In the Viezzer 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 12/1990/203/263. 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 o
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. 31-1, art. 47) of the Convention. It
originated in an application (no. 12598/86) against the Italian
Republic lodged with the Commission under Article 25 (art. 25)
by an Italian national, Mr Antonio Viezzer, on 6 November 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).
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, Angelucci, Maj,
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), 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)
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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 and
his claims for just satisfaction on 6 and 11 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 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. Gentiloni Silverj, avvocato, Counsel.
The Court heard addresses by the above-mentioned
representatives, as well as their answers to its questions.
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 Antonio Viezzer, an Italian national, lives in Rome. When
the application was lodged he was a colonel in the Carabinieri
(auxiliary service). The facts established by the Commission
pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as
follows (paragraphs 13-21 of its report, see paragraph 12 below):
"13. After an investigation into the murder of the
journalist C. P., who had published articles implicating a
number of Italian political figures, it became clear that the
information he had obtained came from the archives of the
State Security Services.
14. Suspicions concerning the disclosure of this
information centred in particular on the applicant, who had
served for more than 25 years in the Italian Security Services
and had most recently been Head of the Secretariat of 'D'
office of the 'SID' (Defence Information Department) which had
been disbanded at the time when the application was submitted.
15. On 21 May 1981 the applicant was arrested by order of
the Deputy Public Prosecutor of Rome (under an arrest warrant
which also concerned a second person), on the grounds that,
while serving in the State Security Services, he had obtained
documents classified as secret with a view to political
espionage, and had also divulged information which should have
remained confidential in the domestic and international
political interests of the State (Article 257 of the Criminal
Code).
16. He was questioned on several occasions and denied all
the charges against him; he also lodged a protest against the
wording of the charges.
17. The applicant was granted temporary release for health
reasons, though he has not specified the date on which this
occurred. He states that since 20 June 1981, when he received
an order to appear in court dated 19 June, and until 6
November 1986, when the application to the Commission was
introduced, no investigative measures were taken in his case
apart from when he was questioned by the investigating judge
after presenting himself voluntarily. He also mentions an
opinion by a ballistics expert, submitted to the investigating
judge on 5 December 1984. On 19 December 1984 the
investigating judge decided to delay the deposit of the expert
opinion with the court registry, though under the terms of
Article 320 of the Code of Criminal Procedure this should have
taken place within three days of its submission (to enable the
applicant's lawyer to examine it). The investigating judge
based his decision on Article 304 quater, fifth paragraph, of
the Code of Criminal Procedure, which permits the deposit of
such an opinion to be delayed 'if there are serious reasons
for doing so'. The applicant states that the opinion had
still not been deposited at the date on which the application
was introduced.
18. On 26 June 1989 the investigating judge at the Rome
Court brought entirely new charges against the applicant,
changing both the description of the offences and the date on
which they were alleged to have been committed.
19. On 12 July 1989 the applicant was questioned by the
investigating judge. Following the questioning the
investigating judge once again changed the alleged date of the
offences as it appeared in the summons of 26 June 1989.
20. The applicant also submits that as yet only one of the
charges against him has been investigated, though he has also
been charged on counts of fraud and espionage prior to
19 March 1979, and also of obtaining public documents by false
pretences.
21. By letter of 23 October 1989 the applicant also states
that the public prosecutor in charge of this case is absent on
maternity leave (her second during this investigation) and
that she is not expected to return for at least six months.
It will therefore not be possible for the prosecutor's
submissions to be brought before the court for another year."
10. According to information supplied to the Court by the
Government and the applicant's lawyer the investigation is still
pending.
PROCEEDINGS BEFORE THE COMMISSION
11. In his application of 6 November 1986 to the Commission
(no. 12598/86) Mr Viezzer 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-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 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
21 May 1981 with the applicant's arrest. It has not yet ended.
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 investigation was undoubtedly of some complexity owing to
the nature of the facts to be established, but the applicant did
nothing to slow it down and the Court cannot regard as "reasonable"
in the instant case a lapse of time for the investigation stage
alone which is already more than nine and a half years.
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 Viezzer claimed, without citing any figures, compensation
for damage; he referred to the suffering caused by the length of
the proceedings instituted against him.
20. The Commission took the view that it was appropriate to award
the applicant a substantial sum in respect of non-pecuniary damage.
The Government, on the other hand, considered that, if a
violation were to be found, a modest sum would be sufficient. They
stressed in addition that Mr Viezzer had supplied no precise
information regarding the pecuniary damage alleged.
21. The Court accepts that the applicant clearly suffered
non-pecuniary damage; making an assessment on an equitable basis,
it awards him 25,000,000 Italian lire under this head.
B. Costs and expenses
22. Mr Viezzer also claimed 4,800,400 lire for the expenses and
fees of the lawyer who represented him before 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 para. 1
(art. 6-1) of the Convention;
2. Holds that the respondent State is to pay to Mr Viezzer
25,000,000 (twenty-five million) Italian lire for
non-pecuniary damage and 4,800,400 (four million eight hundred
thousand and four hundred) 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