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You are here: BAILII >> Databases >> European Court of Human Rights >> ALIMENA v. ITALY - 11910/85 [1991] ECHR 5 (19 February 1991) URL: http://www.bailii.org/eu/cases/ECHR/1991/5.html Cite as: [1991] ECHR 5

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In the Alimena 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,

Mr 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 9/1990/200/260. 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 Protocol No. 8, 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. 11910/85) against the Italian Republic lodged

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

Mr Bernardino Alimena, on 8 November 1985.

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 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c).

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 30 March 1990 the President of the Court

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

subsequently, on 24 September 1990, accorded him legal aid (Rule 4 of

the Addendum to the Rules of Court).

3. On 21 February 1990 the President 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), Frau,

Ficara, Viezzer, Angelucci, Maj, 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), Frau (10/1990/201/261), Ficara (11/1990/202/262),

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

(14/1990/205/265), 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 Government's memorial on

31 July 1990. By a letter received on 31 August, the Secretary to the

Commission informed the Registrar that the Delegate would submit his

observations at the hearing.

6. In the meantime, on 25 June, the applicant had communicated to

the Registrar his claims for just satisfaction under Article 50

(art. 50) of the Convention (Rule 50).

7. Having consulted, through the Registrar, those who would be

appearing before the Court, the President directed on 29 August 1990

that the oral proceedings should open on 1 October 1990 (Rule 38).

8. On 31 August 1990 the Commission produced the file on the

proceedings before it, as requested by the Registrar on the President's

instructions.

9. The hearing took place in public in the Human Rights Building,

Strasbourg, on the appointed day. The Court had held a preparatory

meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr G. Raimondi, magistrato, seconded to

the Diplomatic Legal Service of the

Ministry of Foreign Affairs, Co-Agent;

(b) for the Commission

Mr S. Trechsel, Delegate;

(c) for the applicant

Mr A. Sinagra, avvocato, Counsel.

The Court heard addresses by the above-mentioned representatives.

On 25 October and 16 November 1990, respectively, the registry received

the observations of the Government and the Commission on the

applicant's claims for just satisfaction.

AS TO THE FACTS

10. Mr Bernardino Alimena, an Italian national, resides at

Belvedere Marittimo (Cosenza) where he practises as a lawyer. The

facts established by the Commission pursuant to Article 31 para. 1

(art. 31-1) of the Convention are as follows (paragraphs 14-25 of its

report, see paragraph 12 below):

"14. On 8 February 1978, the applicant was charged with contempt of

court during a hearing (Article 343 of the Code of Criminal Procedure,

CCP). He was alleged to have said to the judge, who had decided in his

absence on a case in which he was involved as counsel, even though he

had duly advised the court that he would be late: 'Such conduct is

arbitrary and improper' and, at the same time, to have thrown the file

onto the judge's desk.

15. The judge concerned immediately ordered the arrest of the applicant

and started summary proceedings for contempt. The prosecuting

authorities requested that the custodial order be discharged and that

the applicant be acquitted on the ground that his behaviour did not

constitute an offence. The applicant's lawyer pleaded that the court

had no jurisdiction within the meaning of Article 60 of the CCP (which

was subsequently amended by Law no. 879 of 22 December 1980), the first

paragraph of which stipulated:

'If criminal proceedings are opened against a judge or an officer of

the public prosecutor's office or if a judge or such an officer has

been the victim of an offence and if the proceedings are within the

jurisdiction of the judicial organ at which the judge or officer

serves, the Court of Cassation shall transfer the case to another

judicial organ with comparable jurisdiction.'

16. On 20 March 1978, the public prosecutor at Cosenza transmitted the

file to the Attorney General at the Catanzaro Court of Appeal;

on 25 March 1978, the Attorney General at the Catanzaro Court of Appeal

referred the case to the Court of Cassation.

17. By decision of 2 June 1978, the Court of Cassation referred the

case to the Potenza District Court. The file was transmitted to

it on 14 July 1978.

