In the Triggiani 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 17/1990/208/268. 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. 13509/88) against the Italian Republic lodged with the
Commission under Article 25 (art. 25) by an Italian national, Mr
Emanuele Triggiani, on 19 November 1987.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) art. 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 29 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, Ferraro,
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), Ferraro
(16/1990/207/267), 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 on 17
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 T. Castagnino, 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 Emanuele Triggiani, an Italian national, resides in Rome.
When the criminal proceedings were instituted against him, he was
a bank employee. The facts established by the Commission pursuant
to Article 31 § 1 (art. 31-1) of the Convention are as follows
(paragraphs 12-23 of its report, see paragraph 12 below):
"12. The applicant was arrested on 18 August 1975, under an
arrest warrant dated 14 August 1975, issued by the Rome
investigating judge, on charges of fraud, forgery and use of
forged documents, and criminal association.
13. The applicant, a bank employee, was charged with having
obtained a number of chequebooks on the account of a client of
the bank in which he worked, and of passing them on to
accomplices who had forged the client's signature and thus been
able to pay very large sums of money into accounts opened under
a false name.
The charges brought against the applicant were based on
a police report drawn up following the inquiry made as a result
of the complaint lodged by the account-holder. This report was
forwarded to the Rome public prosecutor's office on 8 March
1975.
14. After his arrest, the applicant was examined on two
occasions by the Rome investigating judge, on 19 August and
18 October 1975. No other investigation procedure was carried
out as regards the applicant. However, as the case involved
several other defendants, the file records a number of
procedures concerning the legal position of these persons.
15. The applicant was held in custody until the end of the
maximum period for detention on remand. His release was
ordered on 18 February 1976.
16. The applicant was committed for trial on 12 May 1978.
On 14 July 1978 the Rome District Court summoned him to appear
on 22 January 1979. The trial, which involved twelve
defendants, lasted from 22 January 1979 to 30 September 1981.
Fourteen hearings had to be scheduled (22 January 1979, 26
March 1979, 9 April 1979, 30 June 1979, 24 November 1979, 13
February 1980, 7 May 1980, 9 July 1980, 26 November 1980, 25
March 1981, 3 June 1981, 17 June 1981, 3 July 1981, 30
September 1981). However, not all of these hearings were given
over to examination of the case: seven hearings were adjourned
for reasons connected with the internal organisation of the
court. At the hearing on 9 April 1979 the court decided to
postpone the hearing to 30 June 1979 with the parties' consent
'bearing in mind the need to deal with a number of other cases
concerning defendants now in custody and to enable the parties
to deal with the case properly ...' . On 30 June 1979 the
parties requested that argument be taken without interruption.
As this turned out to be impossible, the court adjourned the
hearing to 24 November 1979 and requested that the registry set
no further cases down for that day.
17. On 24 November 1979, the hearing could not take place
as the composition of the court had changed. The same occurred
on 7 May 1980. On 9 July 1980 the court of its own motion
postponed the hearing to 26 November 1980. On 25 March 1981,
as priority had to be given to hearings involving defendants
held in custody, the court postponed the hearing again; the
hearing on 3 July 1981 was also postponed.
Two hearings were adjourned owing to protest action
either by judges or by lawyers.
The hearing of 17 June 1981 was adjourned at the
request of counsel for one of the accused.
18. In all, those hearings actually given over to
examination of the case were the following: 22 January 1979,
lasting 1 hour and 45 minutes; 26 March 1979, lasting 30
minutes; 3 June 1981, lasting 1 hour and 5 minutes; and lastly,
30 September 1981 which began at 3 p.m and ended at 9.30 p.m,
after deliberations on the judgment in chambers.
19. On 30 September 1981 the applicant was acquitted for
lack of evidence. The judgment was filed with the court
registry on 11 November 1981.
20. The applicant appealed against the decision, believing
that he should be totally cleared of suspicion.
On 3 September 1985 he was summoned to appear before
the Rome Court of Appeal at a hearing on 21 October 1985. Only
the last of five hearings successively fixed for consideration
of the case (21 October 1985, 31 January 1986, 31 October 1986,
3 March 1987 and 28 October 1987) actually took place; the
others had to be postponed for various reasons not attributable
to the defendants.
21. By judgment of 28 October 1987, filed with the registry
on an unspecified date, the Rome Court of Appeal declared the
applicant not guilty of the offences with which he had been
charged.
22. In the meantime the applicant, who had been suspended
from his job on 12 September 1978, was dismissed in November
1978.
23. Moreover, the fact that it was impossible for him to
provide for his family, and the suspicions surrounding him,
allegedly drove his wife to seek a divorce. Separation was
pronounced on 27 July 1977."
10. According to the information supplied to the European Court,
the appeal court's judgment of 28 October 1987, which became final
in relation to the applicant on 1 November 1987, was filed with the
registry on 30 May 1988.
In addition, Mr Triggiani instituted proceedings contesting the
validity of his dismissal. On 2 March 1979 the labour court stayed
the proceedings under Article 3 of the Code of Criminal Procedure,
because the decision depended on the outcome of the criminal
proceedings brought against the applicant. It resumed examination
of the case on 15 March 1988. The next hearing was scheduled to be
held on 9 November 1990.
PROCEEDINGS BEFORE THE COMMISSION
11. In his application of 19 November 1987 to the Commission
(no. 13509/88) Mr Triggiani complained of his arrest and the lack
of an effective remedy (Article 5 §§ 1, 2 and 4 of the Convention)
(art. 5-1, art. 5-2, art. 5-4). He also complained 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-B
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
14 August 1975, the date on which the investigating judge ordered
Mr Triggiani's arrest; it ended on 1 November 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 them down and there were lengthy periods involved
in the investigation of the case (14 August 1975 to 12 May 1978),
the trial at first instance (12 May 1978 to 30 September 1981) and
the appeal proceedings (11 November 1981 to 21 October 1985), for
which no adequate explanation has been given by the Government. As
pointed out by the Commission, and not refuted by the Government,
most of the numerous postponements of the trial proceedings at
first instance were due to reasons connected with the internal
organisation of the Rome District Court. It follows that the Court
cannot regard as "reasonable" in the instant case a lapse of time
of more than twelve years and two 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 Triggiani claimed compensation of 150,000,000 Italian lire
for the pecuniary and non-pecuniary damage which he had allegedly
sustained as a result of the length of the proceedings.
20. In view of the length of time for which the applicant was
unjustly deprived of his salary, and the non-pecuniary damage
sustained by him, the Commission considered the amount sought to be
reasonable.
The Government, on the other hand, regarded the applicant's
claims as obviously excessive.
21. The Court accepts that Mr Triggiani clearly suffered pecuniary
and non-pecuniary damage; it awards him 150,000,000 lire under this
head.
B. Costs and expenses
22. The applicant sought the reimbursement of a total of
5,200,000 lire in respect of lawyer's fees and other expenses.
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 Triggiani
150,000,000 (one hundred and fifty million) Italian lire for
pecuniary and non-pecuniary damage and 5,200,000 (five million
two hundred thousand) lire 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