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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MAJ v. ITALY - 13087/87 [1991] ECHR 14 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/14.html Cite as: (1992) 14 EHRR 405, 14 EHRR 405, [1991] ECHR 14

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In the Maj 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,

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:

_______________

Notes by the Registrar

* The case is numbered 14/1990/205/265. 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 on

1 April 1989 are applicable to this case.

_______________

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. 32-1, art. 47) of the Convention. It originated in an

application (no. 13087/87) against the Italian Republic lodged with

the Commission under Article 25 (art. 25) by an Italian national,

Mr Giuseppe Maj, on 18 July 1987.

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). On 2 May 1990 the President

granted him leave to use the Italian language (Rule 27 para. 3).

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, Viezzer, Angelucci,

Girolami, Ferraro, Triggiani, Mori, Colacioppo and Adiletta and

Others* should be heard by the same Chamber.

_______________

* 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), Viezzer

(12/1990/203/263), Angelucci (13/1990/204/264), 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)

_______________

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 on 9

July 1990 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 did not consider it necessary to submit

observations in writing.

6. On 29 August 1990 the Chamber decided to dispense with a

hearing, having found that the conditions for such derogation from

the usual procedure were satisfied (Rules 26 and 38).

7. On 31 August the Commission produced the file on the

proceedings before it, as requested by the Registrar on the

President's instructions.

8. On 3 and 25 October, respectively, the registry received the

observations of the Commission and the Government on the

applicant's claims for just satisfaction.

AS TO THE FACTS

9. Mr Giuseppe Maj, an Italian national, resides in Milan where

he is an engineer. The facts established by the Commission

pursuant to Article 31 para. 1 (art. 31-1) of the Convention are as

follows (paragraphs 13-17 of its report, see paragraph 11 below):

"13. On 24 December 1981, the car in which the applicant

and two other persons were travelling was stopped and searched

at a border post on the Italian-French frontier. In the car

the police found a hedge-slashing tool of a prohibited type,

2,270,000 lire (about 12,000 FF) and information material

concerning terrorist trials and the conditions of imprisonment

of terrorists.

14. The applicant was charged with carrying weapons

unlawfully, infringing exchange control regulations and

treasonable conspiracy.

15. On 26 December 1981, the proceedings relating to the

weapons offence were referred to the Aosta District Court.

On 28 December 1981, the Aosta public prosecutor ordered the

applicant's arrest for the other offences and sent the file to

the Bergamo public prosecutor's office.

16. A few days after his arrest, on 4 January 1982, the

applicant was provisionally released for lack of sufficient

evidence.

The Bergamo public prosecutor examined the applicant on

4 January 1982.

17. On 21 February 1985, the prosecution applied for

formal proceedings in the case, and the file was sent to the

investigating judge on 22 February 1985. On 9 September 1987,

the latter discharged the applicant, in the following terms:

'... the variety and quantity of the material seized in

the car and in the homes of the accused, their destination

(France) ... the applicant's family connections ... and his

attitude during the proceedings (even disregarding his replies

under questioning, it is enough that [the applicant] refused,

in true 'fighting communist' style, to sign the record) show

without the shadow of a doubt that the three accused are the

waters in which the terrorist fish has for years found a home,

and constitute something akin to its placenta.

As for the specific charge ... no new evidence has been

obtained different from or additional to that adduced by the

prosecution.'

18. ..."

PROCEEDINGS BEFORE THE COMMISSION

10. In his application of 18 July 1987 to the Commission

(no. 13087/87) Mr Maj complained of the length of the proceedings

conducted against him in Bergamo; he relied on Article 6 para. 1

(art. 6-1) of the Convention.

11. 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*.

_______________

* Note by the Registrar: For practical reasons this annex will

appear only with the printed version of the judgment (volume 196-D

of Series A of the Publications of the Court), but a copy of the

Commission's report is obtainable from the registry.

_______________

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 para. 1 (art. 6-1)

12. 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.

13. The period to be taken into consideration began on

24 December 1981, the date of the applicant's arrest. It ended, at

the earliest, on 9 September 1987, with the pronouncement that

there was no case to answer and, at the latest, on 12 September

1987, when the time-limit for an appeal by the prosecuting

authorities against that pronouncement expired (Article 199 of the

Code of Criminal Procedure).

14. 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.

15. 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 case was undoubtedly of some complexity owing to the

nature of the investigations to be carried out, but the applicant

does not appear to have done anything to slow down the progress of

the proceedings and there appears to be no justification for the

very lengthy period which elapsed between the examination of the

applicant by the Bergamo public prosecutor on 4 January 1982 and

his discharge on 9 September 1987. It follows that the Court

cannot regard as "reasonable" in the instant case a lapse of time

of more than five years and eight months.

There has therefore been a violation of Article 6 para. 1

(art. 6-1).

II. APPLICATION OF ARTICLE 50 (art. 50)

16. 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."

Mr Maj sought, without citing any figures, compensation for

damage and the reimbursement of expenses and fees incurred during

the proceedings before the Convention organs. On the first point

he referred, inter alia, to the protracted uncertainty in which he

claimed to have lived pending the outcome of the criminal

proceedings against him and the harm to his career.

17. The Commission did not formulate any comments, while the

Government expressed the view that at the most it would be

appropriate, if a violation were to be found, to award a modest sum

for non-pecuniary damage.

18. The evidence does not show that the applicant suffered

pecuniary damage deriving from the violation of Article 6 para. 1

(art. 6-1). On the other hand, he must have sustained a degree of

non-pecuniary damage and he incurred costs and expenses. Making an

assessment on an equitable basis, the Court awards him under these

two heads 5,000,000 Italian lire.

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 Maj

5,000,000 (five million) Italian lire for non-pecuniary damage

and 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