CEDH · CASELAW;REPORTS;ENG — 4 septembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          EUROPEAN COMMISSION OF HUMAN RIGHTS                                  FIRST CHAMBER                              Application No. 21068/92                                        A.M.                                       against                                        Italy                              REPORT OF THE COMMISSION                          (adopted on 4 September 1996)                                  TABLE OF CONTENTS                                                                         Page   I.     INTRODUCTION       (paras. 1-5). . . . . . . . . . . . . . . . . . . . . . . . . . . .1     II.    ESTABLISHMENT OF THE FACTS       (paras. 6-23) . . . . . . . . . . . . . . . . . . . . . . . . . . .2     III.   OPINION OF THE COMMISSION       (paras. 24-35). . . . . . . . . . . . . . . . . . . . . . . . . . .4         A.     Complaint declared admissible             (para. 24). . . . . . . . . . . . . . . . . . . . . . . . . .4         B.     Point at issue             (para. 25). . . . . . . . . . . . . . . . . . . . . . . . . .4         C.     As regards Article 6 para. 1 of the Convention             (paras. 26-34). . . . . . . . . . . . . . . . . . . . . . . .4               CONCLUSION             (para. 35). . . . . . . . . . . . . . . . . . . . . . . . . .5     APPENDIX : DECISION OF THE COMMISSION AS TO THE ADMISSIBILITY            OF THE APPLICATION . . . . . . . . . . . . . . . . . . . . . .6     I.     INTRODUCTION   1.     The present Report concerns Application No. 21068/92 introduced on 2 September 1992 against Italy and registered on 15 December 1992.         The applicant is an Italian national born in 1946 and currently detained in Pianosa.         The respondent Government were represented first by Mr. Luigi Ferrari Bravo and then Mr. Umberto Leanza, Heads of the Diplomatic Legal Service, Ministry of Foreign Affairs.   2.     The application was communicated to the Government on 12 October 1994. Following an exchange of written observations, the complaint relating to the length of proceedings (Article 6 para. 1 of the Convention) was declared admissible on 17 January 1996; the remainder of the application was declared inadmissible. The decision on admissibility is appended to this Report.   3.     Having noted that there is no basis upon which a friendly settlement within the meaning of Article 28 para. 1 (b) of the Convention can be secured, the Commission (First Chamber), after deliberating, adopted this Report on 4 September 1996 in accordance with Article 31 para. 1 of the Convention, the following members being present:         Mrs.   J. LIDDY, President       MM.    M.P. PELLONPÄÄ             E. BUSUTTIL             A. WEITZEL             C.L. ROZAKIS             G.B. REFFI             B. CONFORTI             N. BRATZA             I. BÉKÉS             G. RESS             A. PERENIC             C. BÎRSAN             K. HERNDL   4.     In this Report the Commission states its opinion as to whether the facts found disclose a violation of the Convention by Italy.   5.     The text of the Report is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   II.    ESTABLISHMENT OF THE FACTS   6.     On 12 January 1976 the applicant and other coaccused were taken into police custody ("stato di fermo"), under suspicion of kidnapping, theft, illegal possession of firearms and other crimes related thereto. The investigation concerned altogether 23 persons.   7.     The Public Prosecutor Office of Marsala issued a warrant of arrest ("ordine di cattura") against the applicant, who was subsequently detained on remand.   8.     The accusation brought against the applicant and the coaccused was mainly based on the testimony of two witnesses, F.M. and V.P.   9.     In January and February 1976, F.M. received various anonymous intimidating letters. He and his family were threatened. On 9 February 1976, he asked the Marsala Public Prosecutor for protection.   10.    On 2 February 1977, F.M. was examined by the investigating judge and confronted with one of the applicant's coaccused. F.M. identified the applicant from a telefax reproducing a photograph of him taken for an electoral campaign. The applicant refused to undergo an identification parade ("ricognizione personale") in the presence of F.M.   11.    By decision of 2 December 1977, the Marsala Investigating Judge closed preliminary investigations, dismissed the case against certain coaccused and committed the applicant and four coaccused for trial before the Marsala Court.   12.    F.M. could not be summoned to appear as a witness during the trial, as he had fled to Venezuela.   13.    By judgment of 9 June 1978, the Marsala Court acquitted the applicant for not having committed the crime ("per non avere commesso il fatto"), and released him.   14.    On the Public Prosecutor's appeal against the applicant's acquittal from all charges, by decision of 14 March 1979 the Palermo Court of Appeal decided to reopen the investigations ("rinnovazione del dibattimento") in order to hear a witness, G.C., and to have knowledge of the outcome of other criminal proceedings pending against certain of the applicant's presumed accomplices.   15.    By a decision of 20 June 1979, the Court of Appeal decided in particular to await the outcome of a specific trial. The latter proceedings terminated on 4 March 1983.   16.    At the hearing of 21 March 1983, the accused were examined by the court.   17.    The witness G.C. was heard on 2 May 1983.   18.    