In the Mori 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 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 18/1990/209/269. 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. 13552/88) against the
Italian Republic lodged with the Commission under Article 25
(art. 25) by an Italian national, Mrs Bruna Mori, 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
she wished to take part in the proceedings and designated the
lawyer who would represent her (Rule 30).
3. On 21 February 1990 the President of the Court 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, Ferraro, Triggiani, 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), 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), Colacioppo
(19/1990/210/270), Adiletta et autres (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 § 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 on 24 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
Mrs W. Viscardini Donà, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives.
On 25 October and 16 November, 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. Mrs Bruna Mori, an Italian national, resides at Genoa.
She is a teacher. The facts established by the Commission
pursuant to Article 31 § 1 (art. 31-1) of the Convention are
as follows (paragraphs 14-22 of its report, see paragraph 11
below):
"14. Proceedings were brought against the applicant
for defamation following a complaint ('querela') lodged
with the Genoa prosecuting authorities on 12 January 1981
by X, a judge at the Regional Administrative Court, in
which he alleged that the applicant had asserted in
insulting terms that he had, out of personal interest,
induced the Administrative Court to deliver a judgment
unfavourable to the applicant.
15. These proceedings were the outcome of a series of
complaints and accusations in which the applicant and X
were the active parties.
In a complaint against X, lodged with the Genoa
public prosecutor on 3 January 1981, the applicant
accused X of intimidating acts towards her.
X was heard by the judicial authorities and, in
turn, lodged a complaint against the applicant for false
accusation and for defamation in respect of other acts.
A single file was opened concerning the
complaints as a whole but no charge was brought against
the parties pending further investigation of the facts.
16. The applicant states that she learned by chance
in May 1982 that proceedings had been instituted against
her.
She was formally notified of the charges against
her on 13 October 1982 on the occasion of her examination
by the Genoa prosecuting authorities, before which she
had appeared voluntarily to this end.
17. The investigation continued. On 9 February 1983, X
applied for an extension of the time-limit fixed for the
citation of witnesses while intimating that he might withdraw
his complaint.
18. On 9 June 1983, the Genoa prosecuting authorities
passed the case file to the Genoa magistrate's court
('pretore').
On 21 May 1986, the applicant appeared once more, of
her own accord, before the Genoa magistrate's court for
examination.
On 23 December 1986, the applicant addressed a letter
to the magistrate's court in which she waived the application
of an amnesty - provided for by an Act of 16 December 1986 -
and called for her discharge or a date to be fixed for a
hearing.
19. On 26 March 1987, the magistrate's court issued a
summons for the applicant to appear at a hearing on 27 April
1987.
The hearing took place in two sessions on 27 and
28 April 1987; at the latter session, the applicant was
acquitted on the grounds of insufficient evidence
('assoluzione per insufficienza di prove'). The grounds of
the judgment were filed with the court registry on 23 May
1987.
20. The applicant appealed against the judgment with a
view to obtaining her unqualified acquittal. The Genoa
prosecuting authorities appealed to secure her conviction. On
21 July 1987, the file was passed to the District Court
sitting in an appellate capacity.
21. On 12 August 1987, the applicant asked for a date to
be fixed for the appeal proceedings, noting that the length of
proceedings would otherwise prevent her from seeing her
innocence established, given that the offence of which she was
accused would become time-barred in June 1988.
However, on the date of submission of the application
(26 November 1987), no date had yet been fixed for the appeal
proceedings. Moreover, the President of the Chamber of the
Appeal Court assigned to decide on the case, wishing to
withdraw from the case, passed the file to the presiding judge
of the Genoa Court so that the latter could decide on the
question of his replacement (Article 63 of the Code of
Criminal Procedure).
22. On 30 March 1988, the Genoa District Court pronounced
the applicant's unqualified acquittal. On 21 April 1988, the
prosecuting authorities appealed to the Court of Cassation.
On 22 September 1988, the Court of Cassation, sitting
in private, decided that the offence was now time-barred."
PROCEEDINGS BEFORE THE COMMISSION
10. In her application of 26 November 1987 to the Commission
(no. 13552/88) Mrs Mori complained of the length of the
proceedings. She relied on Article 6 § 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 § 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-C 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
12. 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)
13. The applicant claimed that her 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.
14. The period to be taken into consideration began on
13 October 1982, the date on which the applicant was formally
notified of the criminal proceedings. It ended on 22
September 1988 with the Court of Cassation's judgment finding
that the offence was time-barred.
15. 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 this case.
16. 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).
In fact it was a very simple case. Moreover, the
applicant's conduct did not give rise to any delay and indeed
she took steps to expedite the proceedings. It follows that
the Court cannot regard as "reasonable" in the instant case a
lapse of time of nearly six years.
There has therefore been a violation of Article 6 § 1
(art. 6-1).
II. APPLICATION OF ARTICLE 50 (art. 50)
17. 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
18. Mrs Mori claimed, without citing any figures,
compensation for pecuniary and non-pecuniary damage.
She referred to the feeling of uncertainty and anxiety which
she had experienced for a long time regarding the outcome and
the repercussions of the proceedings instituted againt her,
and the impossibility of obtaining a final acquittal owing to
the fact that the proceedings were time-barred.
19. The Government contended that there had been no pecuniary
damage. At the most, in their opinion, it would be
appropriate, if a violation were to be found, to award a
modest sum for non-pecuniary damage.
20. The Court accepts that the applicant must have suffered
some non-pecuniary damage on account of the failure to conduct
the proceedings within a reasonable time. Making an
assessment on an equitable basis, it awards her 2,000,000
Italian lire under this head.
B. Costs and expenses
21. In respect of the proceedings before the Commission and
the Court, the applicant sought the reimbursement of 9,300,000
lire for lawyer's fees and 1,630,000 lire for expenses.
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 her
5,000,000 lire under this head.
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 Mrs Mori
2,000,000 (two million) Italian lire for non-pecuniary
damage and 5,000,000 (five 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