18. The investigation - carried out in accordance with the summary

procedure - was confined to the questioning of the applicant on

19 October 1978 and of the judge concerned on 24 April 1979. A request

by the applicant's counsel of 29 October 1978 that witnesses be heard

was not granted.

On 7 May 1979, the public prosecutor's office requested that the

applicant be summoned to appear in court.

19. On 18 November 1981, the applicant was summoned to appear at a

hearing to be held on 1 February 1982. The defendant failed to appear

and the proceedings went ahead in absentia, but the court had to

adjourn its examination of the case to 22 February 1982 in order to

hear a witness and again to 22 March 1982 for the same reason. On this

last date, at the close of the hearing at which the applicant was

present, the Potenza District Court, after allowing mitigating

circumstances, gave the applicant a suspended sentence of eight months'

imprisonment. It decided that the conviction would not appear in the

applicant's criminal record. The judgment was filed with the court

registry on 29 March 1982.

20. The applicant appealed against the judgment to the Potenza Court

of Appeal. He filed his pleadings on 5 May 1982. The file was

transmitted to the Potenza Court of Appeal on 29 September 1982.

On 1 December 1982, the applicant was summoned to appear

before the Potenza Court of Appeal.

21. A hearing fixed for 3 February 1983 was adjourned as the applicant

had applied for the proceedings at first instance to be set aside on

grounds of nullity.

The case was listed for hearing on 24 March 1983. On this date the

Court of Appeal upheld the judgment. Its decision was filed with the

registry on 11 April 1983.

22. The applicant appealed to the Court of Cassation on 24 March 1983.

He filed his pleadings on 11 May 1983. The file was sent to the Court

of Cassation on 4 June 1983.

On 14 December 1983, the Court of Cassation set aside the judgment

complained of for lack of reasons and referred the case to the Salerno

Court of Appeal. The file reached the Salerno Court of Appeal

on 21 April 1984 and on 25 September 1984 the applicant was

summoned to appear.

23. The Salerno Court of Appeal fixed a hearing for 13 November 1984.

At the hearing it ordered a further hearing and adjourned the

proceedings to 17 January 1985. At this hearing, the Court heard the

parties and the witnesses and then adjourned the hearing to

21 February 1985. On this date, the Court of Appeal acquitted the

applicant on the ground of insufficient evidence. Its decision was

filed with the registry on 5 March 1985. Since he considered that his

acquittal should have been unqualified, the applicant appealed to the

Court of Cassation and filed his pleadings on 17 April 1985.

24. The Court of Cassation fixed the hearing of the appeal for

27 June 1985 and notified the applicant's lawyer of the date thereof

by letter of 15 May 1985.

25. When he went to the Court of Cassation on 27 June 1985, the

applicant's lawyer learned that the Court had examined the appeal the

previous day, without having notified him of the change of date, and

had dismissed it. The decision of 26 June 1985 was filed with the

Court registry on 22 November 1985."

PROCEEDINGS BEFORE THE COMMISSION

11. In his application of 8 November 1985 to the Commission

(no. 11910/85) Mr Alimena complained of the length of the proceedings

and of a violation of the rights of defence. He relied on

Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the Convention.

12. 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 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c). 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 195-D of

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

Commission's report is obtainable from the registry.

_______________

FINAL SUBMISSIONS TO THE COURT BY THE GOVERNMENT

13. At the hearing on 1 October 1990 the Government confirmed the

submission put forward in their memorial, in which they requested the

Court to hold "that there has been no violation of the Convention in

the present case".

AS TO THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 PARAS. 1 and 3 (c)

(art. 6-1, art. 6-3-c)

14. The applicant claimed that his case had not been examined

within a "reasonable time"; in addition he complained that the Court

of Cassation had ruled on his appeal in the absence of his lawyer.

He relied on Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) of the

Convention, according to which:

"1. In the determination ... of any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time by [a]

... tribunal ...

...

3. Everyone charged with a criminal offence has the following minimum

rights:

...

(c) to defend himself in person or through legal assistance of his own

choosing or, if he has not sufficient means to pay for legal

assistance, to be given it free when the interests of justice so

require;

..."

The Government disputed this view, whereas the Commission

subscribed thereto.

A. Article 6 para. 1 (art. 6-1)

15. As regards the contested criminal proceedings, the period to

be taken into consideration began on 8 February 1978 when Mr Alimena

was charged and arrested during a hearing. It ended on 27 June 1985

when he learnt that the Court of Cassation had, on the previous day and

in his absence, dismissed his appeal (see, amongst various authorities

and mutatis mutandis, the Baggetta judgment of 25 June 1987, Series A

no. 119, p. 32, para. 20).

16. 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.

17. 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).

In fact the case was a very simple one. Moreover the applicant's

conduct gave rise to hardly any delay. There were, however, long

periods of inactivity in the proceedings which the applicant alleged

were due to faults inherent in the legal and court system in Italy and

for which no satisfactory explanation was given by the Government.

It follows that the Court cannot regard as "reasonable" in the instant

case a lapse of time of more than seven years and four months.

There has therefore been a violation of Article 6 para. 1 (art. 6-1).

B. Article 6 para. 3 (c) (art. 6-3-c)

18. Mr Alimena complained that the Court of Cassation dismissed his

appeal after having held a hearing in the absence of his lawyer; the

oral proceedings which had been set down for 27 June 1985 took place

a day earlier without the lawyer concerned receiving any prior

notification.

19. The Government considered that the applicant did not suffer any

damage as a result since his second appeal, which was identical to the

first - lodged on 24 March 1983 -, had no prospects of success.

20. The Court notes in the first place that a violation of the

Convention is conceivable even where no damage arises (see, inter alia,

the Artico judgment of 13 May 1980, Series A no. 37, p. 18, para. 35).

It observes further that the competent Italian authorities were under

a duty to take steps to ensure that the applicant enjoyed effectively

the right to which they had recognised he was entitled, namely the

possibility of being represented by a lawyer at the examination of his

appeal (ibid., p. 18, para. 36). They in fact deprived him of legal

assistance which could have helped him in his attempt to secure an

unqualified acquittal.

Accordingly, there has been a violation of Article 6 para. 3 (c)

(art. 6-3-c).

II. APPLICATION OF ARTICLE 50 (art. 50)

21. 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."

A. Damage

22. Mr Alimena claimed compensation of 70,000,000 Italian lire for

pecuniary damage and at least 100,000,000 lire for non-pecuniary

damage. He cited the harmful consequences of the length of the

proceedings on his life and on his career as a lawyer.

23. There is no evidence - as the Commission and Government

correctly pointed out - that he suffered pecuniary damage as a result

of the failure to conduct the proceedings within a reasonable time.

He must nevertheless have suffered a degree of stress which calls for

financial reparation despite the fact that the proceedings resulted in

an acquittal - which was in any case pronounced only on the grounds of

insufficient evidence. The Court considers it equitable to award him

10,000,000 lire under this head. As to the impugned infringement of

the rights of the defence, on the other hand, the finding of a

violation of Article 6 para. 3 (c) (art. 6-3-c) constitutes just

satisfaction in this instance.

B. Costs and expenses

24. The applicant claimed a total of 29,000,000 lire for

lawyers' fees and expenses incurred in the national courts and then

before the Convention organs.

Having regard to the information available to it, the observations

submitted and its case-law in this field, the Court, making an

assessment on an equitable basis, awards him 3,000,000 lire for such

of his costs and expenses as are not covered by legal aid.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 6 paras. 1

and 3 (c) (art. 6-1, art. 6-3-c) of the Convention;

2. Holds that the respondent State is to pay to Mr Alimena

10,000,000 (ten million) Italian lire for non-pecuniary damage and

3,000,000 (three million) lire for costs and expenses;

3. Dismisses the remainder of the claim for just satisfaction.

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