In the Maj 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,
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 14/1990/205/265. 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.
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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. 13087/87) against the Italian Republic lodged with
the Commission under Article 25 (art. 25) by an Italian national,
Mr Giuseppe Maj, on 18 July 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 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 2 May 1990 the President
granted him leave to use the Italian language (Rule 27 para. 3).
3. On 21 February 1990 the President of the Court 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,
Girolami, Ferraro, 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), 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)
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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 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 9
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 did not consider it necessary to submit
observations in writing.
6. On 29 August 1990 the Chamber decided to dispense with a
hearing, having found that the conditions for such derogation from
the usual procedure were satisfied (Rules 26 and 38).
7. On 31 August the Commission produced the file on the
proceedings before it, as requested by the Registrar on the
President's instructions.
8. On 3 and 25 October, respectively, the registry received the
observations of the Commission and the Government on the
applicant's claims for just satisfaction.
AS TO THE FACTS
9. Mr Giuseppe Maj, an Italian national, resides in Milan where
he is an engineer. The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 13-17 of its report, see paragraph 11 below):
"13. On 24 December 1981, the car in which the applicant
and two other persons were travelling was stopped and searched
at a border post on the Italian-French frontier. In the car
the police found a hedge-slashing tool of a prohibited type,
2,270,000 lire (about 12,000 FF) and information material
concerning terrorist trials and the conditions of imprisonment
of terrorists.
14. The applicant was charged with carrying weapons
unlawfully, infringing exchange control regulations and
treasonable conspiracy.
15. On 26 December 1981, the proceedings relating to the
weapons offence were referred to the Aosta District Court.
On 28 December 1981, the Aosta public prosecutor ordered the
applicant's arrest for the other offences and sent the file to
the Bergamo public prosecutor's office.
16. A few days after his arrest, on 4 January 1982, the
applicant was provisionally released for lack of sufficient
evidence.
The Bergamo public prosecutor examined the applicant on
4 January 1982.
17. On 21 February 1985, the prosecution applied for
formal proceedings in the case, and the file was sent to the
investigating judge on 22 February 1985. On 9 September 1987,
the latter discharged the applicant, in the following terms:
'... the variety and quantity of the material seized in
the car and in the homes of the accused, their destination
(France) ... the applicant's family connections ... and his
attitude during the proceedings (even disregarding his replies
under questioning, it is enough that [the applicant] refused,
in true 'fighting communist' style, to sign the record) show
without the shadow of a doubt that the three accused are the
waters in which the terrorist fish has for years found a home,
and constitute something akin to its placenta.
As for the specific charge ... no new evidence has been
obtained different from or additional to that adduced by the
prosecution.'
18. ..."
PROCEEDINGS BEFORE THE COMMISSION
10. In his application of 18 July 1987 to the Commission
(no. 13087/87) Mr Maj complained of the length of the proceedings
conducted against him in Bergamo; he relied on Article 6 para. 1
(art. 6-1) of the Convention.
11. 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-D
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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AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)
12. 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.
13. The period to be taken into consideration began on
24 December 1981, the date of the applicant's arrest. It ended, at
the earliest, on 9 September 1987, with the pronouncement that
there was no case to answer and, at the latest, on 12 September
1987, when the time-limit for an appeal by the prosecuting
authorities against that pronouncement expired (Article 199 of the
Code of Criminal Procedure).
14. 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.
15. 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 undoubtedly of some complexity owing to the
nature of the investigations to be carried out, but the applicant
does not appear to have done anything to slow down the progress of
the proceedings and there appears to be no justification for the
very lengthy period which elapsed between the examination of the
applicant by the Bergamo public prosecutor on 4 January 1982 and
his discharge on 9 September 1987. It follows that the Court
cannot regard as "reasonable" in the instant case a lapse of time
of more than five years and eight months.
There has therefore been a violation of Article 6 para. 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
16. 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."
Mr Maj sought, without citing any figures, compensation for
damage and the reimbursement of expenses and fees incurred during
the proceedings before the Convention organs. On the first point
he referred, inter alia, to the protracted uncertainty in which he
claimed to have lived pending the outcome of the criminal
proceedings against him and the harm to his career.
17. The Commission did not formulate any comments, while the
Government expressed the view that at the most it would be
appropriate, if a violation were to be found, to award a modest sum
for non-pecuniary damage.
18. The evidence does not show that the applicant suffered
pecuniary damage deriving from the violation of Article 6 para. 1
(art. 6-1). On the other hand, he must have sustained a degree of
non-pecuniary damage and he incurred costs and expenses. Making an
assessment on an equitable basis, the Court awards him under these
two heads 5,000,000 Italian lire.
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 Maj
5,000,000 (five million) Italian lire for non-pecuniary damage
and for costs and expenses.
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