AS TO THE ADMISSIBILITY OF
Application No. 20358/92
by Nicola SAVOIA
against Italy
The European Commission of Human Rights (First Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 May 1992 by
Nicola SAVOIA against Italy and registered on 23 July 1992 under file
No. 20358/92 ;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 5 May
1995 and the observations in reply submitted by the applicant on
18 July 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Italian national, born in 1943 and residing
in Fasano di Brindisi; he is accountant by profession.
Before the Commission he is represented by Mr. Ascanio Amenduni,
a lawyer practising in Bari.
The facts of the case, as submitted by the parties, may be
summarised as follows.
In November 1987, the applicant filed with the Public
Prosecutor's office of Brindisi a request for a certificate confirming
that no criminal proceedings were pending against him ("certificato dei
carichi pendenti"). The certificate, issued on 17 November, showed that
on 17 January 1986 certain investigations for abuse of power and making
of false statements in a document ("interesse privato in atti d'ufficio
e falso ideologico") had been started against him. The charges related
to acts presumedly committed by the applicant between 1980 and 1981,
at the time when he was a town councillor in Fasano.
As a consequence of the said pending proceedings, the applicant's
request to be admitted to the Register of Auditors was rejected.
In 1988, the applicant was also forced to resign from his
position of auditor in a company, due to his dubious reputation.
By note of 30 October 1989, the Investigating Judge sent the case
back to the Public Prosecutor, the new Code of Criminal Procedure
having meanwhile entered into force.
Pursuant to the Public Prosecutor's request of 25 May 1990, on
26 May 1990 the applicant and ten coaccused were summoned to appear
before the Brindisi Court for the preliminary hearing ("udienza
preliminare"); the applicant was charged with abuse of power and making
of false statements in a document.
The preliminary hearing, originally scheduled for 29 June 1990,
took place on 19 October 1990. By decision on the same day, the
Investigating Judge ("giudice per l'udienza preliminare") dismissed the
charge of abuse of power as time-barred and committed the applicant for
trial on charges of making of false statements in a document.
The trial was fixed for 22 November 1991.
On 12 March 1991, the applicant filed a request for the trial to
be brought forward. By decree of 20 May 1991, the presiding judge of
the Brindisi court fixed the hearing for 4 October 1991; nevertheless,
the trial was eventually postponed to 5 November 1991.
By judgment delivered on the same day, the applicant was
acquitted. The judgment became final on 2 January 1992.
COMPLAINTS
1. The applicant claims that his case has not been examined within
a "reasonable time", as required under Article 6 para. 1 of the
Convention.
2. He further alleges a violation of Article 6 para. 3 a), in that
he was not promptly informed of the opening of preliminary
investigations against him; he alleges that he had knowledge thereof
only several months later, when he applied for a certificate that no
criminal proceedings were pending.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention about the length of the criminal proceedings against him.
Article 6 para. 1 (Art. 6-1), in so far as relevant, provides as
follows:
"In the determination ... of any criminal charge against
him, everyone is entitled to a ... hearing within a
reasonable time by [a] tribunal ..."
The proceedings lasted from 17 January 1986, when preliminary
investigations against the applicant were instituted, and ended on 2
January 1992, when the applicant's acquittal became final; therefore,
the overall length is almost six years.
The Government invoke the difficult situation faced by the
Brindisi Court as a result of the entering into force of the new Code
of Criminal Procedure as well as the lack of sufficient staff and means
to deal with such a situation; in these circumstances, they maintain
that the overall duration of the proceedings cannot be regarded as
being unreasonable.
The applicant objects that the new Code only entered into force
in October 1989, when almost four years had already elapsed since the
commencement of the proceedings against him.
The Commission considers, in the light of the criteria
established by the case-law of the Convention organs on the question
of "reasonable time" (the complexity of the case, the applicant's
conduct and that of the competent authorities), and having regard to
all the information in its possession, that a thorough examination of
this complaint is required, both as to the law and as to the facts.
2. The applicant further complains that he was not promptly informed
of the opening of preliminary investigations, and that he had knowledge
thereof only several months later, when he applied for a certificate
that no criminal proceedings were pending. He alleges a violation of
Article 6 para. 3 (a) (Art. 6-3-a) of the Convention.
It is true that, according to this provision:
"Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him."
However, the Commission notes that the charge of abuse of power
brought against the applicant was dismissed as time-barred by decision
of the Investigating Judge of 19 October 1991, and that the applicant
was acquitted of the charge of making of false statements in a document
by judgment of the Brindisi Court dated 5 November 1991 which became
final on 2 January 1992.
The Commission recalls its constant case-law to the effect that
an acquitted defendant cannot claim to be a victim of violations of the
Convention which allegedly took place in the course of the proceedings
as a result of which he was acquitted (cf. No. 8083/77, dec. 13.3.80,
D.R. 19 p. 223).
The Commission further notes that the applicant was in fact
promptly informed of the pending criminal investigations, including the
nature and cause of the accusation against him, in reply to his request
of November 1987.
It follows that the applicant cannot claim to be a "victim"
within the meaning of Article 25 (Art. 25) of a violation of the above
provision. Therefore, the application is incompatible ratione personae
with the provisions of the Convention in accordance with Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE the complaint related to the length of the
criminal proceedings, without prejudging the merits of the case;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy