome District Court, which
had been scheduled for 2 May 1983, was adjourned to 31 January
1984, owing to irregularities in the notifications. This
second hearing was adjourned to 7 February 1984, owing to the
'precarious' nature of the composition of the court because
one of the court's judges was about to be transferred. The
trial proper did not begin until a hearing on 7 February 1984.
The following hearing, set for 28 May 1984, was adjourned to
3 December 1984. The fact was that the court had learned that
a committal for trial was soon to be pronounced in a second
set of proceedings, which had been brought against the
applicant and others for similar offences, and the court had
deemed it advisable to deal with the two cases together.
19. The second set of proceedings had been opened
following a police report of 12 April 1980 and concerned
testing procedures for cars imported into Italy by a firm
called V. The investigation into this case was being
conducted by the same investigating judge handling the
investigation in the first case. This judge questioned the
applicant on the new charges on 5 June 1980. On 23 February
1984 the prosecuting authorities drew up their final
submissions and the committal for trial was pronounced on 28
October 1984.
20. However, the hearing of 3 December 1984, which had
been scheduled in order to combine the two cases, had to be
adjourned sine die because the court had not yet received the
file concerning the second case.
A hearing was scheduled for 22 April 1987, on which
date the court ordered that the two sets of proceedings be
combined and, at the request of the defendants' lawyers, that
examination of the case be adjourned until 13 May 1987.
On 13 May 1987 the court considered that in view of
the complexity of the case it would be advisable to adjourn
the examination to a hearing on 22 May 1987.
21. The trial hearings took place on 22 May, 27 May and
3 June 1987. At this last hearing the court delivered its
judgment in which it purely and simply acquitted the
applicant.
In the reasons for its judgment the court noted, inter
alia, that the technical and legal complexity of the vehicle
testing procedures had resulted in a number of
misunderstandings during the investigation. The judgment
[was] filed with the registry on 17 June 1987 ... .
[The applicant's] suspension from the civil service
was not revoked until 17 September 1987, following his
acquittal."
10. The judgment became final in relation to the applicant on
3 July 1987, when the time-limit for an appeal by the prosecuting
authorities expired (Article 199 of the Code of Criminal
Procedure).
PROCEEDINGS BEFORE THE COMMISSION
11. In his application of 26 November 1987 to the Commission
(no. 13440/87) Mr Ferraro alleged that his detention on remand had
not been lawful (Article 5 § 1 of the Convention) (art. 5-1) and
that he had had no effective remedy (Article 5 § 4) (art. 5-4). He
also complained of a breach of the principle of the presumption of
innocence (Article 6 § 2) (art. 6-2), of the unfair nature of his
trial and of the length of the proceedings (Article 6 § 1)
(art. 6-1).
12. On 5 September 1989 the Commission declared the application
admissible as regards the last complaint. On 7 October 1988 it had
declared it inadmissible for the rest. 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 § 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-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 § 1 (art. 6-1)
14. The applicant claimed that his case had not been examined
within a "reasonable time" as required under Article 6 § 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
8 February 1979, the date on which the Italian judicial authorities
ordered the applicant's arrest; it ended on 3 July 1987 (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 § 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, § 72).
The proceedings were undoubtedly of some complexity owing to
the nature of the facts to be established but the applicant did
nothing to slow down their progress. The two investigations of the
alleged offences extended over a period of approximately five years
and eight months from 8 February 1979 to 28 October 1984, after
which there was a long period of inactivity in the trial
proceedings up until 22 April 1987. It follows that the Court
cannot regard as "reasonable" in the instant case a lapse of time
of nearly eight years and five months.
There has therefore been a violation of Article 6 § 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 Ferraro claimed compensation of 130,000,000 Italian lire
for pecuniary and non-pecuniary damage. He cited the loss of
earnings resulting from the temporary loss of his employment and
the considerable emotional pressure generated by the length of the
proceedings.
20. The Commission took the view that the applicant should be
awarded a sum equivalent to half the amount claimed.
The Government, for their part, contended that there was no
causal connection between the alleged pecuniary damage and the
violation complained of; in their opinion, at the most it would be
appropriate, if a violation were to be found, to award a modest sum
for non-pecuniary damage.
21. The Court accepts that the failure to conduct proceedings
within a reasonable time prejudiced the applicant in relation to
his employment and caused him a degree of non-pecuniary damage;
making an assessment on an equitable basis, it awards him
60,000,000 lire under this head.
B. Costs and expenses
22. The applicant sought the reimbursement of a total of
6,008,600 lire and 743 French francs in respect of lawyer's fees
and the expenses relating to the proceedings before the Commission
and the Court.
23. Having regard to the information available to it, the
observations submitted and its case-law in this field, the Court
awards him the full amount.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 § 1
(art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to Mr Ferraro
60,000,000 (sixty million) Italian lire for damage and
6,008,600 (six million eight thousand and six hundred) lire
and 743 (seven hundred and forty-three) French francs 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