CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 juillet 1997

.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 }                          AS TO THE ADMISSIBILITY OF                           Application No. 30605/96                       by Paolo MONGIARDO                       against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 4 July 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 6 November 1995 by Paolo MONGIARDO against Italy and registered on 25 March 1996 under file No. 30605/96;        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      25 March 1997 and the observations in reply submitted by the      applicant on 28 May 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Italian national born in 1933 and residing in Rome. He is a teacher and used to work as a court expert (graphologist).        The facts of the case, as submitted by the parties, may be summarized as follows.        On 29 March 1988 the Public Prosecutor's Office of Rome issued a warrant of arrest against the applicant on charges of belonging to a mafia-type association, drug trafficking, trafficking works of art and counterfeiting; the applicant was arrested on 31 March 1988, and was kept in isolation for five months in Rome; he was later under house arrest until he was released on 3 July 1989 on the ground of expiry of the time-limit for detention on remand.        He was interrogated by the Public Prosecutor on 14 April and 4 May 1988; he was then interrogated by the Investigating Judge on 25 May 1988.        On 22 June 1988 the Rome Investigating Judge declared the territorial incompetence of the Rome court and sent the file to the Public Prosecutor's Office of Reggio Calabria.        On 16 November 1988 the Presiding Judge of the Rome Court informed the applicant, who was on the List of Experts, that the existence of criminal proceedings against him was clearly in contrast with the requisites for exercising the profession of expert, pursuant to Article 15 of the implementation provisions ("disposizioni di attuazione") of the code of civil procedure; he therefore invited the applicant to submit written observations on the matter within fifteen days or else disciplinary proceedings would be opened against him pursuant to Article 21 of the "disposizioni di attuazione". According to Article 20 of the "disposizioni di attuazione", such procedure can lead to the imposition of the following sanctions: a warning, the suspension from the exercise of the work of expert for up to a year or the striking out of the List.        On 2 March 1989 the applicant was summoned to appear before the disciplinary committee ("committee charged with the keeping of the List of Experts"), on 10 May 1989. He was allegedly suspended de facto from his job of expert.        On 12 July 1989 the applicant was committed for trial before the Reggio Calabria Court. On 24 July 1990 the latter declared its territorial incompetence and sent the case to the Milan Court.        On 27 April 1990 the President of the disciplinary committee summoned the applicant to appear before it on 12 June 1990. By a letter dated 23 November 1990, the applicant was further summoned to appear before the Committee on 11 December 1990.        Four hearings were held on 27 November, 5, 6 and 10 December 1990.        On 10 December 1990, the Milan Court declared its territorial incompetence and sent the case before the Udine Court.        On 4 June 1991 the Udine Court sent the case before the Court of Cassation seeking that the question of the territorial competence be decided.        By a judgment delivered on 5 November and filed with the Registry on 25 November 1991, the Court of Cassation held that the Milan Court was competent to deal with the case. The case was therefore sent to the Milan Court on 7 February 1992.        Despite the requests lodged by the applicant on 15 December 1994 to the Presiding judge of the Milan Court, the Presiding judge of the Milan court of appeal and the Public Prosecutor and on 16 March 1995 to the Presiding judge of the Milan Court, the first hearing was only fixed to 29 January 1997. It was eventually postponed to 13 October 1997.        In the meantime, by a letter dated 26 April 1995, the applicant was summoned to appear before the disciplinary committee at its meeting of 28 June 1995. It was stated that the existence of criminal proceedings against him on very serious charges could be in contrast with the requirement of a "spotless moral conduct" of Article 15 of the "disposizioni di attuazione" for working as a court expert; the applicant was thus invited to submit his observations on this point.        At the meeting of 28 June 1995, the applicant explained that he had repeatedly tried to speed up the trial pending against him before the Milan court, and that another trial which was pending against him before the Rome Magistrate on a charge of receiving stolen goods, would be decided in December 1995.        In its decision of 1 July 1995, the disciplinary committee considered that the existence of both sets of proceedings against the applicant sufficed to justify his suspension from the experts' list for a year as a preventive measure by analogy to Article 70 of the implementation measures ("norme di attuazione") of the code of criminal procedure, according to which any expert in the fields of criminal law can be suspended from the List when and so long as he or she is accused of a fault-based offence liable to arrest.     COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the length of the criminal proceedings instituted against him.   2.    The applicant further complains that he was suspended from his job as court expert on the ground of the mere existence of pending criminal proceedings against him. He invokes Article 6 para. 2 in this respect.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 November 1995 and registered on 25 March 1996.        On 17 January 1997 the Commission decided to communicate the application in relation to the length of the criminal proceedings to the respondent Government.        The Government's written observations were submitted on 25 March 1997. The applicant replied on 28 May 1997.     THE LAW   1.    The applicant complains in the first place about the length of the criminal proceedings instituted against him.        He invokes Article 6 para. 1 (Art. 6-1) of the Convention, according to which:        "In the determination of ... any criminal charge against him,      everybody is entitled to a fair ... hearing within a reasonable      time ..."        The Commission notes that the proceedings at issue started on 31 October 1988 with the applicant's arrest (cf. Eur. Court HR, Wehmhoff v. Germany judgment 27 June 1968, Series A no. 7, p. 26, para. 19) and are currently pending before the Milan Court. These proceedings have therefore lasted almost nine years to date.        The applicant submits that such a length cannot be regarded as reasonable particularly in light of the nature of the accusations brought against him, and underlines that his case has not yet been decided in first instance.        The Government argue that the length of the proceedings can be justified in the light of the extreme complexity of the case and of the workload of the domestic courts involved; they refer to the Neumeister case, where the Court found that the concern for speed cannot dispense the judges from taking every measure likely to throw light on the truth or falsehood of the charges, and maintain that in the present case the overall duration of the proceedings cannot be regarded as being unreasonable.        The Commission considers, in the light of the criteria established by the case-law of the Convention 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 also alleges a violation of Article 6 para. 2 (Art. 6-2) in that he has been suspended from the List of Court Expert without having previously been found guilty according to the law.        Paragraph 2 of Article 6 (Art. 6-2) provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to the law."        The Commission first considers that Article 6 para. 2 (Art. 6-2) is not applicable to the disciplinary proceedings at issue as they do not involve any determination of a "criminal charge" (cf. Eur. Court HR, Le Compte, Van Leuven and De Meyere v. Belgium judgment of 1 October 1980, Series A no. 43, p. 19, paras. 41-43; No. 21257/93, Dec. 27.11.95, unpublished).        However, the Commission recalls its established case-law according to which the presumption of innocence requires that no representative of the State - not only the criminal court determining a criminal charge but also any other authorities of the State (cf. for example No. 17265/90, Dec. 21.10.93, D.R. 75, p. 76) - declare that a person is guilty of having committed an offence before that guilt is established by a court.        The Commission underlines in this respect that the Presiding Judge of the Rome Court as well as the Rome Public Prosecutor were sitting in the disciplinary committee.        The Commission therefore considers that the decision by the disciplinary committee to suspend the applicant from his profession might have given rise to a problem in relation to Article 6 para. 2 (Art. 6-2) of the Convention, in so far as such decision could have adversely affected the applicant's case in the criminal proceedings pending against him (cf., mutatis mutandis, No. 11158/84, Dec. 5.12.85, D.R. 45, p. 263).        The Commission notes however that in the present case the applicant's suspension from the List was clearly imposed on him as a mere protective measure, having regard to the particular nature of the applicant's task as a Court expert. In the Commission's view, it is clear from the foregoing that the disciplinary committee, and in particular the Presiding Judge of the Rome Court and the Public Prosecutor sitting in it did not make any assessment of the applicant's guilt or the probability of the applicant's guilt. Consideration of this complaint therefore discloses no appearance of a violation of the right and freedoms secured by the Convention, in particular Article 6 para. 2 (Art. 6-2) thereof.        It follows that this complaint must be dismissed as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaint related to the length of the      proceedings;        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.        M.F. BUQUICCHIO                               J. LIDDY         Secretary                                  President    to the First Chamber                        of the First Chamber