By judgment of 1 June 1983, the Court of Appeal, after completing the investigation, convicted one of the applicant's coaccused and acquitted the applicant and the other coaccused for lack of evidence ("per insufficienza di prove"). One of the applicant's coaccused was also found guilty of having threatened F.M., thus causing him to flee abroad.   19.    Both the applicant and the Public Prosecutor lodged an appeal on points of law against this judgment.   20.    By a judgment of 1 February 1985, the Court of Cassation dismissed the applicant's appeal and upheld that of the Prosecutor. In particular, the Court held that there were not enough grounds to differentiate the position of the applicant from that of the convicted coaccused and therefore to acquit him. The proceedings were therefore referred back to another Chamber of the Court of Appeal of Palermo, with detailed factual arguments of the Court of Cassation to be taken into consideration.   21.    By judgment of 7 May 1987, after reexamining all the evidence gathered in the course of the previous proceedings, the Court of Appeal found the applicant guilty of all charges, and sentenced him to 15 years' imprisonment.   22.    On the applicant's appeal on points of law, the Court of Cassation quashed this judgement on 10 April 1990 for lack of reasons ("difetto di motivazione"), and referred the case back to another Chamber of the Court of Appeal of Palermo.   23.    In June 1990 the applicant absconded in connection with another set of criminal proceedings, meanwhile instituted against him.     III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   24.    The Commission has declared admissible the applicant's complaint that his case was not heard within a reasonable time.   B.     Point at issue   25.    The only point at issue is whether the length of the proceedings complained of exceeded the "reasonable time" requirement referred to in Article 6 para. 1 (Art. 6-1) of the Convention.   C.     As regards Article 6 para. 1 (Art. 6-1) of the Convention   26.    The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention 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 ..."   27.    The proceedings in question concerned the determination of the charges of kidnapping, theft, illegal possession of firearms and other crimes related thereto, brought against the applicant. The proceedings accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of the Convention.   28.    These proceedings, which began on 12 January 1976 when the applicant was arrested (see Eur. Court HR, Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 26, para. 19) and ended in June 1990 when the applicant absconded (see No. 7438/76, Ventura v. Italy, Report Comm. 15 December 1980, D.R. 23 pp. 59-60 para. 197), lasted fourteen years and approximately five months.   29.    The Commission recalls that the reasonableness of proceedings must be assessed in the light of the particular circumstances of the case and with the help of the following criteria: the complexity of the case, the applicant's conduct and the conduct of the authorities dealing with the case (see Eur. Court HR, Kemmache v. France judgment of 27 November 1991, Series A no. 218, p. 27, para. 60).   30.    According to the Government, the length of the period in question is due to the complexity of the case and the number of coaccused (23). The applicant objects.   31.    The Commission agrees with the Government that the case was rather complex, particularly because of the number of coaccused. However, the Commission considers that the complexity of the case is not sufficient to justify in itself a length of over fourteen years.   32.    The Commission observes that the applicant's case was before the Marsala Court once, before the Palermo Court of Appeal three times and before the Court of Cassation twice. It recalls however that the competent authorities bear primary responsibility for ensuring the speedy determination of proceedings, even when the applicant uses all procedural steps available under domestic law (cf. No. 9132/80, dec. 12.12.83, D.R. 41 p.13). The Commission has considered the conduct of the competent authorities in light of these criteria and the submissions of the parties, and finds that the following delays, which are attributable to the competent authorities are not convincingly explained by the Government.         The Commission notes a delay of almost eleven months between the applicant's arrest on 12 January 1976 and the first examination of the witness against him on 2 February 1977 and another delay of almost four years between 20 June 1979, when the Palermo court of appeal decided to await the outcome of certain proceedings and 21 March 1983, when the court of appeal resumed consideration of the applicant's case.   33.    The Commission reaffirms that it is for Contracting States to organise their legal systems so as to enable the courts to comply with the requirements of Article 6 para. 1, (Art. 6-1) including that of a trial within a "reasonable time" (cf. Eur. Court HR, Baggetta v. Italy judgment of 25 June 1987, Series A no. 119-B, p. 32, para. 23).     34.    In the light of the criteria established by case-law and having regard to the circumstances of the present case, the Commission considers that the length of the proceedings at issue, being over fourteen years, was excessive and failed to meet the "reasonable time" referred to in Article 6 para. 1 (Art. 6-1) of the Convention.         CONCLUSION   35.    The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.       M.F. BUQUICCHIO                                      J. LIDDY      Secretary                                         President to the First Chamber                             of the First Chamber