CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 juillet 1998

.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. 33454/96                     by Marino ALBE'                     against Italy        The European Commission of Human Rights (First Chamber) sitting in private on 1 July 1998, the following members being present:             MM.   M.P. PELLONPÄÄ, President                N. BRATZA                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS           Mrs. J. LIDDY           MM.   L. LOUCAIDES                B. MARXER                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 18 June 1996 by Marino ALBE' against Italy and registered on 16 October 1996 under file No. 33454/96;        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      1 April 1998 and the observations in reply submitted by the      applicant on 21 April 1998;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is an Italian national born in 1950 and currently residing in Porto Mantovano (Mantova). Before the Commission, he is represented by Mr. Marco Della Luna, a lawyer practising in Mantova.        The facts of the case, as submitted by the parties, may be summarised as follows.        In 1986, criminal proceedings were instituted against the applicant by the Mantova Public Prosecutor's Office.        On 15 March 1989, the Mantova investigating judge summoned the applicant to appear before the Mantova District Court on charges of fraud, misappropriation and bankruptcy. On 15 March 1990, the applicant requested that some witnesses be examined. In an order delivered the same day, the District Court rejected the applicant's request, observing that such examinations would have been of no relevance.        In a judgment delivered on 13 June 1990 and filed with the registry on 27 June 1990, the District Court convicted the applicant of bankruptcy and sentenced him to eight months' imprisonment. It held that the charges of fraud and misappropriation had to be dismissed because of an amnesty.        On 14 June 1990, the applicant lodged an appeal before the Brescia Court of Appeal. The date of the hearing was fixed on 14 March 1996.        In a judgment delivered the same day and filed with the registry on 22 March 1996, the Brescia Court of Appeal acquitted the applicant in respect of the charge of fraud and confirmed the remainder of the first instance decision.        On 15 March 1996 the applicant appealed on points of law against this judgment, alleging, inter alia, a violation of Article 6 of the Convention.        On 3 February 1997, the applicant received from the registry of the Brescia Court of Appeal an order to pay court costs, informing him that on 12 November 1996 the Court of Cassation had declared his appeal inadmissible. The payment order furthermore indicated that by a judgment of 14 March 1996 the Brescia Court of Appeal had acquitted him in respect of the charge of bankruptcy.        On 14 March 1997, the applicant addressed a petition to the Court of Cassation and to the Brescia Court of Appeal, seeking the withdrawal of the decision of 12 November 1996. He observed in particular that the Brescia Court of Appeal had not acquitted him, but had confirmed his conviction of bankruptcy and argued that the Court of Cassation's decision was based on a misinterpretation of the operative part of the judgment against which he had appealed on points of law.        Enclosed with their observations, the Government produced the order of 12 November 1996, from which it transpires that the applicant's counsel had confined himself to making reference to some legal provisions, without submitting any substantial grounds supporting his claims. The Court of Cassation had therefore declared his appeal on points of law inadmissible for failure to comply with Section 581, para. 1 c) of the Code of Criminal Procedure, according to which an appeal must indicate the specific legal arguments and the factual elements on which each single claim is based.     COMPLAINTS   1.    The applicant alleges that the length of the criminal proceedings instituted against him exceeded the "reasonable time" referred to in Article 6 para. 1 of the Convention.   2.    Invoking Article 6 of the Convention, the applicant alleges that the Court of Cassation failed to ensure the observance of the Convention and raises doubts as to the fairness of the proceedings taken as a whole. He furthermore considers that by refusing to summon the witnesses he had requested to examine, the national authorities violated his right under paragraph 3 d) of Article 6.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 June 1996 and registered on 16 October 1996.        On 14 January 1998 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's written observations were submitted on 1 April 1998. The applicant replied on 21 April 1998.   THE LAW   1.    The applicant first complains 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 (...) hearing within a      reasonable time (...)".        The Commission notes that proceedings started on 15 March 1989, when the Mantova investigating judge summoned the applicant to appear before the Mantova District Court (see Eur. Court HR, Eckle v. Germany judgment of 15 July 1982, Series A no. 51, p. 33, para. 73), and ended on 12 November 1996, the day on which the Court of Cassation's final order was given (see Eur. Court HR, Baggetta v. Italy judgment of 25 June 1987, Series A no. 119, p. 32, para. 20). The overall length was thus seven years, seven months and twenty-seven days for three degrees of jurisdiction.        The Government observe that the length of the proceedings before the Mantova District Court and the Court of Cassation cannot be regarded as being unreasonable. As to the second instance proceedings, the Government maintain that the delay in fixing the date of the hearing was due to the excessive workload of the Brescia Court of Appeal.          The applicant argues that his case was a very simple one and contends that the excessive length is due to the conduct of the judicial authorities. He criticises the way in which the investigations have been carried out and observes that the backlog of the Brescia Court of Appeal cannot absolve the Government from complying with the "reasonable time" requirement set forth in Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission considers, in the light of the criteria established by the case-law of the Convention organs on the question of "reasonable time", and having regard to all the information in its possession, that an examination of the merits of the complaint is required.   2.    Invoking Article 6 (Art. 6) of the Convention, the applicant alleges that the Court of Cassation failed to ensure the observance of the Convention and raises doubts as to the fairness of the proceedings taken as a whole. He furthermore considers that by refusing to summon the witnesses he had requested to examine, the national authorities violated his right under paragraph 3 d) of Article 6 (Art. 6-3-d).        The Government observe that the examinations requested by the applicant would have been of no relevance and that the rejection of his appeal on points of law was due to his failure to comply with the procedural requirements laid down in Italian law.        The Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the invoked provisions as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.        In the present case, the Court of Cassation declared inadmissible the applicant's appeal on points of law because he had failed to indicate the specific legal arguments and the factual elements on which his claims were based, as provided for by Article 581, para. 1 c) of the Italian Code of Criminal Procedure. In these circumstances, where failure to respect procedural rules constitutes the reason for the refusal of a remedy, the Commission cannot consider that the requirement as to the exhaustion of domestic remedies has been satisfied (N° 10636/83, Dec. 1.7.85, D.R. 43, pp. 171, 173).        The Commission further considers that in the present case there were no special circumstances that could have absolved the applicant from the obligation to exhaust domestic remedies, according to the generally recognised rules of international law.        It follows that the applicant has not met the requirements of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies and that the application must be rejected under Article 27 para. 3 of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits of the case,      the applicant's complaint about the length of the criminal      proceedings brought against him;          DECLARES INADMISSIBLE the remainder of the application.       M.F. BUQUICCHIO                         M.P. PELLONPÄÄ      Secretary                            President to the First Chamber                of the First Chamber